Full implementation of 13A – Final solution to ‘national problem’ or end of unitary state? – Part VI

by Kalyananda Tiranagama
Executive Director
Lawyers for Human Rights and Development

(Part V of this article appeared in The Island of 02 Oct. 2023)

Six months later, in July 1986, further talks were held between the Sri Lankan government and an Indian delegation led by P Chidambaram, Minister of State, a person from Tamil Nadu. Based on those talks, a detailed Note prepared containing observations of the Indian government on the proposals of the Sri Lanka government as the Framework was sent to the Indian Government.

The following three paragraphs from this Note were cited in the Judgement of Wanasundara J in the 13th Amendment Case as relevant for its determination:

1. A Provincial Council shall be established in each Province. Law-making and Executive (including Financial) powers shall be devolved upon the Provincial Councils by suitable constitutional amendments, without resort to a referendum. After further discussions subjects broadly corresponding to the proposals contained in Annexe 1 to the Draft Framework of Accord and Undertaking and the entries in List ll and List III of the Seventh Schedule of the Indian Constitution shall be devolved upon Provincial Councils.

It is strange that this paragraph suggests to bring constitutional amendments to devolve Law-making and Executive (including Financial) powers on the Provincial Councils, without resort to a referendum. It is not clear on whose suggestion this phrase – without resort to a referendum – was included, Sri Lanka or India? But it is most likely that it was India, feeling the sentiments of the vast majority of the people in the South and knowing the most probable outcome of a referendum.

Inclusion of this phrase – without resort to a referendum – may have had some impact on the minds of the Judges in arriving at a determination on the Bills.

There can be no doubt that the phrase – the entries in List ll and List III of the Seventh Schedule of the Indian Constitution shall be devolved upon Provincial Councils – included on the suggestion of Indian side.

2. In the Northern Province and in the Eastern Province the Provincial Councils shall be deemed to be constituted immediately after the constitutional amendments come into force……..

What does this mean? Can they come into being even before the Provincial Councils Bill and the Provincial Councils Elections Bill are passed and the Elections held? Where is People’s sovereignty? This also appears to be an Indian demand.

3. ‘‘In a preamble to this Note, it was agreed that suitable constitutional and legal arrangements would be made for those two Provinces to act in co-ordination. In consequence of these talks a constitutional amendment took shape and form and three lists – (1) The Reserved List (List II), (2) The Provincial List (List I); and (3) The Concurrent List (List Ill) too were formulated.’’

‘Suitable constitutional and legal arrangements to be made for those two Provinces to act in co-ordination’. This is another subtle and mild formulation used to convey the idea that the Northern and Eastern Provinces would be merged into one unit.

Mr. Chidambaram may have seen to it that the aspirations of the TULF are incorporated into the agreement to a certain extent.

‘‘The Bangalore discussions held between President J. R. Jayewardene and Indian Prime Minister Rajiv Gandhi in November 1986 were the next stage of the discussions. At the Bangalore discussions Sri Lanka had to agree to all the Cardinal Principles of the TULF and other Tamil militant groups, which Sri Lanka had totally refused even to discuss at Thimphu talks and not included in the Draft Terms of Accord and Understanding reached in New Delhi in September 1985.

The Sri Lanka government’s observations on the Working Paper on Bangalore Discussion dated 26th November 1986 show that the following suggestions made by the Indian Government were substantially adopted:

Recognition that the Northern and Eastern Provinces have been areas of historical habitation of Sri Lankan Tamil speaking peoples who have at all times hitherto lived together in the territory with other ethnic groups;

Northern and Eastern Provinces should form one administrative unit for an interim period and that its continuance should depend on a Referendum;

The Governor shall have the same powers as the Governor of a State in India.

India had also proposed to the Sri Lankan government that

the Governor should only act on the advice of the Board of Ministers and should explore the possibility of further curtailing the Governor’s discretionary powers;

provision be made on the lines of Article 249 of the Indian Constitution on the question of Parliament’s power to legislate on matters in the Provincial list;

Article 254 of the Indian Constitution be adopted in regard to the Provincial Council’s power to make a law before or after a parliamentary law in respect of a matter in the Concurrent List.

To ensure that the Government of Sri Lanka would comply with these suggestions in enacting laws for the implementation of these suggestions, the two most crucial suggestions were included in the Indo Lanka Accord signed by President J. R. Jayewardene and Prime Minister Rajiv Gandhi on the 29th July 1987 in Colombo.

The First part of the Indo-Lanka Accord reaffirmed what was agreed at Bangalore that (a) the Northern and Eastern Provinces have been areas of historical habitation of Sri Lanka Tamil Speaking people who at all times hitherto lived together in the territory with other ethnic groups. It also provided for (b) these two Provinces to form one administrative unit for an interim period and (c) for elections to the Provincial Council to be held before 31st December 1987.

From the above material, it clearly appears beyond any doubt that the 13th Amendment and the Provincial Councils are not a solution reached through consensus between two independent states following free negotiations, but something forcibly imposed on Sri Lanka by India, with a view to placating the demands of the TULF and the other Tamil groups, contrary to the wishes of the Govt of Sri Lanka.

This explains why Indian political leaders and high officials of the Indian Govt frequently visit Sri Lanka and meet our political leaders demanding the full implementation of the 13th Amendment. That is why leaders of our Tamil Political Parties frequently rush to the Indian High Commission complaining of their grievances and requesting the Indian High Commissioner to bring pressure on our Govt to grant their demands.

As shown above, due to India’s pressure, Sri Lanka had to adopt the three main proposals made by India at the Bangalore discussions. If Sri Lanka had adopted all the proposals as suggested by India and implemented them it would have been the end of the Unitary State of Sri Lanka and created a fully Federal State. However, President Jayewardene, as a shrewd and far-sighting politician, has taken care not to give effect to some of the proposals at the implementation stage.

President Jayewardene has not adopted the Indian proposal that ‘the Governor should only act on the advice of the Board of Ministers and should explore the possibility of further curtailing the Governor’s discretionary powers’. Under the 13th Amendment the Governor, as the representative of the President, is vested with undiminished power of exercising his discretion, not on the advice of the Board of Ministers of the Provincial Council, but as directed by the President. It is this Governor’s unfettered discretion that has prevented Sri Lanka from becoming a full Federal State, with Provincial Councils as federal units.

The majority Judgement in the 13th Amendment case explains how this Governor’s discretion has prevented Sri Lanka from becoming a fully federal state, thus:

‘‘With respect to executive powers an examination of the relevant provisions of the Bill underscores the fact that in exercising their executive power, the Provincial Councils are subject to the control of the Centre and are not sovereign bodies.

‘‘Article 154C provides that the executive power extending to the matters with respect to which a Provincial Council has power to make statutes shall be exercised by the Governor of the Province either directly or through Ministers of the Board of Ministers or through officers subordinate to him, in accordance with Article 154F.

‘‘Article 154F states that the Governor shall, in the exercise of his functions, act in accordance with such advice, except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion.

‘‘The Governor is appointed by the President and holds office in accordance with Article 4(b) which provides that the executive power of the People shall be exercised by the President of the Republic, during the pleasure of the President (Article 154B (2)). The Governor derived his authority from the President and exercises the executive power vested in him as a delegate of the President. It is open to the President therefore by virtue of Article 4(b) of the Constitution to give directions and monitor the Governor’s exercise of this executive power vested in him.

‘‘ Although he is required by Article 154F(1) to exercise his functions in accordance with the advice of the Board of Ministers, this is subject to the qualification “except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion.” Under the Constitution the Governor as a representative of the President is required to act in his discretion in accordance with the instructions and directions of the President.

‘‘ Article 154F(2) mandates that the Governor’s discretion shall be on the President’s directions and that the decision of the Governor as to what is in his discretion shall be final and not be called in question in any court on the ground that he ought or ought not to have acted on his discretion.

‘‘ So long as the President retains, the power to give directions to the Governor regarding the exercise of his executive functions, and the Governor is bound by such directions superseding the advice of the Board of Ministers and where the failure of the Governor or Provincial Council to comply with or give effect to any directions given to the Governor or such Council by the President under Chapter XVII of the Constitution will entitle the President to hold that a situation has arisen in which the administration of the Province cannot be carried on in accordance with the provisions of the Constitution and take over the functions and powers of the Provincial Council (Article 154K and 154L), there can be no gainsaying the fact that the President remains supreme or sovereign in the executive field and the Provincial Council is only a body subordinate to him.’’ (Pp. 322 – 323)

That is why the Tamil political parties stand for the abolition of Executive Presidency.

(To be continued)