By Austin Fernando

I have recently read a speech by Tamil National Alliance (TNA) Leader R Sampanthan, delivered in 2017. This excellent presentation supported the Thirteenth Amendment (13A) to the Constitution. In appreciation of his intelligent arguments, I share his thinking not to canvass for 13A but to broaden the discussion with forgotten overlapping references that need to be factored in.

 Status of 13A

Devolution was thrust upon us, consequent to the Indo-Sri Lanka Accord of 1987. Then, certain groups rejected this pact as well as 13A. Their position remains unchanged.  

  At the outset, we must remind ourselves that devolution was introduced to facilitate conflict resolution. Someone may argue that 13A was legalized at a time when terrorists held sway, and, therefore, the incumbent government need not stick to the beaten track. TNA politicians may argue that the reasons for, and the outcomes of, the conflict remain although terrorism is no more. 

The performance of the Provincial Councils (PCs) is barely satisfactory in many respects. Some critics have dubbed them ‘white elephants.’ I do not subscribe to such extreme criticisms because one reason for the weakness of the PCs is the lack of ‘center-periphery cooperation’. Decades ago, Professor GL Peiris emphasized that the PCs needed empowerment for financing, establishment management, and statute making. To date, these matters remain as issues.    

Some others who see intrinsic fault lines in devolution oppose PCs based on concept, content, and politics. They contend that devolving police and land powers, the amalgamation of provinces, etc., trespass the sovereignty and endanger national security.  

The vehement call for abolishing the 13A has originated from politicians, supported by media personnel, and a section of the Buddhist monks. Another alternative proposition is to withdraw certain functions (e.g. land and police powers) to impede PCs when drafting a new Constitution.   

Indians and 13A

Concurrently, there are some predicting that India will take up cudgels if the 13A is tampered with. Arguments are submitted against Indian interventions on devolution.

One reason adduced is that India failed to adhere to the Accord (e.g. disarming the LTTE) and therefore, its demand that we fully implement the devolution of power is unfair.

Secondly, they argue that foreign interference with our constitutional processes is inappropriate. They point out that the Indian Government repealed Article 370 with Article 35A in 2019, affecting Jammu-Kashmiri laws, including citizenship, property ownership, and fundamental rights, and silenced critics by stating it was an “Indian internal affair.” Hence, they argue that Sri Lanka should follow suit if India objects to abolishing the 13A.  

  Thirdly, they contend that the Indian government changed Jammu Kashmir rules to allow the Union Government to release lands to Indians to attract development/investment and hence India cannot object if we centralize land administration.

Fourthly, they argue that Indians perform asymmetrical administration in Himachal and Uttarkhand States, as against centralized Jammu-Kashmir, and therefore, by amending 13A, we could do similarly in selected Provinces.   

India stands for sovereignty, independence, and the territorial integrity of Sri Lanka, as repeatedly mentioned by Indian leaders. Additionally, there have been commitments made by Indian and Sri Lankan leaders and internationals to promote equal treatment to minorities.

My attempt is to refer to some such, extracted from the quoted speech, add a few more experiences to demonstrate that abolishing 13A will be considered a negative action in resolving conflict-related issues and there could be other solutions.   

Probing Indo-Lanka interactions  

 Let us turn to TNA Leader’s speech. In November 2006, Indian Foreign Secretary Shivashankar Menon has expressed to President Mahinda Rajapaksa: “India looks forward to an early ‘comprehensive political settlement’ of the ethnic issue. It must take into account the aspirations of all sections, including the Tamils.” 

This was nearly twenty years after the Accord and while the conflict was ongoing. Responding, President Mahinda Rajapaksa has detailed the work by the All-Party Representatives Committee (APRC) and the Committee of Experts. But it is well-known that these outputs did not matter to his government. It can be likened to the Indian expectations to implement the 13A during the conflict. 

At one stage, President Mahinda Rajapaksa was excessively supportive of ‘power-sharing.’  Addressing the inaugural Meeting of the APRC and the Experts Committee, he said: “The unity, territorial integrity, and sovereignty of our country must be preserved” and added, “Our objective must be to develop a just settlement within an undivided Sri Lanka.” Great. This is the common aspiration of people, TNA, and India. While identifying the roadblocks, he expected the people in their localities must “take charge of their destiny and control their politico-economic environment.” This is the Principle of Subsidiarity in action. 

He said: “Any solution must be seen as one that stretches to the maximum possible devolution, without sacrificing the sovereignty of the country. Given the ground situation, given the background to the conflict, it, therefore, behooves on particularly the majority community to be proactive in striving for peace ….”  This must have been an elixir to Indians and TNA! 

Next, Minister Basil Rajapaksa went to India (October 2008) and a statement said: “Both sides discussed the need to move towards a peacefully negotiated political settlement on the island including the North …. The Indian side called for the implementation of the 13A and greater devolution of powers to the Provinces. Minister Basil Rajapaksa emphasized that the President of Sri Lanka and his Government were committed to a political process that should lead to a sustainable solution”. Elixir again!

His message to India was that we had passionately committed to a political process. He is expected to be in the Cabinet soon and knowing the Indian External Affairs Minister Dr. Jaishankar’s ways personally, I may expect a reminder of his message.

PM Manmohan Singh, after this visit of Minister Basil Rajapaksa, (November 2008), informed President Mahinda Rajapaksa that Colombo must create conditions for meeting “legitimate political aspirations” of the Tamils under the devolution package (13A). Irrespective of domestic politics Indians were consistent in demands; Sri Lankans were consistent in declaring unfulfilled hopes!

Prof. Peiris visited India (May 2011) and mentioned “A devolution package building upon the 13th Amendment would contribute towards creating the necessary conditions for such reconciliation.” Further, he referred to the work of the Lessons Learnt and Reconciliation Commission (LLRC), which made extremely attractive, pro-peace, and reconciliation-oriented recommendations. No wonder when Foreign Minister Peiris spoke so favourably on the 13A, Indians continuously and without reservations harped on its implementation.

PM Singh (June 2011) said in Lok Sabha: “The decimation of the LTTE was something good. But the Tamil problem does not disappear, with the defeat of the LTTE. The Tamil population has legitimate grievances. They feel they are reduced to second-class citizens. And our emphasis has been to persuade the Sri Lankan Government that we must move towards a new system of institutional reforms, where the Tamil people will have a feeling that they are equal citizens of Sri Lanka, and they can lead a life of dignity and self-respect. It is not easy.”

Nevertheless, reverting to 2019, one may question whether the Indian politicians’ minds were responsive to the grievances/inequalities their Muslim brethren complained of when the Citizenship Amendment Act, National Register of Citizens, and National Population Register laws were launched.  

Two months after PM Singh’s statement, Indian External Affairs Minister S. M. Krishna said in Lok Sabha: “The Government has also articulated its position that the end of the armed conflict in Sri Lanka created a historic opportunity to address all outstanding issues relating to minority communities in Sri Lanka, including Tamils. The Joint Press Release of May 17, 2011 states that all such outstanding issues had to be settled in a spirit of understanding and mutual accommodation imbued with a political vision to work towards genuine national reconciliation.

The External Affairs Minister of Sri Lanka affirmed his Government’s commitment to ensuring expeditious and concrete progress in the ongoing dialogue between the Government of Sri Lanka and representatives of Tamil parties and that a devolution package building upon the 13th Amendment would contribute towards creating the necessary conditions for such reconciliation.” Sensibly we may agree.

The Indian Official Spokesman made a statement after the LRRC Report: “In this context, we have been assured by the Government of Sri Lanka on several occasions in the past, of its commitment towards pursuit of a political process, through a broader dialogue with all parties, including the TNA, leading to the full implementation of the 13th Amendment to the Sri Lankan Constitution, and to go beyond, so as to achieve meaningful devolution of powers and genuine national reconciliation.” Thus, Indian expectation rightly settled on an assurance ‘beyond 13A.’  

  When even the easily implementable LRRC recommendations were not executed by the government that appointed it, whether India could await further contributions to reconciliation was an issue. Indians may comment that every Sri Lankan government has only kindled hopes, but not delivered. The post-LLRC- UNHRC Resolution (2012) demanded the implementation of constructive LLRC recommendations and strengthening devolution, but we failed to do so.

The Indian Minister of External Affairs made a statement (January 2012) in the presence of our Minister of Foreign Affairs, from which I quote: “The government of Sri Lanka has on many occasions conveyed to us its commitment to move towards a political settlement based upon the full implementation of the 13A to the Sri Lankan Constitution  and building on it so as to achieve meaningful devolution of powers.” The Indian Minister has echoed the stark reality.

Then again, the Indian Prime Minister Manmohan Singh said that India was inclined to vote in favour” of a resolution on promoting reconciliation and accountability in Sri Lanka at the 19th session of the UNHRC. His inclination was adopted by voting against us. According to PM Singh, its objective was not wanting to infringe our sovereignty, “…. but concerns should be expressed so that Tamil people can get justice and lead a life of dignity.” In almost all Indian statements a few buzz words- ‘equality, dignity, justice, self-respect, political process, peace’ appear.

 There could be many more statements by Indian and Sri Lankan politicians and bureaucrats, unknown to us, confirming the need and commitment to implement the 13A to resolve the Tamils’ difficulties. But since our President was not in active politics per se in 2017 like his brothers and other Ministers, some of these statements may be new to him. However, I may remind two recent relevant statements, most probably known to him, worthy of consideration to understand the Indian attitudes on 13A.

PM Narendra Modi during President Gotabaya Rajapaksa’s State Visit, like other interlocutors, said: “I am confident that the Government of Sri Lanka will carry forward the process of reconciliation, to fulfill the aspirations of the Tamils for equality, justice, peace, and respect. It also includes the implementation of the 13th amendment.” Note the buzz words. President Gotabaya Rajapaksa, without responding directly kept aloof, imaging him “the President of all Sri Lankans, irrespective of ethnicity or religion or voting choices.”

Joint Secretary Amit Narang’s quote on India Sri Lanka Virtual Bilateral Summit – October 26th, 2020- stated that PM Modi has insisted on PM Mahinda Rajapaksa that “Sri Lanka must implement its 13th constitutional amendment to achieve peace and reconciliation…. PM Modi called on the new Government in Sri Lanka to work towards realizing the expectations of Tamils for equality, justice, peace, and dignity.” Buzz words: setting apart political ethics, it is ‘must implement its 13A’ and not ‘may.’ With so many positive quotes stated above I am not surprised of this insistence.  

These are ‘oven-fresh’ statements (latter only a fortnight old) and thoughts well embedded in PM Modi’s memory. We should not dupe ourselves into believing that PM Modi forgets easily and will give up demands or forgive when one repeatedly frustrates India! Whether it is Modi or Singh or Krishna or Menon, the buzz words are the same.

Here, PM Modi, like PM Singh (in 2012) expressed his “concerns”. I wish he will refrain from acting like PM Singh as regards the UNCHR 2021. We must remember that irrespective of political divides, for political expediency, Indian politicians capitalize on the Tamil aspirations.

Against this background, President Gotabaya Rajapaksa has withdrawn from promoting “national integration and reconciliation” by repealing Article 33(1)(b) under the mandated presidential duties in 19A. If it seriously conveys his unwillingness to undertake these two duties, abolishing 13A will surely lead to an undesirable reaction.  

International commitments

Besides Indians, Sri Lanka has been under the international microscope regarding peacemaking and power-sharing, commencing from Thimpu, extending to Peace Talks, with Ban Ki-Moon, and UNHRC, etc.

A notable event during the Peace Talks was the declaration of the Oslo Communique. Prof. Peiris led the government delegation, and I witnessed his excellent exposition with clarity, resonating factual arguments, and vast knowledge to convince Anton Balasingham, that LTTE should agree to power-sharing, without separation.  In a lighter vein, I am reminded how with Professor Peiris’s unmatched academic onslaught (which I adored), Anton Balasingham cut-short the discussion and retreated for external consultations—probably with Prabhakaran.

It was Prof Peiris -the Man of the Day- who pushed for the Oslo Communique. The parties agreed “to explore a solution founded on the principle of internal self-determination in areas of historical habitation of the Tamil-speaking people, based on a federal structure within a united Sri Lanka.”

At the media conference, Prof Peiris praised extensive power-sharing within a one-county framework, sans cessation, and added, “Now if we believe in a political solution if we are renouncing war…. there could not be any other rural tribal except power-sharing – except the basis, the character of a federal solution.”

 The 13A is less devolutionary and federalist in content than the Oslo Communique that spoke of historical habitation and federal structure. Therefore, Prof. Peiris could now forget Oslo and take the lead in calming down protesters against 13A. Without any disrespect to Minister Ali Sabry, I may say that Prof. GL Peiris is the best bet to deal with 13A with his experience (especially with Indians). Paradoxically, it is also his disqualification, for his past stance is not in line with calls for abolishing 13A!

After  defeating the LTTE, President Mahinda Rajapaksa stated to UN Secretary-General Ban Ki-Moon that his firm resolve was ‘to proceed with the implementation of the 13th Amendment, as well as, to begin a broader dialogue with all parties, including the Tamil parties in the new circumstances, to further enhance this process and to bring about lasting peace and development in Sri Lanka.” After three days, a resolution was submitted at the UNHRC, Geneva confirming his stances with Ban Ki-Moon. It was a commitment to implementing the 13A. For the first time, he made 13A a multilateral commitment.  

President Sirisena-PM Wickremesinghe government went a step further by incorporating it in October 2015 UNHRC Cosponsored Resolution. They failed to pass a new Constitution or move-on with 13A. More international attention was drawn to 13A.

Potential political manipulations

In the late 1990s, there were government proposals to create Regional Councils (RCs) – i.e. North-Eastern and South-Eastern RCs and even to create a center-controlled Ampara Electorate, to enable the establishment of the latter RC. Non-contiguous Muslim RC was another concept floated. SLMC Leader Mr. Ashroff was one keen supporter of those proposals.

The abolition of 13A will create a void. Muslim Parliamentarians who supported the 20A may expect Minister Ali Sabry and Romesh de Silva Committee to incorporate the said RCs proposal in the proposed Constitution, sometimes with revisions more favourable to the Muslims. This is a hypothetical situation, but those who call for abolishing 13A should take careful note of. They must be alert to political manipulations because the wrong judgment will cause more trouble than 13A.

Conclusion           

In summary, the opponents of 13A, who demand its abolition had better heed the domestic constitutional, political, institutional formations, bilateral agreement with India, many commitments made especially to India and international stakeholders in multilateral agencies. etc. If the decision is not to abolish, the government will be answerable to nationalistic elements who predict political, security, economic, and political organizational risks.  

Since the country is faced with a severe economic crisis, the international dimensions thereof are extremely important. As Dr. Jehan Perera writes: “In dealing with international governments, it is equally, if not more, important to keep commitments. The international community of governments is not as gullible as the voting public often is.”  This was written during Mahinda Rajapaksa Regime. Now, it is Gotabaya Rajapaksa regime. But irrespective of government changes, the thinking of the international community remains the same as for Sri Lanka’s commitments.

 Policies of the political parties that have been in power in India have been consistent as regards 13A and the issues Tamils are faced with. Nevertheless, India’s focus has shifted from devolution to Indo-Pacific, Chinese threats, free trade, investments, etc. and the possibility may exist of settling outstanding issues to mutual benefit (as Minister Krishna has said) “in a spirit of understanding and mutual accommodation imbued with a political vision.”

Abolishing 13A may entail a price payable geopolitically, politically, economically, diplomatically, security-wise, etc. Those who push for abolishing 13A must evaluate the potential balance sheet, weigh alternatives through negotiations and compromises. Forgetting these available options and to be overenthusiastic about their two-thirds majority, which can be used to abolish 13A may not mean happy hunting or a happy ending.