Thirteenth Amendment plus … a look at probabilities..
Posted on July 18th, 2009

by Foxwatch Courtesy The Island 

The terrorist road to Eelam has been closed, thanks to the courage of the Commander-in-Chief and his brilliant team of leaders and fighting men. But the LTTE always had a multi-pronged drive for Eelam, and the LTTE, its diaspora, and countries whose intentions are unclear, are pressing for the re-opening of Route 13A – the political road to Eelam, the Thirteenth Amendment. And not merely 13A, but 13A Plus.

Independence, Sovereignty, Unity and Territorial Integrity

The implications of 13A deserve to be discussed as calmly as possible, without labelling any views as extremist, chauvinist, racist and similar labels that came into vogue when the Professor’s devolution packages of the 1990s were criticised. This note will try to explore some of the issues, giving primacy to a) what the state is required to do by Article 27 (3) of the Constitution, i.e., “to safeguard the independence, sovereignty, unity and territorial integrity of Sri Lanka “; and b) safeguarding the nature of the state as declared in Article 2: of the Constitution – “The Republic of Sri Lanka is a Unitary State.”

Thirteenth Amendment

The genesis of 13A is relevant, and will be dealt with later. Suffice it to say at this point that it was the outcome of sustained pressure by India in 1987 to thwart the successful Vadamarachchi offensive and to impose a political framework which would protect the Tamils and the LTTE.

In a nutshell, the Thirteenth Amendment to the Constitution, certified on November 14, 1987, provided for the establishment of nine Provincial Councils and for two or three of these PCs to be merged (evidently with the Northern, Eastern and possibly Uva Provinces in mind) The Amendment vested PCs with substantial legislative, executive, judicial and administrative powers. Subjects of government were allocated under three lists – a Provincial Council List, a Reserved List, and a Concurrent List The Provincial List included matters which could seriously affect security and the economy, such as Police and Public Order, Agriculture, Land Use, Land Settlement, and Irrigation.

The diluting of central authority by Provincial and Concurrent Lists raised serious questions of sovereignty and territorial integrity, and their compatibility with the unitary state. In addition, the actual allocation of subjects, between centre and provinces sowed the seeds of continuous disputes between centre and provinces about jurisdiction. This was no ordinary amendment, but one which threatened the very existence of Sri Lanka.

Fragile Balance

Naturally the question arose whether such a drastic change in governance was in accordance with the Constitution, and the Thirteenth Amendment and the consequent Provincial Councils Bill were referred to the Supreme Court. Five judges ruled that the unitary state remained unaffected, while four held to the contrary and ruled that the changes needed a Referendum. The narrow margin suggests that the constitutionality of the Thirteenth is on a knife’s edge, and that the grant of more powers to Provincial Councils would tip the balance away from a unitary state towards federation.

Background – The Accord

Why then did we enact legislation fraught with such problems? The Thirteenth was a consequence of the Indo-Lanka Accord of July 1987. The Accord was forced on Sri Lanka by India, virtually at gunpoint, after India had a) ordered a halt to the army’s successful Vadamarachchi operation which was about to destroy the LTTE; b) unilaterally despatched a “flotilla” of boats to land cargo in Jaffna, only to have it turned back by the Navy; and c) then sent airplanes escorted by fighter jets, “ƒ”¹…”ostensibly to drop parcels of food over the allegedly starving population of Jaffna, but in reality to demonstrate its muscle to Sri Lanka.

After this softening up of Sri Lanka, the Indo-Lanka Accord was signed in July 1987. There is no question that the Accord was signed under duress, and its validity is suspect for that reason alone.

The Accord, explained by Rajiv Gandhi

The Thirteenth, now being touted as an enlightened exercise in the devolution of power, was in fact an Indian coup to rescue the LTTE from annihilation and boost their push for a separate state. Note how the partial implementation of the Thimpu demands of 1985 (distinct nationality, traditional homelands, self-determination) were highlighted in the triumphal statement of Indian PM Rajiv Gandhi to the Indian Parliament on July 31, 1987.

“We have structured a framework for a durable solution to Sri Lanka’s ethnic problem. The Agreement meets the basic aspirations which have animated the Tamils’ struggle, namely, the desire to be recognised as a distinct ethnic entity; political autonomy for managing their political future; and appropriate devolution of governmental power to meet this objective, the recognition of the Northern and Eastern Provinces of Sri Lanka as areas of historical habitation of the Tamils and the acknowledgment and designation of Tamil as an official language of Sri Lanka.

The Agreement constitutes the Eastern and Northern Provinces of Sri Lanka into one administrative unit with an elected Provincial Council; and a Chief Minister. Powers would be devolved… to ensure a full measure of autonomy to the Provinces in Sri Lanka.”

On August 2, 1987, Rajiv Gandhi told a public meeting in Madras that “The Agreement secures everything that the Sri Lankan Tamils had demanded, short of breaking Sri Lanka’s unity. In fact, it goes well beyond the initial demands of the Sri Lankan Tamils. Under the Agreement, approximately one-third of Sri Lankan territory will be made into a single province where the Tamils will have a clear majority. They will have regional autonomy comparable to State governments in India … Every reasonable demand [of the Tamils] has been met.” (Emphasis added.)

Complying with the Accord

It was under Clause 2.13 of the Accord, which required the GOSL to implement the proposals “forthwith” that the Thirteenth was enacted. The Accord did not specify what type of legislation would be required to merge the Northern and Eastern provinces; the GOSL decided through the Thirteenth to introduce the system of island- wide Provincial Councils and the division of existing unitary powers into three sectors, with subjects specified in a Reserved List (for the centre), a Provincial List (for Provinces) and a Concurrent List (for both centre and provinces). There is a cryptic reference in Clause 2.15 of the Accord to “acceptance of proposals negotiated from 4.5.1986 to 19.12.1986.” These were not specified, which is unsatisfactory. Perhaps the structure of Provincial Councils and division of powers was among the “proposals negotiated”, whatever they were.

Emerging Demand-13A Plus – For A Start!

The ground situation did not permit the GOSL to devolve police and land powers to the Northern Province. The demand currently, from the LTTE, the Tamil diaspora, and the LTTE’s western backers, with India quietly stiffing the pot, is not only to “fully implement” the Thirteenth but to go beyond it, i.e., for Thirteenth Plus. This even though Rajiv Gandhi had said (see above):: “The Agreement secures everything that the Sri Lankan Tamils had demanded short of breaking Sri Lanka’s unity. In fact, it goes well beyond the initial demands of the Sri Lankan Tamils. The Plus, typically, has not been specified. The pressure keeps escalating, and one formulation even calls for a political solution which goes well beyond the Thirteenth Amendment, for a start. And considering the narrow majority decision of the Supreme Court, it is possible that any further enhancement of Provincial powers would prejudice the unitary status of Sri Lanka and perhaps require a new Constitution.

Costs/Risks and Benefits

If 13A Plus is enacted, what are the risks and benefits for Sri Lanka? A complete assessment is not possible because the all- important “Plus” is not known. It could include new provisions for a North-East merger or, as has been mentioned, more autonomy for the Provinces. Given this gap in the public knowledge, we set out what we can. We will assume that Thirteen Plus will be drafted and referred to the Supreme Court, and held to be not inconsistent with the Constitution,

Risks

The foremost risk is that the Provincial Councils, infiltrated by LTTE remnants or sympathisers, would use the considerable legal powers vested in the Provinces as the essential building block for Eelam. A successful UDI, would be hugely helped by a territory, substantial legal powers, police powers, and a high degree of autonomy. 13A Plus would provide all of these on a platter. Safeguard clauses will be illusory, because they depend ultimately on the willingness of the centre to send in the military to bring a rebellious Province to heel. Would the centre have the stomach for another war, this time against a highly fortified legal entity, which would be powerfully backed by the foreign supporters pressing for a political solution?

The North-East Province can be expected to initially consolidate its powers and covertly build up an army under cover of police powers which would be controlled by the Chief Minister. When the Province is ready for a showdown, there would be many ways of provoking the centre. For instance, border disputes, with the Province pressing for the extension of its borders with the kind of trumped-up “history” which the LTTE excels in; and incursions into maritime zones, which are presently the preserve of the centre, or disputes about overlapping jurisdiction. When the disputes heat up, the Province would announce to the world that it has tried its best to work the political solution, but that due to the intransigence of the centre it has no choice but to declare a separate state of Eelam…

Benefits

Proponents of the political solution claim that it would solve the problems of the Tamils, provide them with the autonomy they need, and bring about durable peace. This implies that the Provinces would be content with 13A Plus, would not ask for more after some time, and be amenable to intervention by the centre in terms of 13A Plus. Overall, the claim that 13A Plus would bring durable peace requires that the Province would work harmoniously with the centre over the very long term, measured in many decades, and abandon the goal of Eelam.. ..

Probabilities

How likely are these two different scenarios – a) continuing agitation for secession culminating in UDI; and b) total acceptance of 13A Plus and durable peace? Past internal and external actions, and first principles, serve as a guide.

UDI Scenatio

Taking the UDI scenario, the worrying factor is that every measure made by the GOSL in the past to accommodate Tamil demands has been followed by more demands. For instance, from District Councils to Provincial Councils; to

Thirteenth

 Provincial Councils with powers to merge, to 13A, and now 13A Plus, and, ominously, 13A Plus for a start. One must also not forget a proposal for confederation put forward by the LTTE as long ago as 1995, in the midst of discussion about the Professor’s package. And of course Prabakaran’s uncompromising goal of a separate stake of Tamil Eelam. A connected factor is the pressure by the LTTE Diaspora and its foreign backers for more and more, and the malice shown against Sri Lanka, especially by western powers who seem hell bent on destabilising us. In an environment in which the pressure for Eelam continues, it is highly probable that 13A Plus will whet the appetite of the LTTE/Tamils for more, and that 13A Plus would be seized upon as a heaven-sent opportunity for achieving Eelam.

Durable Peace Scenario

The durable peace scenario has a major flaw. It is claimed to offer a political solution to Tamil problems. But all concerned have avoided defining what those problems are, which is surely the indispensable first step in solving any problem. As it is, one response could be, after a decent interval, “Good, but this does not solve our other problems X, Y, and Z..”‘ And the factor outlined above in “UDI Scenario” would also work to undermine the durable peace scenario.

Indian Factor

The strong Indian hand in the Accord, which spawned 13A, was described above. While Indo-Ceylon relations are cordial, we cannot forget the early Indian help to the LTTE, its rescue of the LTTE in 1987, the Accord forced on us, and its current pressure for 13A Plus. The Indian factor, with its internal political pressures, remains unpredictable.

Guarantees and Irrevocability

Standing back from details and looking at the big picture, there are two overriding factors we cannot ignore. First, can anyone on this planet guarantee that the durable peace scenario will succeed? If not, 13A Plus becomes a gamble, with the stake being Sri Lanka. Second, if 13A Plus goes wrong, we cannot undo it, because in practice we would not be able to repeal the law. And this time a military solution would not be feasible because we would be dealing with a legal entity, heavily armed and with overt powerful trigger- happy foreign backing.

Alternative

Does this mean that, without 13A Plus, nothing would be done for the Tamils? Not at all. Our consistent failure has been that we have painted ourselves into the political solution/devolution box. As management guru Peter Drucker once wrote when discussing problem-solving, “Without an alternative, you’re dead.”

Any alternative should not weaken the centre, facilitate secession, or prejudice our independence, sovereignty, territorial integrity, and unitary status.

The alternative should have at least three components. First, to remedy immediately the irritants to the Tamils such as making statements to the Police, having them recorded in Sinhala, and having to sign the Sinhala translations even though they may not understand them. All such needless unfairness must be rapidly corrected. Second, to define, together with Tamil entities and individuals, the major problems that should be solved, and devise alternative solutions. Third, build on the normal cordial relations between Sinhalese and Tamils. The overall aim would be to make all Tamils happy to be citizens of an undivided, unitary Sri Lanka. An eminent group to work on such a parallel track would be a promising start.

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