Activating the Dormant 13th Amendment of 1987

by Thambu Kanagasabai –  Former Lecturer in Law, University of Colombo, Sri Lanka, January 26, 2022

The 1987 13th Amendment, a conceived and delivered baby of India under the Indo-Sri Lanka Accord of 1987 for adoption by Sri Lanka, has been lying in the constitution of Sri Lanka partly implemented and mostly ignored by the Sri Lankan Governments since then. This 13th Amendment is now activated and given new life and blood by the Tamil leaders due to the deteriorating and worsening political situation of Tamils in the hands of the current Government of  Rajapaksa’s  family. It has to be noted that the election manifestos of Tamil parties contain the following important election pledges since independence from the British in 1948:

• Federal form of Government from  1948 to 1976
• A separate state for Tamils or TAMIL EELAM from 1976 to 2009
• North -East merger.
• The right of self-determination
• Recognition of North and East as Tamils’ historically inhabited homeland.

Now the Tamil leaders for the time being are unanimously pledging and vowing to implement the earlier discredited 13th Amendment including their determination to work for and achieve a federal form of Government using the 13th Amendment as a starting point. In this respect some of the salient provisions of the 13th Amendment can be detailed as below:

• The 13th Amendment contains three lists of powers allocated to the Provincial Council and Central Government
• They are the reserve List of Central Government
• Concurrent list of both Provincial Council and Central Government
• Exclusive list of Provincial Council

The Provincial Council list contains the following powers meant for its exercise,execution and functions.

• Law and order
• Land and land settlement
• Education

The above powers though appear to grant full authority and control for the Provincial Council, yet they are almost deceptive and toothless. The Governor being appointed by the Central Government  and acting as its agent, the Central Government in fact holds the whip hand and switches on and off the powers of the Provincial Councils.

The Governor’s assent to any legislation passed by the Provincial Council and the Central Government’s rights to dissolve and or withhold consent to Bills of Provincial Councils which appear to be controversial or appear to affect and harm national policy and the interest of the Central Government like security and creating disharmony among the community’s security erode the unfettered and independent functioning of the Provincial Government. For instance, the Provincial Council during its functioning from 1988 to 2018 has simply failed to set up a Police Force allowed for it due to the hue and cry from the extremist Sinhala parties, Buddhist Monks and racist opposition leaders.

The Provincial Council which came into existence in 1988 has totally failed to exercise its granted powers to implement all the provisions and powers of the 13th Amendment due to lack of political will and determination coupled with the fears of the sword of Damocles hanging over their heads in the form of a Government-appointed Governor and a hostile Sinhala/Buddhist majoritarian Government.

Whatever shortcomings of the Provincial Councils system, the Provincial Councils in the North and East are vested with some executive and legislative, but chopped powers over the Lands and Properties in the North and East. As such the powers under the Provincial Councils have to be fully executed and the condition that the powers under the Concurrent List must be executed with the consent of the Governor need to be reviewed and the Tamil parties and leaders must agitate to make the necessary Amendments to allocate those powers under the Provincial List.

However, it has to be stated that Sri Lanka on its own will not take any moves to implement the 13th Amendment even if willing due to the possible protests and opposition from Sinhala Buddhists, Buddhist Clergy and extremist political leaders and parties. Therefore, ther duty, responsibility and burden lie and fall on India, the mother of the 13th Amendment to ensure and promote its full implementation. This is a responsibility which India cannot shirk or abandon. Indo-Sri Lanka Accord of 1987 [Signed in Colombo on 29th July, between Indian Prime Minister and Sri Lankan President J. R. Jayewardene] is an International Agreement deposited with International Treaties at the Depositary of International Treaties. The last surviving hope of the Tamils in the North and East is this Accord which at least solves some of the accumulated problems of the Tamils, though this Accord cannot be resorted to stop and prevent the Sinhalisisation, Buddhisisation and Militarization which are proceeding at a faster pace aiming to liquidate the  Tamils as a distinct race, their language, culture and traditions.

The Indo-Lanka Accord of 1987 could be the last straw to catch. and cling on by the Tamils to ensure their survival and prevent their extinction and drowning in the sea of majoritarianism, communalism and racism which are the armory of the Sinhala. Buddhist political parties to secure and entrench a Sinhala. Buddhist State in Sri Lanka.

A Provincial Council possessing its listed powers and the Concurrent listed powers with restrictions and vetoing powers of Governor including the powers of dissolving the Provincial Council by the Central Government on the grounds of security and sovereignty could be considered as fulfilling some meagre aspirations and needs of North and East Tamil Inhabitants. Therefore, India owes a greater responsibility to ensure its enacted and imposed Indo-Sri Lanka Accord of 1987 is fully implemented by Sri Lanka to vindicate its strong credibility and not allow it to lapse or be curtailed and devalued by the Sri Lankan Government which is in no mood to honor this Accord even if risking the wrath of India.

It is therefore, more than justifiable, right and proper for the Tamil National Alliance and other Tamil parties to fall back on India to ensure its full implementation by Sri Lanka which is incorporated in its Constitution since 1987. Above all India carries  the moral duty and responsibility to uphold accountability and human rights as a member of UNHRC and United Nations as well as a Superpower and neighbour of Sri Lanka. Any delay and neglect of this duty will only  feed and foster militancy on the part of the aggrieved victims and fester the underlying unhealed wounds of injustice and denial of accountability to spiral out of control.

It is worth to quote M.C.M Iqbals’ comment on 19th January 2009 “In short the executive and legislative powers of the Provincial Councils continue to be with the President and executed by the Governor he appoints while the Governor exercises such powers with the assistance and advice of the Chief Minister, the members of the Board of Ministers and through the members of the Public Service. The Chief Minister and members of the Board of Ministers cannot defy the Governor’s authority.”