Thirteenth amendment to Sri Lankan Constitution — No lessons learnt in 75 years

The political implication of not implementing a proper federalist policy is the Tamils in Sri Lanka losing their voice and rights, thereby being subjected to further marginalisation. Every self-respecting Tamil in India and across the world should ask for nothing less than a federal Sri Lanka.

—

ADDRESSING the Sri Lankan nation on its 75th Independence Day, its President Ranil Wickremesinghe on February 4 said he was determined to see maximum devolution of power to the provinces, but would not stand for the division of the country. He said that a cabinet sub-committee had been appointed to look into the unique issues faced by the people living in the north and the east of the country.

"All political parties are informed of its decisions and their implementation dates. Thereby those tasks are carried forward. We have given priority to activities such as release of land and prisoners. Furthermore, measures are being taken for the maximum division of power in a unitary state. However, we will never consent to the division of this nation," he said.

The dissimulation fools no one, least of all Tamils in Sri Lanka. The writing is on the wall: The implementation of the 13th amendment to the Sri Lankan Constitution is no longer the issue; it is dead in the water.

Also read: Breakdown of Constitutional governance in Sri Lanka – What is the way ahead?

India's Janus-faced position

The 13th amendment was passed in 1987 as a result of the India–Sri Lanka Peace Accord, and led to the creation of provincial councils in the island country.

Successive Indian governments have stressed the importance of the implementation of the 13th amendment. They have underlined to successive Sri Lankan governments that the process of creating a 'United Sri Lanka' necessitated the devolution of powers to the Tamil regions for long-term reconciliation of both ethnic communities. Indian officials visiting Sri Lanka on various occasions have paid lip service to the issue. In 2021, during his visit to Colombo, Union External Affairs Minister S. Jaishankar stated, "It is in Sri Lanka's own interest that the expectations of the Tamil people for equality, justice, peace and dignity within a united Sri Lanka are fulfilled. That applies equally to the government on meaningful devolution, including the 13th Amendment to the Constitution."

India had urged Sri Lanka to implement the 13th amendment at the United Nations Human Rights Council (UNHRC) session at Geneva in 2021 and last year, India's permanent representative to the United Nations (UN) urged Sri Lanka to take the necessary steps to address the legitimate aspirations of the Tamil community, including continuing the reconciliation process and enacting the 13th amendment to the Sri Lankan Constitution, to ensure that all citizens' fundamental freedoms and human rights are fully protected, at the interactive dialogue on the Office of the United Nations High Commissioner for Human Rights (OHCHR) report on promoting reconciliation, accountability and human rights in Sri Lanka.

All Indian governments since Indian Independence have whittled down the powers of Indian states (the report of the Tamil Nadu government's Centre-state relations Inquiry Committee from 1971 and the Justice R.S. Sarkaria-led Commission's 1988 report on the Centre-state relationship notwithstanding). Even then, the 13th amendment doesn't even vest the powers of a District Development Council in an Indian state. If the Indian government had been serious about its concern for the Tamil people of Sri Lanka, it would have used the generous bailout it offered the Sri Lankan government to prod Sri Lanka into action also with regard to the implementation of language rights. It may be useful to add that Lankan public servants are unaware of the official languages policies of the government, and services are often not provided in Tamil.

The Prevention of Terrorism Act is still being applied on recent peaceful protesters in Sri Lanka, something we are familiar with.

Also read: Police Violence in Jamia and Aligarh Muslim University Violates International Conventions and Indian Court Judgments on Rights of Protestors: Citizens Against Hate

Instead, we are told that the Aryan knights of Hindutva had to go to the rescue of the Aryan Govigama damsel in distress, lest the Chinese Fu Manchu came to the rescue on his dragon charger! In truth, the Chinese reluctance to sign on the International Monetary Fund guarantees for Sri Lanka was self-evident.

Tamil Nadu government's stand

In 2021, ahead of the 46th session of the UNHRC, Dravida Munnetra Kazhagam (DMK) president and Chief Minister of Tamil Nadu, M.K. Stalin wrote to Prime Minister Narendra Modi urging the Union government to ensure that Sri Lanka implements the 13th amendment.

In his letter, he underlined how Sri Lanka had failed to honour the commitments made to UNHRC under Resolution 40/1 and has also not taken any measures of a globally accepted standard for accountability in the issue of war crimes and human rights violations it unleashed upon the Tamil community. He highlighted that the Tamil parties in Sri Lanka are unanimously appealing to UN member states, including India, to refer Sri Lanka to the International Criminal Court to be tried for its war crimes and human rights violations, and for this reason the Indian government should make sure that the Sri Lankan government honours its commitments.

Stalin has been generous in offering aid from the government and the peoples of Tamil Nadu to Sri Lanka, irrespective of ethnicity. As infusion of fresh water is needed in the Cooum river, Sinhalese obduracy needs an injection of federalism.

Recurring pattern

Like the proverbial bad penny turning up again, Wickremesinghe's pious statement is old hat. In 2012, a Parliamentary Select Committee (PSC) was set up primarily to address the problems of the Tamil community. However, none of the opposition parties, including the Tamil National Alliance (TNA) were invited. The TNA boycotted the PSC, saying that the sole purpose of the Sri Lankan government setting up this committee was to use the exercise as a cover-up to get the UNHRC off their backs and buy more time.

This is a recurring pattern that the Sri Lankan government is guilty of: it is notorious for setting up commissions and not implementing anything that the Tamil community has been asking for. For example, in the 1990s, a PSC was set up under the leadership of Mangala Moonesinghe, a former member of the Sri Lankan Parliament, to talk about the devolution of powers to the Tamils. The committee held meetings on numerous occasions; yet its reports were not implemented.

An All Party Representative Committee was set up under the then president Mahinda Rajapakse regarding the issue of the devolution of power to the Tamils, but this committee's reports were not implemented either.

In 2010, the Sri Lankan government set up the Lessons Learnt and Reconciliation Commission. However, the reports of this commission were not implemented as well.

Regarding the 2012 PSC, the then spokesperson of TNA, Suresh Premachandran expressed his disappointment by saying that "the TNA is unmoved because of the Sri Lankan Government's history of broken promises".

Also read: A Human Rights Concern: Shrinking Minority Rights in Sri Lanka

United Nations

Last week, Sri Lanka concluded its fourth Universal Periodic Review by the UNHRC; the report to be issued this week will have the usual platitudes.

As in the past, it will state that the OHCHR stressed that the drafting of the new constitution and devolution of political authority would serve as a key component in reconciliation between the Sinhalese and the Tamil communities in Sri Lanka. Earlier, the UNHRC stated that "devolution of political authority is integral to reconciliation and the full enjoyment of human rights by all members of its population". Moving forward, drafting a new constitution and devolution of powers has been mentioned as one of the recommendations to improve the human rights situation in Sri Lanka by the OHCHR. The UNHRC also urged Sri Lanka to fulfil its commitments that include devolution of political authority, protection of minorities' rights, and resolution of long-standing issues such as security legislation, militarisation, security sector reforms and land return, all of which would help to create an enabling environment for transitional justice and reconciliation.

Also read: Analysing the effect of UPR report recommendation in the context of India: Third UPR cycle

International law and autonomy for minorities

The UN's general human rights treaties establish essential guidelines for the protection of minorities' rights. It is worth remembering that all UN human rights conventions offer the same rights to members of minority groups.

Eight human rights treaties have set up committees to monitor how their work is being carried out. These are: the Human Rights Committee, a body of independent experts that monitors implementation of the International Covenant on Civil and Political Rights (ICCPR); the Committee on Economic, Social and Cultural Rights, a body of 18 independent experts that monitors implementation of the International Covenant on Economic, Social and Cultural Rights; the Committee on the Elimination of Racial Discrimination, a body of independent experts that monitors implementation of the International Convention on the Elimination of All Forms of Racial Discrimination; the Committee on the Rights of the Child, a body of 18 independent experts that monitors implementation of the Convention on the Rights of the Child (CRC); the Committee against Torture, a body of ten independent experts that monitors implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Committee on the Elimination of Discrimination against Women, a body of independent experts that monitors implementation of the Convention on the Elimination of All Forms of Discrimination against Women; the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, a body of independent experts that monitors implementation of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; and the Committee on the Rights of Persons with Disabilities, a body of independent experts which monitors implementation of the Convention on the Rights of Persons with Disabilities. Minority-specific clauses can be found in two of these UN treaties: the ICCPR and the CRC.

The UN Declaration on Minorities is based on and inspired by Article 27 of the ICCPR, which is the most widely regarded legally-binding provision relating to minorities. Article 27 reads:

"In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language."

Article 30 of the CRC establishes a similar standard for children from minority groups. It says:

"In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language."

Because the ICCPR and the CRC have been widely ratified, every State in the world has a legally-binding obligation to protect minority rights as a result of its voluntary commitments under international law. However, people belonging to minority groups having the freedom to express their culture, language and religion seems to be the maximum extent of the liberal democratic idea of 'rights for minorities' that the international community has agreed upon.

Devolution of powers and conflict resolution

In order to achieve a successful peace deal that is accepted by minorities, the state's institutional framework must be changed. Over the last 50 years, the most successfully resolved conflicts have entailed power-sharing frameworks in which some sort of autonomy has been provided. In post-conflict settings, there is widespread agreement on the importance of supporting local government capacity and associated types of decentralisation.

A decentralised presence allows a government to strengthen its visibility and legitimacy at the local level, deploy civil workers, prioritise infrastructure needs for optimal service delivery, communicate more effectively across the country, and preserve order and security. In conflict-prone situations, locally developed and implemented actions allow for interaction, engagement, and integration among different ethnic, cultural or religious groups. Local governance, in theory, can act as a check on local claims to political and socioeconomic power.

Many post-conflict countries have sizable rural populations for whom national authority structures are often irrelevant and distant. A devolved power centre, on the other hand, can help reduce resentment that emerges from traditional centre-periphery dynamics by giving local residents a tangible way to engage in problems that matter to them. Decentralisation, it is further believed, helps local residents to interact with the government, while devolution of basic services gives a means to resolve grievances — even conflict's core causes.

Also read: Crisis in Sri Lanka: Panellists from five South Asian countries see SAARC as a solution

What the road ahead should be

Federalism is a constitutional agreement that allows individuals from many communities living in separate territories to have the same powers as other communities and live together harmoniously in one country. American academic researcher John M. Cohen and American public financial management specialist Stephen B. Peterson, in their book Administrative Decentralization: Strategies for Developing Countries (1999), written and published on behalf of the UN, have come up with six normative requisites when it comes to the devolution of powers:

1) Granting of specific unit corporate status

2) Establishing clear jurisdiction and functional boundaries

3) Delegation of specified powers to plan, and make decisions

4) Establishing basic rules for interaction among units in the governmental system

5) Authorisation to raise own-source revenues

6) Authorisation for devolved units to establish and manage their own budgetary, accounting and evaluation systems

However, from the analysis of the 13th amendment, one can understand that there is no clear-cut division between the provinces and the central government, which leads to weak provincial autonomy. The provincial councils do not have absolute authority over any matter. In fact, when needed, the parliament, the president and the governor can always override their decisions or take issues into their own hands.

The decades-long fight to achieve the implementation of the 13th amendment is uttered like an ineffective Vedic mantra mouthed mechanically.

The political implication of not implementing a proper federalist policy is the Tamils in Sri Lanka losing their voice and rights, thereby being subjected to further marginalisation. Stories of Tamils getting arrested and detained under false charges, sexual abuse, torture, militarisation of the Tamil homeland, state-sponsored colonisation projects are just a few of the atrocities that are experienced by the Tamils in Sri Lanka post-war.

The DMK and every self-respecting Tamil in India and across the world should ask for nothing less than a federal Sri Lanka. Northern and eastern Sri Lanka should have the powers of Canadian provinces or the German Lander. New Delhi, if it is sincere, should, for starters, facilitate talks with the Sri Lankan Tamil leadership in full consultation with Chennai.