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Why 13th Constitutional Amendment rammed through by India irritates Sri Lankans

Rajiv Gandhi

by Lucian Rajakarunanayake

I have known Nirupama Subramaniam to be an observant journalist during here six years or more posting in Sri Lanka, first as a visiting journalist for ‘India Today’, later as correspondent for the ‘Indian Express’ and finally for the ‘Hindu’, to which she wrote the recent Lead Opinion (April 7) – ‘Lessons to learn from Geneva’, which was an analysis of the recent UNHRC vote against Sri Lanka.

Manmohan Singh

However, her recall of the 2009 resolution at the UNHRC when Sri Lanka carried the day lacks such good observation. She said that in 2009 “Sri Lanka managed to snatch victory from the jaws of diplomatic defeat”.

This raises questions of judgment as one fails to see defeat lurking anywhere near, when the resolution that “praised the government for its humane handling of civilians and asserted faith in its abilities to bring about reconciliation” was passed with a majority of 11 votes – 29 voting for, 12 against and six abstentions.

She also recalls the line in the preamble to the 2009 resolution which said: “Welcoming also the recent reassurance given by the President of Sri Lanka that he does not regard a military solution as a final solution, as well as his commitment to a political solution with implementation of the thirteenth amendment to bring about lasting peace and reconciliation in Sri Lanka”. She now argues that this reference to the 13th amendment may well have been the price Sri Lanka paid for New Delhi’s decision to support the US Resolution critical of Sri Lanka in last month’s UNHRC Session, which marked India’s first departure from the position of not voting for country specific resolutions.

Local politicians

She argues that, “from the Indian point of view, it could have helped to refocus Sri Lanka’s mind on the 13th amendment”…and adds that: “India’s constant reminder of this statute irritates Sri Lanka no end. So why does India harp on it? For no other reason than that the 13th amendment remains the only constitutional step ever taken by Sri Lanka towards moving away from a unitary, highly centralized state, to power sharing with the provinces. New Delhi believes if implemented sincerely, it could lead to a solid political peace with the Tamil minority.

The amendment came about as a result of the 1987 India-Sri Lanka Accord, and it paved the way for devolution of power. The irony is that the limited devolution envisaged by the amendment flourishes in all other provinces of Sri Lanka, where it has empowered local politicians, but not in the Tamil North or the East at which it was primarily aimed.” This substantial quotation of her point of view is necessary to have a better understanding of the actualities of the 13th amendment.

Terrorist outfit

It is necessary to appreciate that if India’s constant reminder of this statute irritates Sri Lanka no end, there is very good cause for such feelings in the Sri Lankan polity. The amendment did come about as part of the 1987 Indo-Sri Lanka Accord, but regrettably Nirupama Subramaniam was not reporting from Sri Lanka at the time this was adopted, nay shoved down the throat of Sri Lanka.

It followed an airborne incursion to Northern Sri Lanka by India, and a provocative dropping of ‘food aid’ at a time when the Sri Lankan Armed Forces were very likely on the verge of inflicting a major defeat or possibly the final rout of the LTTE, much before May 2009.

One must not forget the arrival of the Indian Peace Keeping Force (IPKF) in recognition by Prime Minister Rajiv Gandhi of the grave strategic error by India in training and arming the Tamil militant groups of Sri Lanka’s North; most of whom were decimated by the LTTE, which became the supreme terrorist outfit.

The IPKF did help curb the LTTE to a considerable extent, but abuse of human rights in the process is not questioned, because they did not finish the terror. This contributed to the assassination of Rajiv Gandhi, although it is not thus justified.

The IPKF also added a new threat to Sri Lanka by actively attempting to set up a Tamil National Army (TNA), presumably to fight the LTTE, but would in fact have further boosted separatism in the North and East.

I am a strong supporter of genuine and meaningful, devolution of power in Sri Lanka. But the conditions under which the 13th amendment came about are hardly democratic, to be considered a real solution to the problem of majority-minority relations in this country. One must first realize that this is not an amendment to a universally accepted constitution.

The present constitution of Sri Lanka was itself thrust on the people, by the late President JR Jayewardene, using his 5/6th majority in Parliament at the time; without any deliberations by a constituent assembly or any indications given to the people of the nature of the Executive Presidency that was installed through it, and the resultant weakening of the powers of Parliament. 13 A did not come to a constitution that was drawn up with proper public consultation and serious debate as Dr. Ambedkar did in India.

The nature of this hurried constitution is seen by 13A coming after 12 amendments already passed in less than 10 years since the constitution was hastily enacted, as an amendment to the previous constitution, in a hurried debate.

UNHRC’s 19th session-File photo-pic: UN

Indian intervention

It was on top of this that India, through the arm-twisting of Indo-Sri Lanka Accord, thrust the 13th amendment. Even the members of the then ruling United National Party who voted for it were bused to Parliament under heavy escort, to ensure the necessary 2/3 majority; and such a change to the country’s system of governance was not open to a referendum by the people.

As she refers to coalition politics having some played some part in India’s decision to eventually vote with the US in the recent resolution, stated more clearly as ‘coalition compulsions’ by Prime Minister Manmohan Singh, it is also necessary to understand such compulsions in Sri Lanka, too. The government today is a coalition comprised largely of political parties that were totally opposed to both the Indo-Sri Lanka Accord and the 13th amendment. The opposition to it at the time was led by the Sri Lanka Freedom Party, which is the largest constituent of the present coalition.

The People’s Liberation Front (JVP) some members of which are now in the coalition, were also strong opponents of it. The leftwing parties, better referred to as name-board parties, and the single Tamil party in the present coalition that initially supported 13 A, are vastly outnumbered in the current coalition. Even the Opposition UNP, which now claims to support the 13th amendment, was not fully supportive of it, as seen by the Opposition of the then Prime Minister Ranasinghe Premadasa to the Indian intervention at that time, and the necessity to herd the MPs of that party for the vote on it in Parliament. Many of the UNP members, who are now in the government, are also not known to have been very enthusiastic supporters of 13A.

In addition to this reality of coalition compulsions, there is also Nirupama’s questionable position that, “The irony is that the limited devolution envisaged by the amendment flourishes in all other provinces of Sri Lanka, where it has empowered local politicians, but not in the Tamil North or the East at which it was primarily aimed.” Her experience in journalism requires a better study of facts. Yes, it has ’empowered politicians’ in other parts of the country where ‘the limited devolution’ of 13A is partly in place. It is in place in the East too, from 2007.

Yet, with the ‘Concurrent List’ of subjects that is part of 13A, by which Line Minister at the Centre can easily take over devolved subjects, as we have seen happen since its inception, there is a major question as to the content and extent of devolution it offers. It is also important to know that in the other provinces where ‘the amendment flourishes’ as Nirupama claims, they do so without police and land powers being devolved, which is among the key demands of those such as the GTNA who demand full implementing of 13A.

As for the absence of it whether limited and flourishing or not in the North, it is necessary to note that no proper electoral list can yet be compiled for the North, until the National Census of Population now under way is completed, taking note of the major changes of population in the North, and the fact that the LTTE did not allow the North to be included in the two censuses carried out in last two decades.

US resolution

There are also concerns among many about the devolution of Police Powers, as envisaged by 13A, in the context of the bloody conflict from which Sri Lanka has emerged, not through devolution, but through military action, which had the support of India, especially in its final phases; and which is being brought into question today, by a section of countries mainly of the Western bloc and those influenced by them, that I hesitate to describe as the ‘international community’.

I am not one who plays on the arithmetic of abstentions, to count those who abstained on the US resolution as being with or pro-Sri Lanka. No doubt they had their own compulsions, whether of conviction, external pressure, or internal politics not to vote for Sri Lanka.

But I do share her fear, that in the current context the Tamil leadership “now beholden more than ever to the extremist mindset of the Diaspora that played its part in pushing the 2012 resolution could end up making radical demands.”

They may not be an excuse for the Sri Lankan polity to turn down those demands, but would certainly make it very difficult for the polity to manouevre for an acceptable position in a very worrisome situation. It is necessary that I contest the use of ‘Diaspora’ to describe the pro-LTTE Tamils abroad, mainly in the West, and in India too.

They cannot be a Diaspora, as they show no interest to returning to their motherland, and Nirupama can bet her last Indian Rupee that even if their dream/nightmare of ‘Eelam’ is established, they would never give up the comforts of the West and other places of domicile to return to Sri Lanka or even help this country in reconciliation. This does not apply to many others Sri Lankan Tamils abroad who think differently of the current Sri Lanka situation.

Political leadership

I do not question the need for proper devolution of power in Sri Lanka; devolution that means much more than the ’empowerment of politicians’, but rather the empowerment of the people, in a less than half-baked practice of ‘devolution’ a la 13 A. It must also be devolution that is not thrust on the country and the people, either by a good neighbour or a desperate political leadership, as happened in 1987.

It is such situations that give rise to the call for ‘Home-grown’ solutions, which need not be bad only because they are home-grown. Such solutions, if fully and properly discussed with the people, will be the best way to resolve the Sri Lankan situation today, whether there is a sword hanging over the island at the next round in Geneva or not.

I believe we do have a good opportunity at better devolution, and other important aspects of reconciliation and strengthening of peace, through the recommendations of the Lessons Learnt and Reconciliation Commission, and the considerable work in the area of resettlement of the internally displaced after the necessary defeat of the LTTE. A major lesson from Geneva is to strengthen these efforts and not belittle them

Note: an abridged text of this response was sent to the ‘Hindu’ at its request on April 11, 2012, but has so far not been published on its online edition where the original Opinion by Nirupama Subramaniam appeared.

Related: India believes it has succeeded in sending out a powerful message to Sri Lanka ~ by By Nirupama Subramanian

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