By

Nirmala Chandrahasan

The general perception that the 13th Amendment to the Constitution with the provisions for setting up Provincial Councils is an Indian imposition is factually incorrect. These provisions were apparently based on drafts submitted by the government of Sri Lanka. Mr. R. Sampanthan MP, the leader of the TNA in a recent interview published in the Asian Tribune 27th June states, “The 13th Amendment came out of extensive talks between the government and the TULF (the Predecessor of the TNA) in July August 1986. Secretary to the discussion was Mr. Felix Dias Abeysinghe former retired Commissioner of Elections.

The persons representing the GoSL were President Jayewardene, Ronnie de Mel, Lalith Athulathmudali, Gamini Dissanayake, A. C. S. Hameed, K. W. Devanayagam and Ranil Wickremesinghe. Representing the Tamil side were A. Amirthalingam, Sivasithamparam, Dr Neelan Tiruchelvam, V. Anandasangaree, Joseph Pararajasingham and R Sampanthan.” He states that they discussed nearly nine drafts. The Indo Sri Lanka Treaty was signed in July 1987. He goes on to say that what subsequently came out as the 13th Amendment was a watered down version of what had been agreed upon by the government and the TULF. The government of India was not represented at the talks. He states the minutes of all the talks and the relevant papers must be available in the presidential Office.

I myself came across a copy of a letter, in a TULF publication, written by Mr Amirthalingam to Shri Rajiv Gandhi titled “Our disappointment with proposals contained in the two Bills”, dated 28th October 1987. He says, “Now the legislation is sought to be foisted on us without any Indian expert playing a part in the drafting.” He concludes by stating as follows, “Contrary to the belief that the chapter pertaining to the Provincial Councils would confer on the Provinces a measure of credible autonomy without Parliament and the Central Executive to extend its tentacles into the provincial sphere circumscribing and emasculating the exercise of even the powers conferred on the Province”. The present working of the system seems to bear out Mr Amirthalingam‘s, contention. It would seem that President Jayewardene had out manoeuverd the other side.

Be that as it may, it could be said that the 13th Amendment was a home grown one. It had been drafted by the Government of Sri Lanka after discussions with the TULF, (although the TULF was disappointed by the final outcome). The Government of India had used its good offices in bringing the parties together, and possibly there had been some input in the content of the legislation but not in the final Bills as presented to Parliament. It must be recalled that the UNP Government at that time was a representative government. It had a two thirds majority in Parliament. President Jayewardene had won the first presidential election defeating the SLFP candidate Mr. Hector Kobbekaduwa with large margins in all the electoral districts of the country except the Jaffna district where Mr. Kobbekaduwa led by a big margin even over the Tamil Congress candidate Mr Kumar Ponnambalam. The UNP Government largely represented the Sinhalese majority community and had some support from the minorities. Two ministers in the government’s negotiating team Mr Devanayagam and Mr Hamid represented the Tamil and Muslim communities respectively. The TULF had the support of the majority of Tamils in the north and east and had participated in the negotiating process. The two Bills setting up the Provincial Council system i. e. the 13th Amendment and the Provincial Councils Bill were passed in Parliament. Hence the legal validity of the Act is not in question, as is presently being alleged.

Turning now to the ‘Indo Sri Lanka Agreement to Establish Peace and Normalcy in Sri Lanka’, the purpose of this Treaty was set out in the title itself. While the agreement refers to Provincial Councils and the forthcoming elections to such Councils, the creation of one administrative unit in the North East, the holding of a referendum on this issue in the eastern province, the appointment of observers to the forthcoming elections to the Councils and the creating of conducive conditions for the holding of such elections, by the disbanding of para military groups and home guards, the actual Constitution and powers of the provincial Councils were left to the negotiating parties namely GoSL and the Tamil Party to determine. The treaty itself served as a facilitator and guarantor for the process of devolution, and the setting up of Provincial Councils. It guaranteed to the minorities and to the people of the country the establishment of peace and normalcy through a process of devolution and the preservation of the country’s character as a multi ethnic, multi religious and multi lingual state. Article 1.5 of the treaty sets out this objective as follows: “Conscious of the necessity of strengthening the forces contributing to the unity sovereignty and territorial integrity of Sri Lanka, and preserving its character as a multi ethnic, multi lingual and multi religious plural society, in which all citizens can live in equality, safety and harmony and prosper and fulfill their aspirations”.

A treaty between two countries cannot be abrogated unilaterally. The Vienna Convention on the Law of Treaties sets this down. The international law principle pacta sunt servanda, treaties are binding has to be observed. A treaty can be abrogated apart from certain exceptional circumstances only after consultation with and consent of the other party to the Treaty. Under Article 27 of the Convention a party may not invoke the provisions of its internal law as justification for its failure to perform a Treaty.

Since 1957 starting with the Bandaranaike Chelvanayakam Pact successive Governments both UNP and SLFP have sought to work out some form of devolution that would give some measure of autonomy to the minority communities. However the efforts of each government was obstructed by the party in Opposition which had itself earlier made similar offers, for narrow political gains and the ethno nationalist groups on either side. The LTTE also denounced the 13th Amendment. The Provincial Council system alone survived in the face of the same type of opposition it was guaranteed by the Indo Sri Lanka Treaty. Since1994, even more progressive attempts at devolution have been made by the SLFP government and various drafts submitted culminating in the Draft Constitution Bill (2000) which was presented in Parliament but scuttled once again by the main Opposition party. This, too, was opposed not only by Sinhalese nationalist groups but also by the LTTE. During the period of the, present Government President Rajapaksa appointed the APRC (All part Representative Committee) to come up with proposals towards this objective, together with a Panel of Experts. The reports of the Panel and the APRC have not been implemented thus far due to opposition from such groups. This way the national question is left unresolved. The 13th Amendment a very modest form of devolution has been in existence in the majority Sinhalese provinces of the country since 1988 for a period of nearly 25 years. The Northern Province has not had such a council because of the insurgency there. The announcement of a Northern Province, Provincial Council election has set off a campaign to do away with the whole system or to amend it so as to deprive it of what little powers it has. The bone of contention is the provision in the schedule of police powers and the possibility of a Provincial Police force being set up. Thus far these powers have not been given and are in abeyance. For such a force to be constituted the government has to set up a Provincial Police Commission and the IGP who heads the national police Department has to appoint a DIG to head the provincial police. The senior officers have to be seconded from the national police service. The setting up of the provincial police requires the government’s concurrence and cooperation. Hence there is no need to fear that a Provincial Council could act on its own in this matter.

The need for a provincial police force arose from the security concerns of the people in the northern and eastern provinces who had been under the security forces as well as the various para military organizations. A subcommittee of the Experts Panel, which looked into “the concerns of the minorities” recommended in its report that in areas which are constituted predominantly of a particular community the police stationed therein should be predominantly of that community while still retaining a multi ethnic character. Hence in the northern and eastern provinces there would be a larger recruitment of Tamil speaking policemen from these provinces to staff the Police stations. This would help overcome some of the security concerns of the people in those areas. What is equally important is the setting up of women’s police stations, staffed by women police of all ethnic groups particularly in those areas in the northern and eastern provinces where due to the aftermath of the war there are a large number of women headed households some 30-40% in some districts where the women have security concerns. This could be extended to areas in the south as well.