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‘13th amendment is fundamentally flawed’ – C V Wigneswaran

Justice C.V. WIgneswaran, Jaffna MP and former Northern Province Chief Minister, delivered a speech to the New Indian Forum last Sunday on India’s role in the 13th Amendment of the Sri Lankan Constitution, drawing on his own experience to call the amendment “fundamentally flawed”.

Briefly explaining the history of the Indo-Lanka Peace Accord of 1987, Wigneswaran then held forth on how ineffective the 13th amendment has practically been in ensuring devolution of power to the Tamil provinces and bringing about regional autonomy.

Governors - answerable to the President

“The 1978 constitution mandated an executive presidency. Therefore, all powers devolved to the Tamil provinces through the 13th amendment are enjoyed by the governor who is appointed by the President,” Wigneswaran said. “It is the governor who has powers of administration....The Chief Minister and other ministers can “help or give advice to” the governor but he is not required to act by it. Moreover, the governor is not answerable to the democratically elected Chief Minister. Instead, he reports directly to the President. The central government and the parliament can intrude into the internal affairs of a province without the permission of the council.”

Wigneswaran, a former Supreme Court Justice, was the Chief Minister of the Northern Province from 2013 to 2018. In his speech, he continued to analyse in detail the specific drawbacks in the 13th amendment. Following a discussion on the governor’s overriding powers, Wigneswaran touched upon other specific points in the 13th amendment such as administration, finance and judiciary, which demonstrated that the amendment does little to establish regional autonomy in the North and East.

Administration

“In terms of administration, three lists distinguish the powers between the centre and the provinces, namely; provincial council list, reserved list and concurrent list.”

“The provinces have jurisdiction over items classified under the Provincial List, the centre has jurisdiction over the Reserved List, and the centre and state have to consult one another before making a decision on an item in the Concurrent List.” “The centre has the authority to rule on matters in the provincial list,” Wigneswaran added. “A province has the choice to accept a law passed in the parliament with a simple majority. However, if the law passes with a 2/3rd majority, it is incumbent upon a province to accept it.”

“‘It is important to note here,” he continued, “that on matters against the favour of Tamils and Muslims, Sinhalese parties have a history of standing together. Therefore, it is not hard for them to attain a 2/3rd majority when needed. Even if it becomes impossible to achieve it, the parliament can push the law through on a reluctant province with the ‘national policy’ tag on it which requires only a simple majority to pass. Therefore, the parliament has the authority to neuter or reject any action that is taken by the provincial councils.”

“The government has secured a 2/3rd majority in the parliament today. Even if the provincial councils get a fresh lease of life, they’ll be akin to dead snakes,” Wigneswaran said. “However, if they did not exist at all, Tamil provinces would come under Sinhalese domination. As in previous days, many Tamils will flee and the rest will become mixed with Sinhalese,” he warned.

Finance

“A government’s efficiency and authority can only be decided by its financial independence,” Wigneswaran said. “But it is in the hands of the central government that all financial powers are concentrated. The democratically elected provincial council has no authority over financial matters. But the governor, whom the people did not elect, has all the powers.”

Land rights

After examining in detail how the judiciary and security forces are tilted in favour of the centre, Wigneswaran then went on to elucidate on the land rights granted to Tamils by the 13th amendment and why they are inadequate and also ventured to comment on how the amendment creates the conditions for Sinhalese colonisation.

“Even though land rights are listed in the provincial list, the second appendix to the document reins in that right in a wily manner. “State Land shall continue to vest in the Republic and may be disposed of in accordance with Article 33(d) and written law governing the matter,” says the law. Therefore, all land-related issues come under the President’s jurisdiction.”

“The provincial council cannot distribute the land to its people. So, people from other provinces can be granted land without the permission of the said province. This is how the 13th amendment has paved the way for Sinhalese colonisation of Tamil lands. 33 years after the amendment came into force, we (Tamils) are still not able to enjoy so much as slapdash land rights.”

Term as Chief Minister

Justice Wigneswaran then briefly touched upon his own term as Chief Minister of the Northern Province and related his experiences as a CM whose ‘hands were tied.’

“The 13th amendment is fundamentally flawed due to the fact that it is put in place in a system of executive presidency. As someone who served as CM of the Northern Province, I can’t make any fake statement that contradicts reality and my conscience. The truth is I spent my years in office as a CM whose hands were tied,” he said.

“Some say that we could have done that or done this if we had cooperated with the centre. It means abasing and ingratiating oneself personally to secure concessions from the government. A right is only permanent when it is secured by asserting its legitimacy rather than by currying favour with the powers that be. Acquiring concessions through personal sycophancy is not tantamount to obtaining rights for the people. It only means acquiring backdoor sops.”

“It is a bitter truth that even after a bloody war, the provincial council hasn’t been, nor will it be, able to alleviate the sorrow and distress of our people. The 13th Amendment did not empower the councils with the administrative powers to prevent Sinhalese colonisation, land-grabs and Buddhisation of Tamil lands that took place during my term which collectively amount to cultural genocide. If it was possible to prevent a few measures, it was only because of the collective opposition of the people.”

India and the amendment

Implemented with so many flaws and defects, Wigneswaran then went on to discuss whether the 13th Amendment was a failure for India.

“That Prime Minister Rajiv Gandhi was misdirected by some of his advisers and President Jayawardene succeeded in turning him against the tigers were important reasons for this (flaws in the 13th amendment).”

“India failed to adequately differentiate between the movement for language rights in Tamil Nadu and the struggle against genocide by Tamil people in Sri Lanka and took an unnecessarily exceeding caution which provided little room for the 13th Amendment to be implemented in a meaningful way. India was scared that the self-determination movement in Sri Lanka would give a fillip to separatism in Tamil Nadu.”

Then Wigneswaran ventured into laying out the differences in society and the legal order between India and Sri Lanka.

“No meaningful parallel can be drawn between the federalism in India and the provincial devolution in Sri Lanka. Whilst Indian law experts argued that provinces should be granted at least as much autonomy as the Indian states were, the Sri Lankan government did not allow that to happen. There are a great many differences between the two countries. The executive presidential system in Sri Lanka is not only predicated in law but also deep-rooted in Sinhala-Buddhist ideology. It was chiselled by the Mahavamsa philosophy and guided by that socio-legalistic framework.”

“According to the Mahavamsa mindset, India has been seen as an enemy country throughout history. While on the other hand, on the basis of race, religion, language and culture, Sri Lankan Tamils have always loved India. However India has so far failed in appreciating this and making efforts to ensure the safety of Sri Lankan Tamils. The foreign policy changes made after the demise of ‘mother’ Indira Gandhi have largely to do with these slips. It is only now that a strong leadership has arisen with an ability to make decisions without constraints since Indira Gandhi. Therefore, a change in India’s policy towards Sri Lanka keeping in mind all these factors would determine how significant a role India might play in the federalism of Sri Lanka and securing its own southern borders. I have said many times that India’s security depends on the safety of the Tamil people who populate its southernmost areas.”

“Whatever friendly moves India may take, whatever loans and concessions it might grant, Sri Lankan governments would never be loyal to India. They would always see India as biased in favour of the Tamils. So no one can find fault in India devising policies to the advantage of Tamils. India can confidently seek to establish justice and bring about a lasting solution.”

“In my opinion, I believe India would’ve learned several truths about the 13th Amendment. That a permanent solution to the ethnic conflict lies only in a united Sri Lanka with a merged North-Eastern province is not something honourable Modi’s government doesn’t understand. Honourable Modi told the Sri Lankan MPs in his very first visit that cooperative federalism is the best solution in Sri Lanka. He had realised that the greater the administrative powers and security for Tamils in Sri Lanka, the more secure India’s southern borders would be. India should take strong measures towards achieving that end. For the last one year, I’ve been emphasising the importance of India’s input in Sri Lankan politics. I’m very pleased by the greater attention that India is currently devoting to Sri Lanka.”

“My argument that the 13th amendment is futile and powerless does not imply that India or the Sri Lankan Tamils should keep quiet as the government tries to do away with it. In truth, the centre knows that scrapping the amendment does not take away from the Tamils any administrative or regional autonomy. Still, why is it trying to get rid of it? It wants to forestall any power devolution to the Tamils in the future by using the 2/3rds majority it now commands in the parliament. Even though the 13th amendment does not contain anything of substance to the Tamils, it contains important politics. It is related to geopolitics. Abrogating the 13th amendment would bring into question the Indo-Lanka accord of 1987. One cannot deny the importance of the role India can play in ushering in a sustained solution to the conflict. Therefore, India should take swift actions and urge Sri Lanka to implement power devolution until the final aim of cooperative federalism is achieved.”

“There is no doubt that the Sri Lankan government would again resort to subterfuge in their engagement with India. I request the central and state governments of India to anticipate it and act in the most sensible way."

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