“It is often stated that it is the 13th Amendment that gives India the legal authority to intervene on behalf of the Eelam Tamils. It is not the 13th amendment, but the Indo- Lanka Accord rather which gives India the legal authority to intervene with respect to its provisions, including the recognition that the Northern and Eastern provinces must be merged and are the traditional homeland of the Tamils where they must have control over their own affairs,” Visuvanathan Rudrakumaran of Transnational Government of Tamil Eelam (TGTE) said in a statement.
Sri Lankan President Ranil Wickremesinghe’s pledge to Indian Minister of External Affairs S. Jaishankar on January 19, 2023, that he will implement the 13th Amendment to the Sri Lankan Constitution, which was legislated 36 years ago, reminds us of Wickremesinghe’s uncle, then- President J.R. Jayawardene signing of the 1987 India-Sri Lanka Accord and subsequent introduction of the 13th Amendment, the statement added.
When the Indo-Sri Lankan Accord was opposed by Sinhala hardliners, Jayawardene said to them, “You will oppose me for a few days, but then you will appreciate me forever”. Jayawardene used the 13th Amendment to drive a wedge between India and Eelam Tamils. It is a cruel irony that his nephew, President Ranil Wickremesinghe is using the same 13th Amendment to drive a wedge between India and Eelam Tamils.
Sri Lanka has never implemented the 13th Amendment and the 13th Amendment does not at all fulfill Sri Lanka’s pledges in the Indo-Lanka Accord to recognize the North East as the traditional homeland of the Tamils and to allow them freedom of action in their own space.
The deception of Sri Lanka is apparent with respect to the merger of the Northern and Eastern Province. The Indo-Lanka Accord explicitly recognized that “the Northern and the Eastern Provinces have been areas of historical habitation of Sri Lankan Tamil speaking people”.
Jayawardene did not include the merger in the 13th Amendment, which required a two thirds majority to change it or into the Provincial Council Act No 42, 1987, but he did it under Emergency Regulations. Thus, when the merger was challenged in 2006 by the Janatha Vimukthi Peramuna (J.V.P.) in the Supreme Court, the Court stated the merger has no legal validity. Following the Court’s decision, the Sri Lankan government could have brought back the merger through simple legislative action with a simple majority, however, no Sri Lankan government has ever done so.
“What has been most disappointing is that the Indian government, which has a legal obligation to “underwrite and guarantee the proposal” under the Indo-Sri Accord, has not asked, nor put any pressure on the Sri Lankan government to give concrete legislative meaning to the Indo-Lanka Accord to pass legislation for the merger.”
The malafide of the 13th Amendment was captured well by none other than Dr. G. L. Pieris, academic and politician, when he stated, “… I would like to stress once again the importance of sincerity, the perception of sincerity, a reality of sincerity. The 13th Amendment in the present form is the anathema of sincerity in that powers which are ostensibly devolved can be reacquired by the Centre by the use of disingenuous mechanisms, such as a description of anything under the sun as a matter in respect of which the formulation of a national policy is required”. ( ‘Towards Effective Devolution’, G. L. Peiris (Inaugural Address at the Indo-Sri Lanka Consultation on Devolution, March 4, 1995); SRI LANKA: THE DEVOLUTION DEBATE – ICES 1996:
Irrespective of the deficiencies of the 13th Amendment, the Sri Lankan government has a legal obligation to implement the Amendment, let alone a political and moral obligation. Having failed to fulfill its obligation for the last 36 years and now pledging that it will do so in the future, Wickremesinghe’s promise being is portrayed as a big breakthrough is hard to understand. What a strange world we live in!!!
It is noted when the LTTE, the embodiment of the Tamils’ political and coercive power was on the scene, the Sri Lankan government talked not only about the 13th Amendment, but also the 13A Plus. Now the LTTE is no longer here, the 13A Plus discourse has disappeared into thin air. For every political move you need power. Power does not necessarily mean military power. The justness of the cause, the legal basis of the claim, the victimhood, the support of the international community, the goodwill of the 80 million Tamils across the globe, the geographic location, etc. are components of power. The challenge before the Tamils is how to strategize and exercise that power.
The reason for non-implementation of the 13th Amendment is not the lack of will or ability. It is the nature of the Sinhala polity which is permeated with entrenched and pervasive racism that will not allow it. That is also the situation with accountability for international atrocity crimes. That is why 2015’s HRC Res. 30/1 called for a hybrid justice mechanism with both domestic and international judges. As long as the same polity persists, neither the 13th Amendment nor even a 33rd Amendment will be implemented.
Tamil National Leader Vellupillai Pirabakaran said in his famous 1987 August 4th “Suthumalai speech” with respect to the Indo- Lanka Accord stated that “the Sinhala supremist daemon will gobble up any solution whatsoever”. How realistic he was, he asked.