13th Amendment is Not Workable And will Never Be a Success

February 12th, 2008

by Rajavarothayam Sambandan

[Excerpts of the speech delivered by R. Sampanthan, MP in parliament on February 6, during the debate on the emergency dealing with the 13th Amendment to the Constitution and the APRC process]

“I am deeply convinced that we need to think from a fresh perspective and devise a new approach if we are to find a sustainable solution to the conflict in the north and the east. The violent conflict and the stalemate in the peace talks over the past years have gradually led to this issue progressing beyond the north and the east to engulf the entire country.

Some months from that statement which I read, which was in November, 2005, President Rajapakse appointed the Parliamentary Representative Committee on Constitutional Reforms and the Panel of Experts and he addressed the inaugural meeting of that body at the Presidential Secretariat on July 11, 2006. This is what the President said:

Under the heading ‘Devolution for the People by the People’ People in their own localities must take charge of their destiny and control their politico-economic environment. Central decision-making that allocates disproportionate resources has been an issue for a considerable time. In addition it is axiomatic that devolution also needs to address issues relating to identity as well as security and socio-economic advancement without over-reliance on the centre. In this regard, it is also important to address the question of regional minorities. In sum, any solution needs to as a matter of urgency devolve power for people to take charge of their own destiny.

These were the words of the President, when he addressed that inaugural meeting and I was extremely happy when I read that speech and I preserved a copy of that speech. I think the President meant what he said on that occasion.

The Panel of Experts comprised of 16 persons. There were 11 Sinhalese, four Tamils and one Muslim and that Muslim gentleman was a leading legal luminary in this country. The Experts Panel got on with their task. Eleven of them, six Sinhalese, four Tamils and a Muslim, submitted their report, we could call it the Majority Report, that was the multi-ethnic report.

Three others, all Sinhalese, submitted their report and that was looked upon as a Minority Report. Two others, both of whom were Sinhalese made their observations on both the Majority and the Minority Reports. Their observations, at least in many areas or some areas, were an acceptance of the Majority Report. Eleven out of sixteen, also supported by two others in several, or at least some areas, particularly given its multi-ethnic composition, constitutes a significant majority in any democracy.

It was these reports that resulted in the JVP which was a party to the APRC walking out of the exercise. A dialogue, unfortunately, does not find a place in the political programme of the JVP except on their own terms.

The country knows about the MoU signed between the government and the main opposition UNP, the objective of which was to evolve a consensus on the national question.

Such a consensus would have ensured a two-thirds majority in parliament for the type of solution that the President outlined in the course of his inaugural address to the APRC and the Experts Panel and ensured the required approval for any solution at a referendum in the country.

Unfortunately, the President by accommodating deserters from the UNP was prepared to sacrifice the Memorandum of Understanding signed with the UNP with all its attendant advantages, and this, I think was a singularly unfortunate event, but history was repeating itself. The President in my view could have saved the situation if he was prepared to stand tall above all others, if in fact he was truly focused on a solution and looking at the issue from the point of view of the larger and long term interests of the country, because the destiny of the country was at this time in his hands.

Unfortunately that was not to be, and the official UNP consequently dropped out of the APRC process.

Meanwhile, the Chairman of the APRC, a gentleman for whom I have the highest regard, was continuing with his efforts. He came up with his own report and the parties continued with their discussions at the APRC.

It was at this point of time that the President’s party, the Sri Lanka Freedom Party came up with its proposals, ‘A Unitary System of Government with the District as the Unit of Devolution.’ The basic features of the proposals outlined by the Sri Lanka Freedom Party before the APRC was indeed a far cry from what the President stated in his inaugural address to the APRC.

The two positions that were outlined by the SLFP and by the President in the course of his inaugural address were irreconcilable. I might say with due respect, the President had plunged from the sublime to the ridiculous. There was no way in which the President could redeem himself thereafter.

The international community had for long been insisting upon a credible set of devolution proposals that were sustainable. On January 12, the Co-Chairs issued a comprehensive statement which dealt with the need for a set of political proposals outlining a sustainable devolution programme and also makes special emphasis on the human rights situation, on the question of humanitarian access to civilians who were victims of the conflict, and in regard to access for the Co-Chairs and the facilitator to the LTTE in Kilinochchi.

This was the situation in which the President had to now deal with the nationalist parties maintaining a constant contact with him, and with the SLFP having placed these proposals before the APRC. The President could not displease the nationalist parties. He fixed January 23 as the date for the final report.

He had all along endeavoured to impress upon the international community that he was genuinely committed to an acceptable political solution. The international community was insisting on results. He was not able to deliver because the nationalist parties would not permit him to go beyond his own party’s proposals before the APRC and they were not prepared to accommodate or accept the proposals being made by the APRC Chairman and the other parties of the APRC.

The only way that the President could devise was to ask the APRC to take its own time to finalise their own proposals and seek refuge in the outdated 13th Amendment to the Constitution which was already a part of the Constitution of Sri Lanka from 1987.

The Co-Chairs and the International Community surely did not make their best efforts to achieve what already existed in the constitution as a solution to the protracted conflict. For good measure, certain clauses in regard to the implementation of language provisions which had remained moribund for over two decades were also included.

This was the pathetic state in which the President found himself and he had to somehow device some stratagem, some escape route.

The President had made his position very clear in the Independence Day speech.

He extended an invitation to us also on this Independence Day to join with him but we are prepared to join people only when we can repose our faith and trust in them and when we are quite certain that they will keep their word. Not merely has the President gone back on what he said at the inaugural address when he addressed the APRC and the panel of experts, he has gone back completely on what his own Tamil supporters Anandasangaree and Douglas Devananda had been advocating and he is not able to even accommodate the views of these people.

While wanting to implement the 13th Amendment, there is also a clear statement being made that the land powers and the police powers contained in the 13th Amendment will not be given. The cause of the conflict has been that there has been grave injustice in certain areas, and of those areas land and security have been vital.

The 13th Amendment to the Constitution contemplates the north-east merger. It recognises the north-east merger which had been a reality for 18 years and which had been acted upon by successive governments and successive presidents including the governments in which Mahinda Rajapakse was both a minister and prime minister.

If the 13th Amendment is to be implemented it can only be implemented in a merged north-east not in a separate north or in a separate east. That would be, in my submission, totally illegal; it will be immoral and it will be a fraud which nobody will accept. I want to make our position very clear in regard to that matter.

The 13th Amendment did not drop from the sky. It emerged as a result of very lengthy discussions that took place between the J.R. Jayewardene government in July and August, 1986 and the TULF. The government was represented by President J. R. Jayewardene, Gamini Dissanayake, Lalith Athulathmudali, Ronnie de Mel, A. C. S. Hameed, K. W. Devanayagam, Ranil Wickremesinghe and on the TULF side, there were Amirthalingam, Sivasithamparam, Dr. Neelan Tiruchelvam, Yogeswaran, Anandasangaree off and on, and myself. I was there regularly at every sitting.

We had several discussions over several days, from 9 in the morning to 6 in the evening, for about 10 to 15 days in July and 10 to 15 days in August 1986. That is how the 13th Amendment emerged.

Based on those discussions, President Jayewardene evolved something, but that was not acceptable to us. The moment he submitted this to the cabinet, we went and met President Jayewardene on September 29, 1987. A delegation comprising of Sivasithamparam, Dr. Neelan Tiruchelvam, Yogeswaran and myself called on President Jayewardene and we told him that the draft which he had submitted to cabinet was unacceptable, unworkable, and we said that the 13th Amendment must not be passed on those lines and we wrote to Prime Minister Rajiv Gandhi on October 28, 1987.

The letter was signed by Amirthalingam, the secretary general of the TULF, Sivasithamparam, president of the TULF and by myself, the vice president of the TULF and former Member of Parliament for Trincomalee.

This is what we said:

‘We feel it our duty to also express our disappointment with the proposals to solve the Tamil problem contained in the two bills’ the 13th Amendment to the Constitution and the Provincial Councils Bill presented to parliament by the Sri Lankan Government. These proposals do not meet the aspirations of the Tamil people nor are in anyway, commensurate with the loss of life, sufferings and privations suffered by the Tamil people. Since 1983, the TULF has always negotiated with the Government of Sri Lanka directly, utilising the good offices of the Government of India, and through the Government of India in the hope of evolving a comprehensive scheme of devolution which the TULF could recommend to the Tamil people.

‘The TULF regrets it cannot recommend the contents of these Bills to the Tamil people as being satisfactory, just and durable.’

Consequent to our representations to the Government of India, President Jayewardene who had gone to Kathmandu for a SAARC Conference in November, 1987 was requested to come over to Delhi on his return from the Kathmandu SAARC Conference.

Amirthalingam, Sivasithamparam and myself were requested by the Indian Government to be present in Delhi at that time, where extensive discussions took place between the Government of India, the officials and President Jayewardene and his team and between the President and the Prime Minister of India. There were 13 matters on which President Jayewardene agreed to make improvements to the 13th Amendment to the Constitution.

I was present in Delhi when those discussions took place. We were in touch with the Indian officials and we know exactly what happened.

But those 13 amendments were never brought about. That is the truth. In fact, on the morning that we left New Delhi, we met with Shri Natwar Singh who was the then State Minister of Foreign Affairs in the Union Government at New Delhi and Shri Kuldip Sahadev who was the Joint Secretary in the Ministry of Foreign Affairs and we were told the Government of India had a firm commitment from the President to make the improvements to the 13th Amendment. Kuldip Sahadev butted in and said, “We have the commitment in writing.’

That is the reality. We did not contest the elections under the provincial councils. We refused to contest because we said that the 13th Amendment is not workable and will never be a success. We will not touch it with the wrong end of a barge pole.

I want to make the Tamil position very clear on the floor of this House. You might get hold of some quislings, some mercenaries, whom you are now cultivating in the Eastern Province to contest elections on your behalf. But do not think you can fool the Tamil people. The Tamil people since 1956 have historically delivered certain verdicts at every election where they have stood for genuine autonomy, genuine self rule in the areas of our historical habitation, in keeping with what the President said in the course of his inaugural address to the APRC and the panel of experts.

R.Sampanthan

Member of Parliament,
Trincomalee District.

Parliamentary Group Leader
Illankai Tamil Arasu Kadchi
[Tamil National Alliance]

Entry Filed under: Federalidea