The 13th Amendment, anti-Indianism and Sri Lanka’s security imperatives
by Dayan Jayatilleka

One of the most laughably absurd of all the criticisms directed against the incumbent administration, is that its commitment to the full and immediate implementation of the 13th amendment which makes for provincial autonomy, is somehow a betrayal of the election mandate of President Rajapaksa as contained in his manifesto. This criticism, levelled by radical ultranationalists, betrays triple ignorance: ignorance of a Constitution and its role in the polity; ignorance of the election manifesto and mandate of the incumbent President; and ignorance of forms of government and systems of state.

A Constitution is the basic law of the land. No election mandate or manifesto ranks above it, nor can it. A president is elected under the Constitution, and his most fundamental duty is to uphold the Constitution. If a Constitution is to be changed it must be according to the process and procedure laid down by the Constitution itself.

It seems to have been forgotten by the critics that "the 13th amendment" is merely shorthand for the 13th amendment to the Constitution. The 13th amendment is part of the Constitution itself. As such, President Rajapaksa is sworn to uphold it, as would be any other President, so long as the amendment is not repealed by a lawful, constitutional process, i.e. a process laid down in the Constitution itself. There is no choice in the matter, and no electoral mandate can conceivably supersede the supremacy of the Constitution and its provisions.

The argument that the 13th amendment was the product of gunboat diplomacy is not only an over-simplification, it is also irrelevant. The 13th Amendment was the result of a whole chain, an entire series of causes and effects, one of which was coercive diplomacy. What makes it irrelevant is that Constitutions are often products of conflicts, even wars, including wars which result in interventions and more dramatically, occupations – the Constitution of Japan being a case in point. Whatever the circumstances and chain of causation, this is the form that History has taken in the case of a particular country. This does not make a constitution eternal. What it does however is to ensure that such amendments or entire Constitutions cannot be repealed other than by duly elected and constituted, Constituent Assembly. Nothing of the sort has taken place in Sri Lanka, with regard to the existing Constitution or the 13th amendment.

The second display of ignorance of the critics pertains to the mandate of President Rajapaksa, or "Mahinda Chinthana" as it is called. The aspect of the mandate that concerns this issue is the pledge to remain within, or, to put it more strongly, uphold, the unitary form of state. President Rajapaksa himself has, on solemn official occasions, spelled out his stand as "maximum devolution within a unitary state". The recent pledge to fully implement the 13th Amendment is in no way a contradiction of the election mandate, because the 13th amendment was ruled two decades ago, and has been recognised ever since, as within the parameters of the unitary constitution.

What the President has done is to commit himself to the reactivation and full implementation of a part of the Constitution which has remained dormant because of the armed actions and entrenched presence of the separatist LTTE.

The third area in which ignorance is displayed by the critics, concerns forms of state and government. The government is accused of attempting to introduce federalism, when the Supreme Court has clearly ruled that the 13th amendment and resultant provincial autonomy does not amount to federalism. The assumption of the critics is that any form of devolution of power, of power sharing, is federal in character and a transgression of the limits of the unitary state. This betrays a notion of the unitary state as a purely centralised state with no power sharing between centre and periphery. In turn, this betrays ignorance of the many, well known systems of devolution and regional and/or provincial autonomy in non-federal systems, including unitary ones. These range from China to the UK and from Spain to Indonesia and the Philippines.

The radical ultranationalists combine their critique of the promise to reactivate the 13th amendment with retro-chic anti-Indian sloganeering. These slogans cannot have an immediate mass resonance because the old context of cross-border (some alleged state-sponsored) terrorism and overt military incursion is long gone. However, the political movement coining the slogans has a longer-range objective, which is sought to be achieved by a two-pronged tactic. By preventing any attempt at devolution, i.e. internal reform which alone can forestall external interference and by simultaneously decrying attempts at intervention, the movement hopes to generate a self-fulfilling prophecy, much as it did in the 1980s. The salient difference between the strategy of the 1970s and ‘80s and that of the early 21st century is the transparent hope of influencing and inheriting much of the military rather than going up against it as in 1971 and the late ‘80s.

Permitting the blockage of internal reform – devolution – can prove nothing less than suicidal for Sri Lanka. We need the support of Asia, in the face of Tamil Diaspora driven pressure from the West. We need the support of both rising power in Asia: China and India. China has no Tamil lobby, shares our views on state sovereignty and secessionism, and has enjoyed excellent ties of long standing and bipartisan character. It is a reliable friend and ally. However, we also need the support of our neighbours. No one can harm any country, if its neighbours stand with them. Without the support of one’s neighbours, one is vulnerable. India is our neighbour. She is also a rising power on an upward curve of global popularity – she is courted by all others. Given the realities of geopolitics and geo strategy, we shall not be safe if India turns against us, or simply turns away from us, even if we enjoy China’s full support.

Having balanced the threat from the Tigers, the Tamil Nadu factor and doubtless many other constants and variables, India has, at the highest levels, stated its position on Sri Lanka. It welcomes, as a first step, the pledge to fully implement the 13th amendment. The recent critical statements by India’s two Communist parties, the CPI-M and the CPI, indicate that political sentiment in India may be approaching a tipping point in relation to Sri Lanka. Certainly the imminence of general elections in bound to have an impact, and we must note that any non-Congress administration may have fewer anti-LTTE memories than a Congress government in which Rajiv Gandhi’s widow plays a decisive role. Sri Lanka must get India on board without delay, and the modest price for that support is the full implementation of the 13th amendment, i.e. of our own Constitution.

The recent naval encounters also underscore the need for a more active Indian role in interdiction. Whatever the domestic political cost of antagonising the radical ultranationalists, it is dwarfed by the potential security cost of alienating India. Whatever the pain and damage that the radical ultranationalists can inflict, these are dwarfed by the pain and damage that will result from a laissez-faire policy on the part of our neighbour which enables the LTTE to operate relatively freely from or through Southern India. This window of opportunity will not last for long. The global economic slowdown/downturn is bound to impact negatively upon us, while the results of the US elections could impinge dramatically.

As Mao pointed out, in war and politics, it is not only a matter of enemies and friends – there are also the intermediate forces. These have to be won over or at the least neutralised. The war or the political struggle is won by that side which wins over or neutralises the intermediate forces, thereby isolating the main enemy. If on the other hand, one is oneself isolated, one loses. The 13th amendment is the method by which the intermediate forces, domestic and external – the moderate, non-Tiger or anti-Tiger Tamils, and India - can be won over. Therefore, the full implementation of the 13th amendment as promised, is nothing less than an urgent strategic and security imperative.


(The writer was Minister of Policy Planning & Youth Affairs in the North-East Provincial Council set up under the Indo-Lanka Accord and the 13th Amendment in 1988. The views in this article are strictly the personal opinions of the author).



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