Thirteenth Amendment to Sri
Lanka Constitution: Devolution or Comic Opera - Nadesan Satyendra
homeland to the Tamils of Eelam
Nowhere is the refusal to recognize the existence of the Tamils of Eelam as a
people with a homeland reflected more clearly than in the provisions of the
Provincial Councils Act in respect of the merger of the Northern and Eastern
The Indo Sri Lanka Accord
signed by Prime Minister Rajiv Gandhi of India and President J.R. Jayawardene of
Sri Lanka, on the 29th of July 1987, acknowledged that the Northern and Eastern
Province 'have been areas of historical habitation' of the Tamils in the island
of Sri Lanka. (Preamble to Indo Sri Lanka Accord, July 1987)
It was an acknowledgment which was watered down by the additional statement
that the Tamils 'have at all times hitherto lived together in this territory
with other ethnic groups'.
Be that as it may, the Indo Sri Lanka Accord was right to recognize that the
togetherness of the Tamil people had grown, hand in hand, with the growth of
their homelands in the North and East of Sri Lanka, where they lived together,
worked together, communicated with each other, founded their families, educated
their children, and also sought refuge, from time to time, from physical attacks
elsewhere in Sri Lanka.
The Accord was right to recognize that without an identifiable homeland the
Tamils in Sri Lanka would not have become a people with a separate culture and a
separate language and that without an identified homeland they will cease to
exist as a people in the future. And in the words of Malcolm Shaw in Title to
Territory in Africa:
"Modern nationalism in the vast majority of cases points to a deep, almost
spiritual connection between land and people. This can be related to the
basic psychological needs of man in terms of the need for security and a
sense of group identity... the concern for the preservation of habitat
exists as a passionate reflex in all human communities. territory is the
physical aspect of the life of the community and therefore reflects and
conditions the identity of that community."
After all, it was this which was partially recognized both by the 1972
Constitution and by the 1978 Constitution when these Constitutions made
provision for the use of the Tamil language in the Northern and Eastern
Provinces. It was this which was recognized by Professor Virginia Leary in her
Report on the Ethnic Conflict in Sri Lanka in 1981 when she declared that the
Tamils could be considered to a people with a distinct language, culture and to
an extent, a defined territory. (Professor Virginia Leary, ICJ Report,
1981 at page 69)
Therefore the signatories to the Indo Sri Lanka Accord were right in taking
the view that there was no need to hold a referendum before declaring
that the Northern and Eastern Provinces 'have been areas of historical
habitation' of the Tamil people.
resorts to the subterfuge of a referendum
But though the Accord recognized the Northern and Eastern Provinces as areas
of historic habitation of the Tamil people, the 13th Amendment and the
Provincial Councils Act refused to translate that recognition into
The constitutional comic opera was continued in
the special acting style of the 13th Amendment -
that which was seemingly given with one hand was
taken with other.
The Provincial Councils Act provided that the President may by Proclamation
merge the Northern and Eastern Provinces if he is satisfied that all arms and
ammunition held by the militant groups have been surrendered and there has been
a cessation of acts of violence. The Act then went on to provide for a
referendum to be held in the Eastern Province to determine whether the people of
the Eastern Province want the Eastern Province to be continued to be linked with
the Northern Province.
If the people of the Eastern Province vote against a linkage, then the merger
will be terminated. But if the people of the Eastern Province vote for a linkage
with the Northern Province, a poll shall not be required to determine the wishes
of the people in the Northern Province. The Provincial Councils Act rightly
assumes that the Tamil people living in the Northern Province want a merger of
the Northern and Eastern Province and that a poll would be superfluous. But it
refuses to accept that the Tamils living in the Eastern Province are also a part
of the same Tamil people.
Machievellian provision intended to secure that the
merger is temporary
The reason for this Machiavellian provision is not too far to seek. A few
days before the signing of the Accord, President Jayawardene stated to the
National Executive Committee of the ruling United National Party:
"...Only one thing has to be considered. That is a temporary merger of the
North and East. A referendum will be held before the end of next year on a
date to be decided by the President to allow the people of the East to
decide whether they are in favour or not of this merger. The decision will
be by a simple majority vote...
In the Eastern Province with Amparai included there are 33% Muslims, 27%
Sinhalese and the balance 40% Tamils. Of these Tamils there are two
categories. More than half of them are Batticaloa Tamils and the rest are
Jaffna Tamils. Then, if the Jaffna Tamils form 20%, then I think that 80%
are opposed to such a merger.
Mr. Devanayagam and Mr. Majeed (members of President Jayawardene's Cabinet,
one being a Tamil and the other a 'Muslim' Tamil) have told me so. Then if
the referendum is held by the Central government and the approval of those
who return to the East is sought, I think a majority will oppose it. Then
the merger will be over. What do we gain by this temporary merger, the
President asked and said that it would see the end of the terrorist
movement..." (Sri Lanka News, 29 July 1987)
The enthusiastic recognition of the Northern and Eastern Province as the
areas of 'historical habitation' of the Tamils was apparently a 'temporary'
enthusiasm confined to the preamble of the Accord.
The merger of the Northern and Eastern Province was a temporary merger
intended to serve an immediate purpose and get over a pressing immediate
difficulty - namely the need to 'see the end' of that which President
Jayawardene chose to describe as the 'terrorist movement' in his address to his
Executive Committee, and that which he himself had acknowledged as the
'militant' movement in the Indo Sri Lanka Accord which he signed on the 29th of
At a press conference immediately after the Accord was signed, President
Jayawardene confirmed that at the polls in the Eastern Province he would
campaign against the merger.(Sri Lanka News 12 August 1987)
As President Jayawardene was careful to point out to the Executive Committee
of the ruling Party, included in the Eastern Province was the Amparai District.
That which he did not state and that which his listeners were well aware was
that during the past fifty years, state sponsored colonisation had contributed
to considerable increases in the Sinhala population in the Amparai District.
On the one hand the Sri Lankan government sought to use the vote of recently
settled Sinhala colonists to prevent the merger and this led to the concerted
efforts of the Sri Lankan Government to bring in more Sinhala settlers into the
Eastern Province in the immediate aftermath of the Accord.
On the other hand the Sri Lankan government sought to campaign on the basis
of dividing the Tamil people into Jaffna Tamils and Batticaloa Tamils, and into
Muslim Tamils and non Muslim Tamils.
And, finally, the Sri Lankan Government ensured that the Provincial Councils
Act may itself be amended by the Central Parliament by a simple majority and in
this way the result of a referendum in favour of a merger, may in any event, may
be nullified at a suitable and convenient time - after the surrender of arms.
The legislative provisions for the merger of the Northern and Eastern
Provinces constitute a subterfuge - an exercise in double speak intended to
confuse not only the Tamil people but also an international audience
increasingly concerned with the denial of the basic and fundamental rights of
the Tamil people.
But beneath the cosmetics, the underlying political reality of the 13th
Amendment was that it refused to recognize the Tamils of Eelam as a people - and
it refused to recognize the existence of the Tamil homeland where the identity
of the Tamil people had in fact grown.
The architects of the 13th Amendment were unable and unwilling to break away
from the path trodden by successive Sinhala governments which have sought to
divide the Tamil people into smaller units and so eventually assimilate and
'integrate' them into a homogeneous Sinhala nation - an assimilating path which
had led to confrontation and which had culminated in the armed struggle of the
Tamil people against that which
they rightly regarded
as genocide. " more