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Wednesday, 17 July 2013

Indo Lanka Accord and the Provincial Councils – III

We will continue with our discussion on the infamous Indo Lanka Accord that was imposed on us almost twenty six years to date, which according to some was signed by J R Jayawardhene under duress. However we are not prepared to excuse JRJ for that as he should have stood up to  any pressure from India without betraying the sovereignty of the people. As we said in the first installment of the present series Indo Lanka Accord is not only defunct due to India failing to fulfill its obligations under the Accord but also due to it being inconsistent with the constitution of Sri Lanka, for the undefined terms in the Accord that made it meaningless and to wrong assumptions in what may be called factual statements.

We shall begin with the last of the above. The Accord states: “ 1.4 Also recognising that the Northern and the Eastern Provinces have been areas of historical habitation of Sri Lankan Tamil speaking peoples, who have at all times hitherto lived together in this territory with other ethnic groups:”. It is wrong to state that the Northern and Eastern provinces have been areas of historical habitation of Sri Lankan Tamil speaking peoples who have at ALL TIMES hitherto lived in this territory with the OTHER ethnic groups.  It is clear the document refers to the Tamil and Muslim communities, in whatever sense the word peoples is used in the two provinces. The provinces were established only as late as 1889 by the English colonial powers and before that there were no two provinces as demarcated as Northern and Eastern Provinces as at present. Even on that count it is wrong to say that the Tamil and Muslim communities had lived at all times  in the two provinces concerned unless all times mean since the demarcation was carried out in 1889. It is well known that the Muslims were settled in the present Eastern Province of the country by the Sinhala King Senerath and that the Tamils were settled by the English in between Muslim settlements having brought them for work involved with construction of the roads. The “pittu bamboo” demography of Muslims and the Tamils in the eastern Province is due to this fact and it should not be forgotten that until S J V Chelvanayakam ralised the importance of the Tamils in the Eastern Province in establishing the Eelam, the so called Batticaloa Tamils were looked down by the Jaffna Vellalas. If as the Accord also admits the Tamils and Muslims lived in these parts of the country with the other ethnic groups then it would imply the Sinhalas being the other ethnic group also had being habitants and it would be correct to say that the areas under consideration are areas of historical habitation of the Sinhalas as well. It has to be emphasized that the present eastern province has been part of Ruhunu Rata and nobody can deny that the Sinhalas were living in these areas at least from the time of the Magama Kings, through forced “international agreements” and JRJ had no right to betray the Sinhalas in 1987 simply because he was the President and the people would not recognize the Indo Lanka Accord as could be found out through a referendum under the Article 86 of the constitution. The President could submit to the people by referendum whether they approve the Indo Lanka Accord or not and act according to the results of such referendum.    

As we have already said in the previous installments the Provincial Councils had not been established on the 29th of July 1987 and the Accord referred to then non existing Provincial Councils without even defining them. Even the provinces had not been defined in the constitution at that time and they came into existence only with the eighth schedule of the constitution together with the thirteenth amendment. Even then they were not defined as administrative units, unlike in the case of districts, though the Accord referred to them as administrative units as in 2.1 and 2.2. “2.1 Since the Government of Sri Lanka proposes to permit adjoining provinces to join to form one administrative unit and also by a Referendum to separate as may be permitted to the Northern and Eastern Provinces as outlined below:
2.2 During the period, which shall be considered an interim period (i.e. from the date of the elections to the Provincial Council,as specified in para 2.8 to the date of the referendum as specified in para 2.3), the Northern and Eastern Provinces as now constituted, will form one administrative unit, having one elected provincial council. Such a unit will have one Governor, one Chief Minister and one Board of Ministers.” The interesting fact is that nothing is said about Chief Ministers and Board of Ministers in general or with respect to other provinces.

The clause 2.9 of the Accord was not honoured by India though Sri Lanka had to confine the security personnel to the barracks. We reproduce below the relevant clause. “ 2.9 The emergency will be lifted in the Eastern and Nothern Provinces by Aug. 15, 1987. A cessation of hostilities will come into effect all over the island within 48 hours of signing of this agreement. All arms presently held by militant groups will be surrendered in accordance with an agreed procedure to authorities to be designated by the Government of Sri Lanka. Consequent to the cessation of hostilities and the surrender of arms by militant groups, the army and other security personnel will be confined to barracks in camps as on 25 May 1987. The process of surrendering arms and the confining of security personnel moving back to barracks shall be completed within 72 hours of the cessation of hostilities coming into effect.”

The clause 2.15 is very vague and it could be interpreted according to the whims and fancies of the reader. The Brahmins in the Indian Foreign Office, I suppose, were not given enough time by Rajiv Gandhi who was in a terrific hurry to get control of Sri Lanka as India did in the case of Sikkim. Unfortunately for him perhaps he did not know that before him many in the areas now known as India had failed in their attempts to rule Sri Lanka and that he would be killed by Prabhakaran in due course. Clause 2.15 is as follows. “2.15 These proposals are conditional to an acceptance of the proposals negotiated from 4.5.1986 to 19.12.1986. Residual matters not finalised during the above negotiations shall be resolved between India and Sri Lanka within a period of six weeks of signing this agreement. These proposals are also conditional to the Government of India co-operating directly with the Government of Sri Lanka in their implementation.” It is clear from the above that the Indo Lanka Accord is defunct now and that the thirteenth amendment as such is in any event not referred to in the Accord.

Another interesting clause of the Accord is the following. “2.10 The Government of Sri Lanka will utilise for the purpose of law enforcement and maintenance of security in the Northern and Eastern Provinces the same organisations and mechanisms of Government as are used in the rest of the country.”  Even if we assume that the Accord is valid for the sake of argument, Clause 2.10 implies that the  Sri Lankan government would be utilizing for the purpose of law enforcement the same organizations and mechanisms that are used in the other parts of the country. This clause is also vague due to the use of the words will and are therein and Sri Lankan government could use it to its advantage.  

There is no agreement between India and Sri Lanka on the thirteenth amendment, and the Sri Lankan government in any event does not have to consult the Indian government on the amendment of the thirteenth amendment. Even if the Indo Lanka Accord is still valid all that the Indian government could do is to see whether the Accord is violated as a result of amending the thirteenth amendment.  As far as the police powers are concerned all that the government of Sri Lanka has to do, in order to “honour” the Accord, assuming that it is valid, is to have the same mechanisms for the enforcement of law in all the provinces of the country. Most of the Articles in the thirteenth amendment including the Lists and the appendices especially on police powers and land distribution powers could be repealed without violating the Indo Lanka Accord by Sri Lanka. For example, it is not necessary to set up provincial divisions of the Sri Lankan police force provided that the Northern and Eastern provincial councils have the same mechanism of law enforcement as the rest of the country.

Nalin De Silva