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
17-07-2013
17-07-2013