Forcing Sri Lanka to implement illegal accords

By Sangadasa Akurugoda

Legality of Indo-Lanka Accord, which paved the way for 13A, has been questioned by Daya Gamage in his excellent article titled ‘Washington maneuvering to install federalism in Sri Lanka’ appeared in The Island dated 15 August 2023. The article also described how President Ranil Wickremesinghe is currently endeavouring to implement the 13A, much to the delight of Washington policymakers. Daya Gamage is a retired Foreign Service National Political Specialist of the U.S. Department of State, once accredited to the Political Section of the American Embassy in Colombo.

The article is an eye opener to those politicians who blindly parroting the words “the implementation of the 13th Amendment since it is already in the Constitution”, possibly, most of them may not be aware of what really is in the 13th Amendment since the Indo-Lanka pact was signed over three decades ago.

Background of the 13th Amendment

Indian cargo planes invaded Sri Lanka’s air space challenging the sovereignty of our country, and almost forced former president JR Jayewardene (JR) to ‘invite’ Rajiv Gandhi to Sri Lanka to sign the agreement and to accept the Indian Peace Keeping Force (IPKF). Sri Lanka had no alternative but to ‘surrender’ to India’s demands and sign a hurriedly prepared document endorsed by the Tamil separatist groups including the LTTE.

The hurriedly-prepared JR-Rajiv Pact, endorsed by the Tamil separatist groups including the LTTE, was signed amidst curfew in 1987 and the function was boycotted by the Prime Minister R. Premadasa and Cabinet ministers including Lalith Athulathmudali, who was in-charge of National Security. Political parties such as SLFP, JVP, MEP, including a section of the UNP, were against the agreement and the extent of the opposition to the treacherous agreement was notable when a sailor attacked the Indian PM while the latter was receiving the guard of honour. An estimated 65,000 lives, mainly Sinhala youth, were lost as a result of subsequent uprising.  Although most of the Sinhala youth lost were affiliated to JVP, JVP-led NPP MP Harini Amarasuriya made a statement recently revealing that the 13th Amendment to the Constitution should be implemented fully as it has already been presented as a solution to the national question!

What is in it?

The 37 subjects devolved to Provincial Councils are given in the List I (and also in the List III – Concurrent List) of the Ninth Schedule. These include all the subjects other than those retained by the government (the List II or the Reserved List).

The subjects retained under the Centre include National Policy on Security, Foreign Affairs, Posts and Telecommunications, Broadcasting, Television, Justice in so far as it relates to the judiciary and the courts structure, Finance in relation to national revenue, monetary policy and external resources; Customs, Foreign Trade, Inter Province Trade and Commerce, Ports and Aviation, National Transport, Minerals and Mines, Immigration and Emigration and Citizenship, Immigration and Emigration and Citizenship, Elections, Census and Statistics, National Archives, Archaeological Activities and Sites and Antiquities declared by or under any law made by Parliament to be of National Importance, Rivers and Waterways, Shipping and Navigation, Maritime zones including Historical Waters, Territorial Waters, Exclusive Economic zone and Continental Shelf and Internal Waters, State Lands and Foreshore except to the extent specified in Item 18 of List I.

It would be easier to write down the powers remaining in the Centre (as above) since the powers devolved (are to be devolved) are enormous. Powers yet to be handed over include police and Land and Judiciary.

Failure of 13th Amendment and India’s commitments

Prior to the signing of the 13th Amendment, there had been a belief that the ‘Official language policy” of 1956 was the root cause of the conflict. The 13th Amendment made Tamil an official language overnight as a solution but the charges against discrimination and demand for self-determination continue to be made based on those lines. If official language is the root cause, the conflict would have resolved itself with the implementation of the 13th Amendment language policy.

Although the Indian government undertook to disarm the terrorist group in return for implementing the constitutional amendment imposed on the Sri Lanka government, India has failed miserably to fulfill its obligation as per the agreement. On the other hand, Sri Lankan people had to bear the huge cost of war against terror and the cost of implementing the constitution amendment, thus imposed under the failed agreement, in addition to the loss of lives since 1987. Since it is the Sri Lankan Security forces who ultimately disarmed the terrorists, the moral rights of the Indian government to ask the government of Sri Lanka to implement the 13th amendment is highly questionable.

Current status of the PCs and attempts to implement harmful agreements

The JR-Rajiv Pact didn’t serve the desired expectation at all.  The Provincial Councils (PCs) set up under the Indo- Lanka Agreement are mere white elephants.

The Island editorial dated 18 August 2023 titled ’Cost of failed remedy’ revealed that the expenditure related to PCs has increased tremendously and raised the question whether there is any benefit to the general public on spending such a large sum of funds. Sri Lanka’s PCs expenditure was reported at 286,031.000 LKR million in 2017. This records an increase from the previous number of 276,147.000 LKR million for 2016. The expenditure averaged 103,769.000 LKR million from Dec 1996 to 2017. The data reached an all-time high of 286,031,000 LKR million in 2017 and a record low of 22,128,000 LKR million in 1996. (https://www.ceicdata.com/en/sri-lanka/provincial-councils-revenue-and-expenditure/provincial-councils-expenditure)

Fortunately, no government has yet devolved the police and land powers as per the said agreement, based along ethnic lines. If fully implemented, it will be irreversible and, if an attempt is made to reverse them, the consequences will be disastrous. As per the media reports, Northern PC, under the Chief Minister Wigneshwaran passed more than 100 resolutions (including one seeking an UN inquiry to investigate the genocide of the Tamil people) inciting racial tension, and several others which are harmful to the country as a whole. Segregating people according to communal lines under the name of devolution could only strengthen the hands of separatist movements still alive.

UNP leaders, including the current President Ranil Wickremesinghe, are known for signing notorious agreements, detrimental to the country in many ways, with foreign powers or with their involvements, without going through the parliament or briefing the contents of the agreements to the opposition political parties or the general public.

Similarly, the CFA arranged by the Norwegians and signed by the UNP leader Wickremesinghe and the terrorist leader Prabhakaran in 2002 was not transparent and didn’t serve any purpose to the country. Its legality is questionable since the agreement was signed by the PM who was neither the Head of the Executive nor the Head of the Cabinet of Ministers. Wickremesinghe via that agreement, handed over some areas of the North and Eastern Provinces to the LTTE without the knowledge or the approval of the public. Unless this foolish agreement was abrogated and LTTE defeated militarily to remove the so-called “LTTE territories”, the situation of the country would be entirely different today.

During Yahapalana government’, PM Ranil Wickremesinghe said that the agreement on the implementation of a US$ 480 million MCC grant would be signed before the presidential election and asked why it should be rejected when the government is receiving US$ 480 million under the grant.

Thus, signing any form of treacherous agreement or endeavoring to fully implement the 13A, much to the delight of foreign powers by a UNP leader like Ranil, disregarding its consequences, is not surprising at all.

Conclusion

In fact, some argue that the Indian Constitution has vested more powers with the Centre than those made under the 13th amendment in this country and when implemented in full Sri Lanka’s system will surpass the Indian’s quasi-federal system. Thus, the unitary nature of our Constitution was shattered with the establishment of Provincial Councils. The powers once devolved, especially along ethnic lines, though the Centre has the power to dissolve any provincial council, will be irreversible and, if an attempt is made to reverse them, the consequence would be disastrous.

Thus, the 13th Amendment to the Constitution, forced on us by India, is certainly imported and not of our own. Further, the Amendment is not acceptable to all sections of the people. The ill-fated, ill-defined and hastily prepared 17th Amendment to the Constitution was a minor case in point of attempting to implement anything, just because it is in the constitution, compared to the disastrous consequences that could be expected by devolving power on ethnic lines.

Ironically, thousands of innocent civilians who got injured and surviving relatives of further thousands of those who died as a result of the terrorism abetted by India, we Sri Lankan deserve an apology (at least) from the perpetrators for the losses incurred to us due to terrorism. Instead, it is likely that India and the western countries led by Washington will continue to interfere with the internal affairs of Sri Lanka, not only due to the internal politics of Tamil Nadu, but to satisfy the geopolitical interests. Full implementation of the 13th or any other Amendments, or the complete overhaul of the entire Constitution of Sri Lanka, is a matter for the Citizens of Sri Lanka. Continuous insisting on how we should solve our problem and to push Sri Lanka towards Indian solutions is simply a gross violation of our rights as a sovereign country and a clear example of how powerful states are bullying the weak and small states to achieve their own geopolitical interests.