By Ayathuray Rajasingam –

Ayathuray Rajasingam

Since the signing of the Indo-Sri Lanka Peace accord, there was reluctance to implement the 13^th Amendment as it was unacceptable to the ruling Sinhalese politicians.  On the other hand, it was felt that neutralizing the 13^th Amendment would be a monstrous justice to the Tamils paving way for the creation of the essence of inequality to be embedded to the constitution. The issue is whether Sri Lanka can wipe out the 13^th Amendment and if so, what will the reaction of India.

The period from 1970 to 1987 in Asia should be determined in the context of political developments in the South Asian region. During the period of the Bangladesh independence war with Pakistan, India was unhappy when Sri Lanka allowed Pakistani planes to refuel at Katunayake airport. The USA and China were unable to assist Pakistan, when Bangladesh was provided with military assistance in gaining independence by India. In view of the Pakistan’s behaviour, India was exploring to invade West Pakistan and Pakistan-controlled Kashmir which compelled America to urge China to mobilze its forces along the Indian border, but China wanted a ceasefire with India. When, Bangladesh was recognized immediately by India and Russia,  America recognized it much later and China went to the extent of vetoing its admission to the UN until 31^st August 1975. Meanwhile India took various measures to modernize and strengthen its naval force and air force. This was the scenario in South Asia.

When J.R.Jayawardene (JR) assumed power, the third constitution was passed in the Parliament. The TULF had become the opposition party. It was a disgrace that mobs went to the extent of burning the official residence of the opposition leader during the riots. Perhaps they would have found it difficult to digest that a Tamil Party has become the opposition party. The problem led the TULF leader A.Amirthalingam to be an ally of Indra Gandhi when J.R was the pet of USA and China. India smelt the dangers to its sovereignty through Sri Lanka and took up the Sri Lankan Tamil issue to monitor foreign activities in Sri Lanka.

JR was adamant not to give in to Tamils after the 1983 civil riots. When refugees flooded in Tamil Nadu, Indra Gandhi government sought to make it clear to JR that armed intervention in support of the Tamils was an option, India would consider if diplomatic situation should fail. Meanwhile some unpleasant incidents occurred in India. The Golden Temple was invaded by the Indian Army and the Sikhs were massacred. Thereafter, Indra Gandhi’s son, Sanjay Gandhi, who was a dominating figure in the Indra Gandhi’s Government, died in an aircraft crash. Later, Indra Gandhi was assassinated. Finally Rajiv Gandhi assumed office as Prime Minister of India.

After the 1983 communal riots, Tamil militant movements were established and thousands of Tamil youths joined which prompted the Armed Security Forces to engage in search and destroy operation. It is the military operation at Vadamaradchy that led India to intervene in Sri Lanka as guardian of the oppressed Tamils, resulting in Operation Poomalai where Indian Air Force to air-drop food supplies over Jaffna and JR sought assistance from US and China which proved to be a futile exercise as both countries did not wish to go against India. Thereafter, the signing of the Indo-Sri Lanka Peace Accord in July 1987 and the induction of IPKF in Sri Lanka took place. The issue is has Sri Lanka bowed to India.

Prior to the signing of the Peace Accord, in 1985 India organized a meeting at Thimpu for Sri Lanka and the Tamil militants with the TULF for peace talks in order to end the war in Sri Lanka. Four principles were laid down at this Thimpu Talk, viz, (1) recognition of Sri Lanka Tamils as a nation, (2) recognition of the existence of an identified homeland for Sri Lanka Tamils, (3) recognition of the right of self-determination of the Tamil nation, and (4) recognition of the right to citizenship and the fundamental rights of all Tamils, who view Sri Lanka as their own country. This was known as the Thimpu Declaration of 1985. But Sri Lanka rejected the first three principles, as they violated Sri Lanka’s sovereignty. Sri Lanka took the view that since the right of self-determination implies the right of secession and the right to create a separate State, they are totally unacceptable. International law does not regard the principle of self-determination which authorizes a group to take action that would result in impairment of the territorial integrity and unity of a sovereign and independent State. International Law recognizes that the right of self-determination applies only to colonial peoples striving to win independence from foreign domination and does not apply to States. Eventually the peace talks collapsed on 18^th August 1985 due to the intransigence of both parties.

Mention should be made that India was only keen to bring both the warring factions to settle their disputes in an atmosphere of cordial friendship and peaceful manner. India expected a give and take policy from both parties. Both parties failed to control their emotions. They failed to realize that negotiation is an art and involves technique and not demand. Sri Lanka’s representatives were adamant in criticizing the principle of self-determination to which India was not happy, as it was a direct hint to India which militarily assisted Bangladesh to gain independence from Pakistan. India was also unhappy with the Tamil militants for being inflexible in their attitude. Neverthless, Tamil insurgents made a blunder in not allowing the TULF leader A.Amirthalingam solely to present the problem like Bismark of Germany or Cavun Cavoor of Italy.

The Indo-Sri Lanka Peace Accord was signed with the objective of keeping America away from gaining a foothold in Sri Lanka. When J.R.Jayawardene asked J.N.Dixit to be specific about India’s concern, J.N.Dixit said that Sri Lanka should assure India on the following terms:

• Reduction & phasing out of foreign military and intelligence personnel in Sri Lanka from western countries and Pakistan;
• Sri Lanka should reorganize its foreign and defence policies and reduce its involvement with USA, Pakistan, China, Israel & South Africa;
• Sri Lanka should give assurance that its seaports and airports would not be utilized by foreign powers which were antagonistic towards India or which affected India’s security interest negatively; and
• Sri Lanka should fulfil the assurances which it gave in 1985 that India would be given an opportunity to maintain the Trincomalee Oil Tank Farms and that Sri Lanka would prevent foreign broadcasting stations like the VOA from being utilized for military purposes by western countries.

When J.R.Jayawardene pointed out that these were excessive, J.R.Dixit politely reminded that these were mentioned by Minister P.Chidambaram on 29^th April 1985 and 5^th May 1985. In addition, Indian Minister of State Natwar Singh did the same on 24^th November 1986 and again between 17^th and 19^th December 1986. Briefly it means Sri Lanka bowed to India in a peaceful manner. The two developments – (1) from the day Bangladesh obtained independence until the formation of the SAARC that took place in 1985 and (2) thereafter to the signing of the Peace Accord 1987 – sent a strong message to its neighbours, China and the West that India will not ignore strategic developments in its close proximity in Sri Lanka (a reminder to Rajapakse’s regime) that are likely to harm the security interest of India and would support the minority demand for an equitable deal. Even during the Tsunami in 2004, Indian naval ships were reported to be along the coast of Sri Lanka.

With the signing of the Indo-Sri Lanka Peace Accord, the IPKF was inducted in Sri Lanka. The IPKF was sent not only to maintain peace in the North and East Provinces, but also to monitor the activities of the Islamic terrorist activities in the Eastern Province where there were signs of gradual emergence of Wahhabism. Perhaps that may be the reason why Kathankudy was razed to the ground by the IPKF. Moreover, the inflexible attitude of the Tamil militants, which reflected the suspicious behaviour of the LTTE, cautioned India to have contacts with one Gnanapragasam Gnanasekeran alias Paranthan Rajan, a prominent figure of PLOTE who formed the Three Stars militant group with splinter groups. He formed a political group known as ENDLF with the breakaway faction of PLOTE, in the event of any reprisals from the LTTE with the aid of R.Premadasa to hamper the Indo-Sri Lanka Peace Accord. As expected R.Premadasa had secret links with the LTTE to fight the IPKF, without knowing the dangerous consequences. This is where the Indian diplomacy worked well.

In pursuance of the Indo-Sri Lanka Peace Accord, the Sri Lanka Parliament passed the 13^th Amendment to the 1978 Constitution and the Provincial Councils Act to establish the Provincial Councils. Tamil was made an Official Language under the 13^th Amendment. The 13^th Amendment was the outcome of the Indo-Sri Lanka Peace Accord relating to the rights of the minority Tamils which was utilized as the weapon for India and the USA to grate Sri Lanka.

The turn of events in South Asia led Sri Lanka to be the focal point in the eyes of USA when India and China were competing for supremacy in the Indian Ocean region. After 1980 US expanded its co-operation in the economic and scientific realms with the view to counteracting Russian influence in the region.

But after the defeat of the LTTE, the prospects for national integration appears to be blocked under Mahinda Rajapakse’s regime because his government is likely to roll back the 13^th Amendment which was instrumental in making Tamil as an official language and limited autonomy to the Northern Province. The dismantling of North-East Provinces appears to be a calculated move – a sign of ignoring the Peace Accord.

There are drawbacks in the 13^th Amendment which revolves round (1) Provincial Governor, (2) a Provincial Board of Ministers with a Chief Minister and (3) Provincial Council.

Provincial Governor is elected by the President who will have to carry out his orders. If the President is not satisfied, he can dismiss the Provincial Governor. It means the Provincial Governor will hold office during the pleasure of the President in accordance with Article 4(6) of the Constitution. Therefore, the 13^th Amendment has not weakened the powers of the President. The President is all powerful.

The fact that the Provincial Council will have control over the Provincial Public Service is without any foundation. The Governor is empowered to alter, vary or rescind any order made by the Provincial Public Commission, because the Provincial Governor is the administrative head of the Provincial Public Service.

Even the Chief Minister of a Province is tightened by way of Oaths. The 6^th Amendment was declared to be a violation of the right to freedom of expression as enshrined in Section 25 of the International Covenant on Civil and Political Rights, by the International Commission of Jurists. This is an embarrassing situation for Sri Lanka in the eyes of the western democratic countries which honour and respect the provisions of the International Covenant on Civil and Political Rights to which Sri Lanka is a signatory. The civil liberties in Sri Lanka have become a matter of considerable debate.

The only notable feature for the Tamils in the 13^th Amendment is that the Provincial Governor is required to act on the advice of the Chief Minister only in respect of formal and ceremonial matters relating to the appointment of Ministers, summoning of Provincial Council, proroguing of Provincial Council and dissolution of Provincial Council which are matters that will not affect the President by virtue of Article 4(b) of the Constitution. It is the financial matter which is vital for the development of the North Province. But the Provincial Council was not empowered to withdraw money from the Provincial Fund without the approval of the Governor. Moreover, the Provincial Council will have to obtain the recommendations of the Provincial Governor to levy taxes. In addition, the Provincial Fund will be in the custody of the Provincial Governor, who will regulate the Provincial Fund. Briefly the 13^th Amendment catered to the objectives of the President. The question of improvement of the 13^th Amendment to fulfill the aspirations of the legitimate rights of the Tamil speaking people was totally ignored by the Sinhalese politicians.

What is required is an improvement of the 13^th Amendment to legitimize the rights of the Tamil speaking people with a positive thinking in accordance with the democratic practices. Sri Lankan politicians have to learn from Canada as to how the French speaking Quebecois are looked after or how the British politicians are looking after the interests of Scotland, Wales and Northern Ireland by way of enacting separate Acts for them to govern within the unitary government of the United Kingdom. Canada always rectifies all defects and justified their aspirations of the French people of Quebec which strengthen the unity of the country. But in Sri Lanka, Sinhalese politicians always explore ways and means to suppress the aspirations of the Tamil speaking community. They are not concerned that Tamils are a segment of the Sri Lankan population since time immemorial. It is time for Sri Lanka ruling politicians to address the central issues of the Tamil national struggle, instead of deviating the attention of the Sinhalese with the creation of Bodu Bala Sena (BBS), sending of Sri Lankan military personnel for training to India and later to Pakistan at a time Muslims have been the target of BBS, settlement with Sinhalese in lands belonging to the Tamils, etc, some of which are against the spirit of the Peace Accord and nullify the concept of TRULY SRI LANKANS.

Being aware of the weakness of the SAARC by virtue of its Article 10 which states that bilateral and contentious issues shall be excluded from the deliberations, the Indo-Sri Lanka Peace Accord was drafted in a manner for India with the view to forge both the Sinhalese and the Tamils as close partners within Sri Lanka. It may be argued that there is a diversity in the types and forms of political regimes as found in India, Pakistan, Sri Lanka, Bhutan, Nepal, Tibet, etc based on caste, language, religion, etc., and as such there cannot be unity among the Indian States. But since India (Pakistan included) gained its freedom through bloody war and because of the pressure from external sources to its sovereignty, India realized the value of independence. Had Sri Lanka fought a bloody war for its independence like the USA or India, the politicians would have taken into consideration of all the communities and respect their rights upon realizing the value of independence. Likewise, had SAARC been a strong organization like the European Union with the enshrinement of a Human Rights Charter and a Parliament, ethnic Tamil problem would not have cropped up in Sri Lanka. However, since the Indo-Sri Lanka Peace Accord was signed between two countries, it can only be abrogated by both parties and cannot be abrogated unilaterally. It appears that India has landed Sri Lanka in the pit from where Sri Lanka cannot escape. The Indo-Sri Lanka Peace Accord and the 13^th Amendment is a total defeat for both the Sri Lanka Tamils and the Sinhalese while India emerged as victorious.

The improvement in the 13^th Amendment revolves round the issue of the right to self-determination. Self-determination is a human right of all people, which could be exercised within a country. It is not the issue that it leads to secession, but the question of how such self-determination will lead to strengthen the unity of the country as demonstrated in Canada, India, Switzerland, etc. It is the question of mutual understanding and respecting other’s rights, for which the ethnic communities should be granted power to pursue their own economic, social and cultural development. The power should be given to the ethnic Tamils and Muslims who seek proper representation and participation in decision making, power sharing and the right to exploit the natural resources on a regional basis, subject however that the granting of power should not mean the right to secede based on people’s ethnicity. The right to self-determination is a means of confident building measure. Sri Lanka should realize that every country is been built on trust. The eradication of the impediments disclosed in the 13^th Amendment is the expectation of democratic countries for the smooth functioning of the Provincial Councils, in the new amendment to be passed. It is then the people of Sri Lanka can be called TRULY SRI LANKANS reflecting multiculturalism.  If, however, Mahinda Rajapakse is bent on wiping out the 13^th Amendment and the Peace Accord, at a time he is under a moral obligation to uphold the Commonwealth values, it is going to be a million dollar question.