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Full implementation of 13A: Final solution to ‘national problem’ or end of unitary state? – Part V

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Thimphu Talks

By Kalyananda Tiranagama
Executive DirectorLawyers for Human Rights and Development

(Part IV of this article appeared in The Island of 29 Sept., 2023)

Present Provincial Council System and 13th Amendment – Solutions forcibly imposed on Sri Lanka by India

The Indo-Lanka Accord signed on July 29, 1987 is not an accord voluntarily entered into between two independent States of their own free will, after mutual discussion and understanding. The 13th Amendment to the Constitution and the Provincial Councils Act of 1987 are also not documents drafted and enacted by the government of Sri Lanka of its own free will to give effect to the understanding and agreements reached between the Govt. of Sri Lanka and the Tamil political parties and militant groups following discussions that went on for years.

When talking of Indian pressure brought on Sri Lanka to sign the Indo-Lanka Accord and bring the 13th Amendment to the Constitution and set up Provincial Councils, the general impression is that it refers to the Indian threat of invading our air space and dropping dhal by air on the North East of Sri Lanka.

However, when one goes through the negotiation process between the high officials of the Indian government and Sri Lanka, as mentioned in the President Jayewardene’s address to Parliament, and the documents cited in the Judgement of the 13th Amendment case, it appears that the Indian government brought pressure and compelled the government of Sri Lanka to move away from the consistent stand taken by Sri Lanka all along and to accommodate certain unacceptable demands of Tamil political parties by incorporating them into some of the provisions in these documents.

As stated by President J. R. Jayewardene in his address to Parliament on February 20, 1986:

‘‘At the Thimphu discussions, on August 27, 1985, when Dr. H. W. Jayewardene, the leader of the SL delegation refused to accept or discuss the ‘Four Cardinal Principles’ raised by the six Tamil groups, and indicated areas on which discussion and agreement possible, the TULF together with the other groups walked out of the conference and refused to participate in the discussion.

The Four Cardinal Principles were as follows:

a. Recognition of the Tamils as a distinct nationality; b. a separate home land; c. self-determination for the Tamils; and d. the linkage of the Northern and Eastern Provinces,

‘‘Thereafter, Dr. Jayewardene left for New Delhi to meet the Indian Prime Minister Rajiv Gandhi and discussion resumed with Indian officials and drafted the Terms of Accord and Understandings, initiated by Dr. Jayewardene and the Deputy Secretary, Ministry of External Affairs of India, Ranjan Mathai. Then Dr. Jayewardene met the Indian PM and informed him of the decision reached. On 31. 08. 1985, the Ministry of External Affairs of India issued a press release on their meeting. Dr. Jayewardene had a detailed and constructive discussion with the Foreign Secretary Mr. Romesh Bhandari. A comprehensive paper was drawn up covering all issues of importance and relevance. This detailed draft could serve as the basis for negotiations towards a mutually agreed Accord by the parties concerned.

‘‘On the return of the delegation to Sri Lanka, it was found necessary to amplify some of the matters in the Draft Accord. Three members of the Sri Lankan delegation had discussions with senior officials of the Ministry of External Affairs of India in New Delhi from 10 to 13 Sept. At the conclusion of these talks, the Ministry of External Affairs of India issued a press release: ‘The SL delegation gave some amplification of certain issues which figured in the paper drawn up earlier in New Delhi. They also provided some facts and figures about how some of the proposals contained in the Paper would work in practice. It will be recalled that the Paper drawn up during Dr. Jayewardene’s visit is to serve as a basis for further negotiations towards a mutually agreed Accord by the parties concerned.’

‘‘The SL delegation returned to Sri Lanka with the full expectation that future discussions with a view to arriving at a solution would be on the basis of the Terms of Accord and Understanding.

‘‘The Accord reached in Thimphu and New Delhi were to be the basis of any future discussions. Such discussion would not reopen the Four Principles mentioned in any form whatsoever. This was the understanding of both the Govts of India and SL.

‘‘The Terms of Accord and Understanding were to be forwarded to the representatives of Tamil groups by the Indian Govt. But all the efforts of the SL delegation and the representatives of the Indian Govt. proved of no avail as these groups did not make any response to reach a settlement.

‘‘More than three months later, on 1st December 1985 the TULF submitted some proposals to Rajiv Gandhi. But they were by no means an attempt to discuss the draft Terms of Accord and Understanding. TULF proposals were diametrically contrary to the draft Terms of Accord and Understanding. Govt. observations on TULF proposals was dispatched to New Delhi on January 30, 1986.’’

H. W. Jayewardene

President Jayewardene’s Address to Parliament, made on February 20, 1986, mentioned only what had happened up to the end of January 1986. Justice Wanasundara’s Judgement in the 13th Amendment to the Constitution Case (1987/2 SLLR Pp. 333 – 383) mentions several things that happened after that date in this process.

The following passages are taken from the said judgement:

‘‘As early as September 1985 the mechanism of Provincial Councils had been proposed. In the Draft Framework of Terms of Accord and Understanding of 30.08.85, it was stated that –

‘ 5. A Bill for the amendment of the Constitution to enable the creation of Provincial Councils and the devolution of powers on them shall be enacted by Parliament by a 2/3 majority. Thereafter Parliament will pass an Act directly conferring on the Provincial Councils the requisite legislative powers. Such power shall not be revoked or altered in any manner except by an Act of Parliament passed by a two-thirds majority after consultation with the Provincial Council or the Councils concerned.’

‘‘The next development was further talks held between the Sri Lankan Government and an Indian delegation, led by Hon. P Chidambaram, Minister of State, in July 1986. Based on those talks a detailed Note containing observations on the proposals of the Sri Lanka Government as the Framework was sent to the Indian Government. The following three paragraphs of the Note are relevant for the purpose of this determination:

1. A Provincial Council shall be established in each Province. Law-making and Executive (including Financial) powers shall be devolved upon the Provincial Councils by suitable constitutional amendments, without resort to a referendum. After further discussions subjects broadly corresponding to the proposals contained in Annexe 1 to the Draft Framework of Accord and Undertaking of 30.08.85, and the entries in List ll and List III of the Seventh Schedule of the Indian Constitution shall be devolved upon Provincial Councils.

2. In the Northern Province and in the Eastern Province the Provincial Councils shall be deemed to be constituted immediately after the constitutional amendments come into force….

7. Any amendments to the constitutional provisions or any other laws providing for devolution of legislative and executive (including financial) powers shall require a 2/3 majority as provided in the present Constitution. Any further safeguards for example a further requirement of a referendum may also be discussed.”

‘‘In a preamble to this Note it was agreed that suitable constitutional and legal arrangements would be made for those two Provinces to act in coordination. In consequence of these talks a constitutional amendment took shape and form and three lists – (1) The Reserved List (List II); (2) The Provincial List (List I); and (3) The Concurrent List (List Ill) too were formulated.

‘‘The next stage of the discussions were the Bangalore discussions between our President Jayewardene and Prime Minister Rajiv Gandhi in November 1986. The Agreement between them recognised 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 together in the territory with other ethnic groups.’’ According to these discussions Sri Lanka agreed that these two Provinces should form one administrative unit for an interim period and that its continuance should depend on a Referendum and it was also agreed that the Governor shall have the same powers as the Governor of a State in India.

It was also proposed to the Sri Lanka government that the Governor should only act on the advice of the Board of Ministers and should explore the possibility of further curtailing the Governor’s discretionary powers. The Indian side also proposed that provision be made on the lines of Article 249 of the Indian Constitution on the question of Parliament’s power to legislate on matters in the Provincial list and, likewise, that Article 254 of the Indian Constitution be adopted in regard to the Provincial Council’s power to make a law before or after a parliamentary law in respect of a matter in the Concurrent List. The Sri Lanka Government’s observations on the Working Paper on Bangalore Discussion dated 26th November 1986 show that the suggestions made by the Indian Government were substantially adopted.

‘’ On the 29th July, 1987, an Accord was signed by our President J. R. Jayewardene and the Indian Prime Minister Rajiv Gandhi in Colombo. The First part of this Accord reaffirmed what was agreed at Bangalore that the Northern and Eastern Provinces have been areas of historical habitation of Sri Lanka Tamil Speaking people who at all times hitherto lived together in the territory with other ethnic groups. It also provided for these two Provinces to form one administrative unit for an interim period and for elections to the Provincial Council to be held before 31st December 1987.

The Second Part was the Annexure to the Agreement. It provided, inter alia, for a Indian Peace Keeping Contingent and for Indian observers at the Provincial Council Elections and a Referendum to be held in the Eastern Province to determine whether the Northern and Eastern Provinces should continue as one administrative unit. The legislation now tabled in Parliament is in terms of this Accord. Of course, an attempt is now being made to take shelter under Article 27 (4).’’ (13th Amendment case Judgement – Pp. 369 – P. 371)

When the material placed above relating to the negotiations between Sri Lanka and India for bringing about a solution to the Tamil ethnic problem in Sri Lanka is analysed, it becomes clear that India took the Sri Lankan government for a ride, compelling the latter to abandon its principled stand of rejecting the Cardinal Principles raised by the terrorists and the TULF at the Thimphu Talks, to accept a solution imposed by New Delhi and to accede to some of these unacceptable demands of Tamil political parties by incorporating them into the Indo-Lanka Accord and the 13th Amendment.

On 31. 08. 1985, the Ministry of External Affairs of India issued a Press Release on their meeting. Dr. Jayewardene had a detailed and constructive discussion with the Foreign Secretary Romesh Bhandari. A comprehensive paper has been drawn up covering all issues of importance and relevance. This detailed draft could serve as the basis for negotiations towards a mutually agreed Accord by the parties concerned.

The Paper drawn up during Dr. Jayewardene’s visit is to serve as a basis for further negotiations towards a mutually agreed Accord by the parties concerned.’’

The Sri Lankan delegation returned to Sri Lanka with the full expectation that future discussions with a view to arriving at a solution would be on the basis of the Terms of Accord and Understanding.

The Accord reached in Thimphu and New Delhi were to be the basis of any future discussions. Such discussion would not reopen the Four Principles mentioned in any form whatsoever. This was the understanding of both the Govts of India and SL.

Then what happened?

Three months later, on 01 December 1985, the TULF submitted some proposals, not to the government of Sri Lanka, but to Rajiv Gandhi. The TULF proposals were diametrically opposed to the draft terms of accord and understanding. The Sri Lankan government’s observations on the TULF proposals were dispatched to New Delhi on 30 Jan., 1986.

(To be continued)

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