Adhering to Foreign Affairs Constitutional Mandate?

by Austin Fernando

Many criticisms are directed at the Ministry of Foreign Relations (MFR) (previously Ministry of Foreign Affairs -MFA) for alleged operational failures. Incidentally, the successes of MFR are not spoken much, not for want, but that is life!

For example, currently, there are criticisms against the ‘withdrawal threat of the Generalised Scheme of Preferences Plus (GSP+)’, and the March 2021 UNHRC Resolution. Even previously we have heard criticisms against Yahapalanaya over ‘co-sponsoring the UNHRC Resolution- 2015.’ The Mahinda Rajapaksa government faced criticisms over the handling of UNHRC Resolutions (2009-2013), and the withdrawal of GSP+. While some appreciated President R Premadasa for the Gladstone Affair, others criticised him. Criticisms were directed against President JR Jayewardene over the Falklands War issue. If looked at apolitically, every government has had its share of criticisms.

Constitutional Mandate for Foreign Affairs

It is appropriate to review the MFR/MFA operations through a constitutional prism. First, let us look at the fountain of power or the mandate for ‘foreign affairs.’ The Sri Lankan Constitutions maintained a centralised nature until the 13th Amendment introduced devolution and restructured administration. It demarcated the functions of the State. Accordingly, the functions of ‘Foreign Affairs’ in the List II- Reserved List were:

“This would include-

(a) Foreign Affairs: all matters which bring the Government of Sri Lanka into relations with any foreign country;

(b) Diplomatic consular and trade representation;

(c) United Nations Organization;

(d) Participation in international conferences, associations, and other bodies and implementing of decisions made thereat;

(e) Entering into treaties and agreements with foreign countries and implementing treaties, agreements, conventions with foreign countries.

In (a) above, two terms i. e. “all matters”, and “with any foreign country,” are important for MFR functioning. If the Constitutional intentions are to be satisfied, the MFR, other political and administrative hierarchies should adhere to this constitutional mandate.

The last few decades’ experiences show that adherence to these two ‘terms’ was seen sparingly. High political authorities have ignored these terms. We did not see any public outcry or even a restricted or nominal concern shown by the MFR, and its predecessors, against non-adherence, though occasional political outbursts happened. Examples for ‘outbursts’ were observed when the Indo- Lanka Accord was signed, UNHRC Resolution was co-sponsored, when the Indian Peace Keeping Force was invited, etc. These related to “international relations”, but with minute, or no stakeholder consultation before embarking. Looking at mandate (b), (d), and especially (e), obviously the role of the MFR spreads on a wide canvass.

Regarding mandate (c) the MFR holds sway. Many recent criticisms on (c) were on human rights, the Prevention of Terrorism Act, disappearances, reconciliation, returning refugees and repatriated workers suffering from COVID 19, etc. These have domestic political attachments and are complex

The list of violations of the 13A- List II stipulations is long. I recall a few experiences in my short service as a diplomat. (I have many more!)

Recent Foreign Relation Experiences

Following-up Agreements, Treaties, Conventions, diplomatic meetings are expected from the MFR. Coordinating with stakeholders inclusive of missions abroad, keeping them abreast of decisions matters. Does this happen? Yes, it happens in the breach. An example of default in information sharing by MFR was exposed when MFR requested the Delhi Mission for the proceedings and minutes of President Gotabaya Rajapaksa’s delegate meetings with Indian dignitaries while knowing that quite unconventionally none from the Mission accompanied the President! Really, the Mission should have requested them from MFR!

More seriously, I mention how decisions at President Gotabaya Rajapaksa’s discussions with Indian dignitaries were followed. During the 40 days of service after the President’s visit until I was recalled, the Delhi Mission did not receive any follow-up directives on the visit. Is it the respect to PM Modi and interest shown toward India, the outcomes of the visit, or is it only the non-adherence of the mandate? Indians are a sensitive and sensible lot!

Though PM Modi offered a 450-million-dollar Line of Credit as “India’s full assistance in taking” Sri Lanka “in the path of rapid development,” MFR did not exhibit that urgency, rapidity, reflected from lacking public knowledge about Indian projects since this pledge. These are the criteria exhibiting the direction of the path of rapid development.

Anyhow, the bi-lateral concerns were never conveyed to the Delhi Mission either by the Presidential Secretariat or MFR, and hence there was no mission follow-up. The mission could not automatically know items to follow up, being absent at presidential deliberations. Nevertheless, the citizens must know the outputs/outcomes of PM Modi’s pledges. We do not hear of new project information, or even whether Sri Lanka has formally accepted the pledges. After twenty months of the visit, it is not the best outcome for relations building for the President with the closest neighbour, friend, sometimes called the relative, especially when Indians reflect President’s relationships with China. The MFR’s mandate accommodates such review and information dissemination.

Observing fast-moving Chinese projects, the Indians wonder whether the Modi Pledges have been relegated to the backburner, and preference is elsewhere. This is of security and political connotations to Indians.

To my understanding, only the Solar Alliance’s $100 million offered for solar power projects are being processed. Concurrently, ADB-assisted solar projects in the Jaffna Islands and other projects such as road construction, the de-silting of the Tissamaharama tank commenced after Modi’s pledges; they are carried by Chinese firms. Balancing the Indian concerns as regards the Chinese power project in the Jaffna Islands could have been easy if the Solar Alliance project had been used. (Yahapalanaya was also responsible for this delay.) Indian drone surveillance of our coastlines also would have been redundant.

For comparison, I quote another Indian experience. Having provided $ 1.4 billion assistance to the Maldives, Indians again focused on the Maldives, which has a population of 530,953 (2019), financing major infrastructure development that included a $100 million grant and $400 million new line of credit. Indian External Affairs Minister Dr. S Jaishankar announced the creation of an air bubble with the Maldives to facilitate movement and the commencement of the cargo ferry service between the two countries.

The reason for such relationship-building by the Ministry of External Affairs (MEA) was the Chinese- Maldivian bond, which perturbed India. For India, it should have similar concerns with us as well. When similar Indian responses are not observed under even worse circumstances, it makes one wonder why. When India delays finalising the US$ 1,000 million facilitation requested by our government while Indian-Maldivian relations expand, one asks why. Have we failed to reach the promised “very high level” bilateralism, enunciated by President Rajapaksa in Delhi?

PM Modi pledged $450 million when President Gotabaya Rajapaksa visited India. Our former Presidents visiting India did not experience this kind of generosity. PM Modi showed similar generosity to the Maldivian President (US $ 1.4 billion), Bhutanese PM (Indian Rs. 4,500 crores), on their first visits. This may have made President Rajapaksa state that “he would strive to take his country’s bilateral relationship with India to a “very high level”. I doubt whether his effort has reached fruition.

Shouldn’t the MFR be held accountable for non-adherence to its mandate?

The Maldives succeeded while we were haggling over the Eastern Container Terminal (ECT), the Trinco Tank Farm Project (TTFP), Mattala, etc. Maybe, the Maldives accommodated Indian development activities. I do not support endorsing every Indian project as demanded. It is not necessary. Yet, considering the Indian marketplace economics, it is appropriate to finding middle-ground as we did in the case of the Colombo Port City. Commencing negotiations with Indians on the Western Container Terminal is a positive response.

For comparison, Nepal received Rs. 2,802 crores from Indian Annual Neighborhood Financing – 2020 provisions (irrespective of the brewing Kalapani boundary dispute), while Sri Lanka received only Rs. 2,317 crores over a decade. A few days before President Rajapaksa visited Delhi, without any MFR direction, I brought the neighborhood financing viz. Sri Lankan receipts issue with the Indian hierarchy, and the Indians convinced of the need to assist us. Probably, the sum of $ 450 million reflected this thinking. The MFR must study the reasons and pursue action to attract Indians.

At the request of Dr. Indrajit Coomaraswamy, Governor of the Central Bank of Sri Lanka (CBSL), the Mission negotiated with Indian authorities a $400 million Swap, and the CBSL succeeded. To save Sri Lanka from being placed on the “grey list” of the Financial Action Task Force, regarding money-laundering, the Mission intervened, and CBSL succeeded, not on MFA initiations, but the personal request of friendly Governor Coomaraswamy. Such rare interventions come under the purview of items (a) and (e) of the Mandate, but rarely used.

I would like to mention a lesson learned from PM Modi to prove how the Indians take foll-up action. In 2018, returning from the Maldives, he stopped over in Colombo, and the MoU 2017 would have been discussed. He sent a few officials, led by Dinesh Patnaik, Additional Secretary MEA to meet Colombo-based agencies. My understanding is that the MFA and my Delhi Mission had no role to play. This move or its outputs were never conveyed to the Delhi Mission. We learned it from MEA friends. This lack of cohesive adherence to items (a) and (e) of the Mandate by MFR and other stakeholders, bungles relations building.

MEA Minister S Jaishankar visited Colombo and met the representatives of the incumbent adminstration and demonstrated India’s interest and support. It was a total embarrassment to us to receive information about this visit from ‘Indian Express’ journalist Subarjit Roy, and not from MFR! True to MFA/ MFR tradition, no intimation was conveyed to the Delhi Mission Long live the ‘dead’ Mandates (a) and (e)!

Diplomatic formalities

Apart from the constitutional mandate formalities in foreign affairs are serious businesses so much so, in India, there are no shortcuts available to foreign envoys to access the higher levels of administration without approaching the MEA.

In Sri Lanka, we have observed all superior politicians and administrators meet diplomats without reference to the MFR/MFA. Indians probably do so selectively due to logistical reasons. Here, I experienced this due to personal attitudes toward the Foreign Office. The proceedings of such discussions at higher levels are not shared with the MFR. It prevents informed diplomatic decision-making. The tacit fault lies in those who permit direct access and refrain from reporting to MFR.

In India, a representative of the MEA always sits at discussions. At one-on-one meetings with the Prime Minister, for instance, such representation is absent. From the manner matters are pursued by the MEA, it is obvious that the contents of such discussions are shared with the MEA.

While MEA does not permit direct access to State Government authorities without MEA clearance, we have generally ambassadors directly dealing with our provincial authorities, which could create difficult managerial issues. During my tenure in Delhi, I remember a Governor of a Province, and previously even Chief Ministers showed keenness to deal with India and State Governments, which is ‘dangerous.’ Mandate (a) helps manage this issue.

MoU -2017- A Specific Study

I take the case regarding a Memorandum of Understanding (MoU) signed between Sri Lanka and India in 2017 for economic cooperation, to prove how these Mandates default. I suspect the MFR pursued this MoU only as a reference to a Cabinet Memorandum, though it had much broader implications.

I may quote an issue from the MoU i.e., the Trincomalee Tank Farm Project (TTFP)– as a case study to prove where the silence of the MFA and general apathy and uncertainty of governments create problems even to successor governments. The TTFP had been an undecided issue before the 2017 MoU. The TTFP 2003- Agreement was followed by the government from 2011 to 2018, but dilly-dallying was observed throughout.

For the 2017 MoU Cabinet Memorandum, observations were submitted on TTFP by two Ministers, namely Ravi Karunanayaka, ‘noting’ the Memorandum, and Chandima Weerakkody on the structure of the Project. A ‘confirmed’ Cabinet decision was taken to sign the MoU with stakeholder consultation. But the signed MoU has detailed the Cabinet-approved MoU, though the Cabinet decision has drawn conditions (i.e., further “consultation”, and “separate Cabinet memoranda pertaining to the joint projects.”)

Conceptually, there are two major issues- i.e., the structure of the Project and land ownership. The latter is a crucial issue with Attorney General’s and Cabinet’s decisions showing mixed responses. On these, can someone challenge the legality of revisions in Section iv of the signed MoU? These could have been avoided through “stakeholder consultations” and “separate Cabinet Memoranda” as agreed by the Cabinet. These issues may rekindle negativity and delay finality.

I quote the Supreme Court’s LMS judgment that declared: “A pre-condition laid down in paragraph 1.3 is that an alienation or disposition of State land within a Province shall be done in terms of the applicable law only on the advice of the Provincial Council. The advice would be of the Board of Ministers communicated through the Governor, the Board of Ministers being responsible in this regard to the Provincial Council.” (Sri Lanka Law Reports [2008] 1 Sri L.R: page 172) Considering this status, I contend that the work steps applicable to Section iv of the signed MoU need review. If not, cannot Section iv be challenged on “procedural invalidity?”

Now that the Eastern Container Terminal (ECT), Mattala, the Sampur Solar Power projects (in 2017 MoU) have not been carried out, Indians will naturally pursue the TTFP vehemently. Financially strong parties coerce or intrude on allied economic issues through emergent openings. I am not a lawyer, and I contend that due to the country’s financial crisis, we have provided such an opening to India through TTFP. India may have deliberately strategised indecisiveness on the $1,000 million facilitation. It could resurface if/when Finance Minister Basil Rajapaksa negotiates the financial facilitation. Can he also strategize negotiating on the quoted “procedural invalidities”?

To my mind, the TTFP could also become an economically exciting allied project. Unfortunately, this is not much discussed publicly. In the MoU 2017, Section v reads as “v. A Port, Petroleum Refinery, and other industries in Trincomalee, for which GOSL and GOI will set up a JWG by end June 2017.” These openings will allure renegotiation to reach middle ground, and newly negotiated terms to evolve paths to lessen political embarrassment and summon economic prosperity.

Conclusion

There may be other Missions and personnel with experience with non-adherence to the Constitutional Mandate. Such experiences and issues must be made use of by those concerned in executing the Constitutional Mandate for Foreign Affairs.

I have mentioned India because whenever Indo-Sri Lanka relations deteriorate, Sri Lanka faces political and diplomatic embarrassment, as we have experienced in 1987 during the conflict, in 2013, and 2021 at the UNHRC. Avoiding such situation is the “job” of the main Mandate holder, the MFR.