Bhandari’s 13A to Shringla’s 13A

by Austin Fernando

(Former High Commissioner of Sri Lanka to India)

It was Romesh Bhandari who made initial peacekeeping efforts in Sri Lanka on behalf of PM Rajiv Gandhi. Secretary Harsh Vardhan Shringla of the Indian Ministry of External Affairs (MEA) has taken over the task. Shringla’s recent efforts have awakened an interest in the much-delayed Provincial Council (PC) elections.

Changed moods of Government

Concurrently, on Army Day the President showed flexibility about minority aspirations. The Minister of Finance offered chunks of money to ground-level politicians and promised legal amendments to expedite the process of holding the PC elections in early 2022.

Minister Ali Sabry has said the draft for a new constitution will be available before the end of 2021. The new Constitution may happen in 2022. If PC elections are held before this event, it may mean that the PCs are intact.

Mixed responses from politicians

PCs are a constitutional arrangement. They have been in existence sans Land and Police powers and continuously they have been weakened by withdrawing of certain devolved powers. President Mahinda Rajapaksa, Ministers Basil Rajapaksa, and GL Pieris promised Indians the implementation of the 13th Amendment (13A). Mahinda Rajapaksa even supported ’13A+’. (See: https://island.lk/crisscrossing-13a-abolition/)

In Delhi, President Gotabaya Rajapaksa expressed on 29-11-2019 that the 13A could not be implemented “against the wishes and feelings of the majority [Sinhala] community.” There are no antagonistic feelings against 13A among the Sinhalese. Of course, there is criticism that PCs are white elephants. These days worse criticism is expressed about the Parliament, Executive, and Bureaucracy, and I pray they would be allowed to exist!

However, the President informed Secretary Shringla that he had to “look at weaknesses and strengths of 13A.” (The Hindu 3-10-2021) This ought to have been an appropriate ‘excuse’ if he had made it in Delhi. Since Indians demanded this at his first meeting, his response 22 months later reflects his unpreparedness, lack of commitment, and disinterest or implies that he has some other plans, even dubious.

What to look for?

One may recommend presidential advisers to study 13A and reconciliation-related literature authored by eminent persons, published by respected institutions (for example, Centre for Policy Alternatives, Foundation for Co-Existence, and Berghof Foundation), and judicial review records, (Such as 13A Supreme Court Determination, Vasudeva Nanayakkara vs. KN Choksy, Maithripala Senanayaka vs. GD Mahindasoma, many on land) before briefing the President.

They can obtain information from legal luminaries, university academia, and Viyathmaga or Eliya Groups. Additionally, Hansards, Lok Sabha proceedings, statements by Tamil groups, the MEA, and the Ministry of Foreign Affairs will help broaden their horizons.

Reaching 13A

Before agreeing or disagreeing on implementing the 13A it is appropriate to understand the circumstances under which it came into being.

Extensive pressures for power-sharing originated after Black July, which triggered a wave of migrants and led to Sri Lanka coming under pressure from Sri Lankan Tamil groups and Tamil Nadu.

The Indian leaders have acted differently. For example, Indian PM Rajiv Gandhi considered Palk Strait fisheries, restoration of peace and normalcy, return of refugees, and participation in economic activities as important. Although it is being claimed in some quarters that the Indians wished for Sri Lanka’s division through devolution, they were always concerned about Sri Lanka’s sovereignty, integrity, and unity.

By December 1985 Tamil political groups commenced demanding Indian interventions, notably after President Jayewardene invited India’s help for a solution (February 1985). For instance, the Tamil United Liberation Front (TULF) (1-12-1985) presented its representation to PM Rajiv Gandhi seeking extensive power-sharing. Some important highlights were:

* Sri Lanka-‘Ilankai’ being a Union of States

* Amalgamated Northern and Eastern Provinces, whose territory cannot be changed without its consent.

* Parliament empowered to make laws for subjects under List-1 that had Defence, Foreign Affairs, Currency, Posts/Telecommunications, Immigration/Emigration, Foreign Trade/Commerce, Railways, Airports/Aviation, Broadcasting/Television, Customs, Elections, and Census only.

* List-2 had all other subjects, including the controversial Law and Order, Land, with the State Assembly possessing law-making powers.

* State Assembly empowered to levy taxes, cess/fees and mobilize loans/grants

* Special provisions for Indian Tamils

* The elected members to be given enhanced powers

* Upgrading the judicial system, for example, Provincial High Court to Appeal Court.

* Muslim rights cared for.

The Jayewardene government rejected the proposals. The TULF again addressed PM Gandhi (17-1-1986), referring to the traditional homelands and demographic imbalances. President Jayewardene steadfastly advocated a military solution and asked the Tamils who fled to return and stop using Indian soil for violence against Sri Lanka.

However, the raging conflict increased casualties and deaths, interpreted as ‘genocide’ by MEA Minister BR Bhagat and several Lok Sabha members. Some Lok Sabha Members demanded punitive interventions.

P Kolandivelu said: “…Sri Lanka is a tiny island. Cannot it be crushed? Within 24 hours it can be done. But I am not asking it to be crushed.” (29-4-1985)

V. Gopalaswamy said: “I would also request the government to undertake every possible means, including military intervention to solve the problem.” (13-5-1986) He referred to a pacifying Indian government statement: “It shows the spineless cowardice approach of this government.” (8-5- 1987)

PM Rajiv Gandhi would have been mindful of these criticisms. He vented out frustration in Lok Sabha, as well when abroad, for example in Harare. The criticisms projecting India and him as weaklings would have pressured him to get tough, which he did on June 4, 1987, by violating Sri Lanka’s air space.

Gandhi would have been satisfied with GOSL’s proposals of July 9, 1986, drafted after P. Chidambaram’s discussions. The proposals were to maintain Sri Lanka’s unity, sovereignty, integrity, and unitary nature, and implement under the existing constitutional framework. There were Annexes proposed as Notes on (i) PCs, (ii) Law and Order (iii) Land settlements, and (iv) Mahaweli Project.

While PM Gandhi was frustrated over delays and inconsistency, President Jayewardene also faced a dicey situation, as explained by former Foreign Secretary AP Venkateswaran. His narration may explain why President Jayewardene finally had to accommodate the 13A solution, for which he is mercilessly blamed.

“The president of Sri Lanka, Jayewardene, sought a separate meeting with Rajiv Gandhi … Apart from PM Rajiv Gandhi, Natwar Singh, an earlier colleague in the IFS, P. Chidambaram and myself were present at the meeting. The Sri Lankan President’s entire efforts were directed towards urging our PM to send the Indian Army to prevent his government from falling. His arguments were well-rehearsed, and he pleaded that the Sri Lankan Government would collapse soon, without India’s help. He said the Sri Lankan government could not withstand the attacks from the (JVP), Janata Vimukti Peremuna from the south, and LTTE forces from the north.”

(Source: https://www.icwa.in/WriteReadData/RTF1984/1497424044.pdf)

This political vulnerability will justify his behavior.

The reactions to the proposal and TULF’s revised formulation received in Delhi went deep into power-sharing. Indians followed by sending Ministers P Chidambaram and Natwar Singh to Colombo for discussions. It should be recalled that they were in attendance (Mid November 1986) when President Jayewardene was pleading for Indian assistance. A month later on December 19, 1986, they submitted a set of proposals. Summarily they were:

* Eastern Province to be demarcated minus Ampara Electoral District

* A PC to be established for the new Eastern Province

* Earlier discussed institutional linkages to be refined for North and Eastern PCs.

* GOSL’s willingness to consider a proposal for second stage constitutional development for the two provinces.

* GOSL’s willingness to create a post of Vice President for a specified term

* The five Muslim parliamentarians from the Eastern Province may be invited to India to discuss mutual concerns

The military operations continued irrespective of these communications and discussions. They provoked Indians, who knew the vulnerable ground situation. The Indians threatened, on February 9th, 1987, to withdraw unless Colombo pursued the political option.

Withdrawal would have had an adverse impact. The potential support for political stability or existence would have been lost. Beggars can’t be choosers! Therefore, Sri Lanka responded swiftly on February 12, 1987, focusing on the need for Tigers to eschew violence, promising that the military would cease operations in response; lifting embargoes; assuring negotiations; strengthening the administration; implementing a general amnesty; releasing those in custody not charged in courts under the Prevention of Terrorism Act; considering the outcomes of discussions Indians and GOSL held so far, including 18-12-1986 proposals. This also declared that GOSL will not conduct operations against civilians. Space was thus created for India to up the ante.