Did Jayewardene Deceive Rajiv Gandhi? - M.A. Sumanthiran

(MELBOURNE) - On the advice of dubious Indian advisers and the Indian Intelligence, RAW, Rajiv Gandhi embarked on a policy of dismantling the militant movements and disarming them. This was a 180 degrees policy change from Indira Gandhi, who advocated the freeing of Tamils from the clutches of the Sinhalese by their own effort. The advisers gave Rajiv at least 3 reasons for it.

1. Sri Lanka must be brought into Indian fold. At that point of time Sri Lanka was straying into US obit and that was against Indian interests. The oil tanks near Trincomalee was to be bought by an American company, registered in Singapore. With that Trincomalee harbour would automatically fall into American hands. This has to be thwarted.

2. The Tamil Militants are an obstacle to relationship with Sri Lanka. They have to be disarmed

3. The creation of Eelam in Sri Lanka would lead to the revival of separative movements in Tamil Nadu. Instead of stating this policy publicly, India advanced an erroneous argument that a separate state Tamil state in Sri Lanka would give justification for the Kashmiris and the Sikhs to demand statehood. If this is true East Timor or South Sudan should not have attained independence, as that would also incite the people in Kashmir and Punjab.

All the Tamil militant groups agreed to disarm as per the Indian plan, except Prabhakaran's Tamil Tigers. To get them all to agree the Indo-Sri Lankan Accord conceived the 13th Amendment to the Sri Lankan constitution to devolve limited powers to the Sri Lankan Tamils. Again the North and the Eastern provinces were to be unified into a single state and should be declared as a historical Tamil Habitat and it was unified in the late 1980s. In 2006 on a case brought by Sinhalese chauvinists, the Sri Lankan court decided the unification of the two states violated the Sri Lankan constitution and declared the merger of the North and the Eastern Provinces was illegal. With that the most important clause in the 13th Amendment was removed.

Now Rajapaksa is trying to remove the next important clauses. As per 13th Amendment land and police powers were to be vested in the Provincial Councils. Again the Sinhalese monopolized and controlled court has decided that those two powers are to be vested in the Central Government. That removes the next important powers from the NPC. Now the Sinhalese fanatics are suggesting that the 13th Amendment should be removed from the constitution altogether. In a way that makes sense; when the important clauses are not there any more, what is the purpose of the 13th Amendment?

Rajiv Gandhi or his advisers, unlike Indira Gandhi, were the least concerned about the welfare of the Eelam Tamils. If he was, he would not have signed the Indo - Sri Lankan Accord with so many clauses that are disadvantageous to the Tamils. He even deceived MGR, the Chief Minister of Tamil Nadu, into believing that the well-being of the Tamils are taken care of.

The next reason advanced was Rajiv was taken for a ride by Jayewardene. Although, the Sri Lankan President was in a helpless position while negotiating with the Indian Prime Minister, he managed to weave in clauses into the 13th Amendment that could be disputed at a later stage. This is the question raised by Sumanthiran in his article below.

Diplomats in the Colombo circles described Jayewardene as a cunning fox and Rajiv as just a cub. Rajiv was willing to antagonize the Tamils, who had been continuous supporters of India, while the Sinhalese had no love for India in any of the wars India fought with its neighbours. Even after sending the Tamils in Mullivaaikkal, India's policy hasn't changed. Nobody knows what the latest visit by Salman Khurshid, would have achieved for the Tamils. None I suppose. He has to realize, unless he is another cub, the issuing of a few certificates for ownership of houses in Vanni to Tamils would not solve the Tamil dilemma.

Prabhakaran was right in opposing the Sri Lankan Accord, describing it as a document that did not meet the aspirations of the Tamil people. Trying to disarm the Tigers brought India into confrontation with the LTTE. To date India has brought no solution to the suffering of the Tamils, but only accentuated their problems.

The Tamils in the Northern Province has given a massive mandate to the Tamil Chief Minister to bring them salvation to their problems. Hopefully, he succeeds in his endeavour. Please read the article below.

The Supreme Court granted Special Leave to Appeal on two questions of law but decided to stick to only the first question. The constitutional provisions dealing with the Provincial High Court’s jurisdiction are separate and distinct from the provisions dealing with devolution of powers. Thus any pronouncement other than on the question before court would tantamount to orbiter dictum and does not form the ratio decidendi, or “the reason for the decision”. Secondly, although all three judgments arrive at the same conclusion they follow divergent lines of reasoning. For instance, while one opinion explicitly rejects the existing statement of the law laid down in the Land Ownership Bill Determination and Vasudeva Nanayakkara vs. N. Choksy that the President’s power to dispose state land is qualified by the Thirteenth Amendment—which states that such power should be exercised “on the advice of the Provincial Council”—another cites with approval the very passage taken from the Land Ownership Bill Determination rejected in the other.

Thus, at least in terms of the question of whether the President requires the approval of the Provincial Council to dispose state land, existing law appears not to have been disturbed. This is the case because, as stated in the case of Bandahamy vs. Senanayake, the rules of precedent require that “three Judges as a rule follow a unanimous decision of three Judges, but if three Judges sitting together find themselves unable to follow a unanimous decision of three Judges a fuller bench would be constituted for the purpose of deciding the question involved.” Since the Land Ownership Bill Determination and the judgment in Vasudeva Nanayakkara’s case were both issued unanimously by benches comprising three judges, it is seriously doubtful that the recent judgment—which did not follow existing precedent—changes the law in respect of the disposition of state land. This question is critical because successive Sri Lankan governments have continued to settle ethnic Sinhalese from southern Sri Lanka in the North and East by disposing state land to them, with a view to changing the demographic composition in these areas. That programme has been intensified under the Rajapaksa regime.

Nevertheless, the political implications of the judgment are clear. The Thirteenth Amendment was introduced pursuant to the settlement of an international treaty by India and Sri Lanka providing a limited measure of devolution to Provincial Councils. The Amendment has always been understood by politicians, civil servants, lawyers, judges and the international community to devolve land powers to the Provincial Councils. Various circulars issued by the Ministry of Land and Land Development attest to the fact that the devolution of land was never in doubt. This view was strengthened by a number of judgments of the Court of Appeal and Supreme Court. Now, in a sudden instant, the Supreme Court tells us that these powers were in fact never devolved. That the way in which the Thirteenth Amendment has been understood for 25 years was erroneous. That the Thirteenth Amendment only meant for the Province to administer whatever land the Centre—in its beneficence—though fit to give away.

The timing of the judgment is critical. The fact that it came two days after the historic election for the Northern Provincial Council where the people overwhelmingly voted for devolution and self-governance, but before the Council became functional, has received much comment. More critically however, the judgment arrives at a juncture where the government has explicitly committed to denying the Northern Provincial Council constitutionally mandated powers over land and law and order. The government has now constituted a Parliamentary Select Committee—composed primarily of members opposed to any meaningful devolution—ostensibly to recommend a further weakening of devolution. The arrival of this judgment may be perceived by the government as easing its own burden and enabling it to hide behind a judgment of the Supreme Court. The government should be clearly told that this position is untenable and that it has a duty to make good on its promises of extensive devolution made to India and the international community.

Last week’s judgment offers the clearest proof yet that the Thirteenth Amendment does not provide any measure of meaningful checks on central intrusion into provincial governance. It points directly to the Amendment’s inadequacies. To its capacity to be abused and the fickleness of the devolution of the very subjects it was intended to devolve. Moreover, the judgment unequivocally demonstrates the inherent problem of devolution within a unitary state – the threat of the unilateral rollback. That the government was for four years unwilling to implement even these weak provisions on devolution is a testament to the centralizing mindset of the regime and its inability to even contemplate meaningful sharing of powers. Clearly, it only delivers when pushed, and pushed hard.

Now, it needs to be pressured even more. For those who acknowledge the need for devolution but believe the Thirteenth Amendment is sufficient, the Supreme Court’s judgment must provoke a rethink. How can one support devolution within the parameters of the Thirteenth Amendment when those parameters are constantly shifting? When there are no checks and balances to prevent a wholesale centralization—whether through executive control, legislative changes or judicial fiat—of what was previously known to be devolved? In 2006, the Supreme Court ruled against the merger of the Northern and Eastern Provinces on the instance of an extremist faction within the Sinhala community. The merger was a critical component of the Indo-Lanka Accord in that it sought to protect Tamils’ right to self-governance in the face of orchestrated demographic change. Now, attempts are made to gut provisions on devolution of land in an almost identical fashion, so as to enable uninhibited demographic change in the North and East. Mr. Gomin Dayasiri, who appeared before the Supreme Court in the instant case, now publicly exults in what he deems is a trick played on India by former President J. R. Jayewardene who approved a constitutional text which appeared to devolve land, but has now been interpreted to do the opposite. In short, India’s efforts to ensure implementation of the Thirteenth Amendment and movement beyond are being rendered redundant, by trickery and daylight land grabbing.

The Supreme Court’s judgment reminds us that devolution can never be meaningful and permanent within the asphyxiating confines of a unitary state. The urgent need is for meaningful constitutional reform so that devolution can be made more secure, the rule of law protected, and the judiciary made independent. The steady erosion of minority protections in the Indo-Lanka Accord through judicial pronouncements can only be reversed by a permanent political solution and a new constitutional order. Moderate Tamil leaders have articulated this message for more than sixty years. If people within and outside Sri Lanka didn’t believe us then, they should, and will, believe us now.

*The author, M. A. Sumanthiran (B.Sc, LL.M) is a Member of Parliament through the Tamil National Alliance (TNA), a senior practicing lawyer, prominent Constitutional and Public Law expert and civil rights advocate