Indo-Lanka Peace Accord Void ab Initio
Posted on July 17th, 2013
Dilrook Kannangara
Separatists in Sri Lanka and India use the Indo-Lanka Peace Accord to scuttle attempts to reunify the nation after decades of war. 13A to the Constitution that followed the Indo-Lanka Peace Accord has been rendered useless as it failed to achieve peace in war time and is of no use in peace time. 13A was never widely discussed with the public. It was simply an imposition from India. In a strange case of legal absurdity, some claim Sri Lanka cannot change its own Constitution, the provisions relating to 13A! This must be a worldƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s first where a sovereign nation cannot alter its own Constitution. There is no provision even in the Accord prohibiting Sri Lanka change the 13A. They quote the July 1987 Indo-Lanka Peace Accord arguing that it binds Sri Lanka and India according to which Constitutional amendments were made by way of the 13A.
Indian Interpretation of 13A Similar to MacArthur Constitution of Japan?
After invading and subjugating Japan, General Douglas MacArthur, commander of all Allied forces in the Pacific, directed the writing of the Japanese Constitution of 1947. Article 9, The Constitution of Japan (1947) is one such imposition which states:
ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Aspiring sincerely to an international peace based on order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. In order to accomplish the aim of the preceding paragraph, land, sea and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
Indian stated approach towards Sri LankaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s right to self-determination, the right to amend its Constitution and take action in the interest of national security is driven by similar sentiments. However, Sri Lanka is not bound by any such obligation.
Interestingly, Japanese Prime Minister Shinzo Abe has repeatedly vowed to repeal Article 9 of Japanese Constitution without consulting the Allies who imposed it 66 years ago.
Sri Lanka must follow the Japanese approach which can be achieved easier than Japan.
Void ab Initio ƒÆ’-¡ƒ”š‚
Validity of the Indo-Lanka Peace Accord has been challenged. It has been violated on many counts. For instance no referendum was held in the Eastern Province as required by the Accord by 31 December 1988. India didnƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t make good its obligations under the Accord and Sri Lanka too disregarded obligations imposed by the Accord. Operation of the Accord has become impossible by way of frustration. However, what is the status of the Accord considering the legal framework that existed at the time it was signed?
The President of Sri Lanka is bound by the Constitution. He has no right to violate the Constitution. Violation of the Constitution occurs when the President agrees to anything contrary to the Constitution. Indo-Lanka Peace Accord violates the Sri Lankan Constitution on many counts. Therefore it is void ab initio (illegal from the start).
Indo-Lanka Peace Accord section 2.3 states:
ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-2.3 There will be a Referendum on or before 31st December, 1988 to enable the people of the Eastern Province to decide whether:
a) The Eastern Province should remain linked with the Nothern Province as one administrative unit, and continue to be governed together with the Northern Province as specified in para 2.2 or:
b) The eastern province should constitute a separate administrative unit having its own distinct provincial council with a separate Governor, Chief Minister and Board of Ministers.
The president may, at his discretion, decide to postpone such a referendum.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚
However, the Constitution as it stood in July 1987 states:
Chapter 1, section 4 (e): the franchise shall be exercisable at the election of the President of the Republic and of the Members of Parliament, and at every Referendum by every citizen who has attained the age of eighteen years, and who, being qualified to be an elector as hereinafter provided, has his name entered in the register of electors. ƒÆ’-¡ƒ”š‚
As such there is no room for a referendum to be held in the Eastern Province only as required by the Indo-Lanka Peace Accord. The Constitution as it was in July 1987 allows everyone the right to vote at a referendum.
Section 4 of the Constitution further enforces this:
4 (a) the legislative power of the People shall be exercised by the Parliament, consisting of elected representatives of the People and by the People at a Referendum
Therefore, it is a violation of the Constitution as it stood in July 1987 to agree to an Accord requiring a referendum to be held only in one province depriving the People (as construed in the Constitution) the right to vote at such a referendum. ƒÆ’-¡ƒ”š‚
Section 2.18 of the Accord states: The official language of Sri Lanka shall be Sinhala. Tamil and English will also be official languages.
This is a gross violation of the Sri Lankan Constitution as it stood in July 1987. Chapter 4, section 18 of the Constitution states: The Official Language of Sri Lanka shall be Sinhala.
By agreeing to the contrary, the President has violated the Constitution. Indo-Lanka Peace Accord is hence invalid from the start as it violates Constitutional provisions. Sri Lankan parliament didnƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t ratify the Accord. The People didnƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t ratify the Accord.
Indo-Lanka Peace Accord is intentional violation of the Constitution and therefore there is no binding agreement between the parties. In a different legal system, the Constitution of the United States provides that the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur. However, the Sri Lankan Constitution does not award such power to the President. Indo-Lanka Peace Accord is not a treaty either and as such it does not have the power and validity of a treaty.
It is time Sri Lanka declares the Indo-Lanka Peace Accord invalid. Indian point of view on the unilateral annulment of the Accord is that it cannot be done unilaterally. However, on the other hand, it cannot be upheld or enforced unilaterally either. Since the Accord is void ab initio, a declaration of its invalidity with notification sent to India would suffice.
July 18th, 2013 at 3:52 am
Thank you Dilrook and previously Neville Laduwahetty for clearly defining that the whole thing now is illegal. Why wait?? It has to be ditched forthwith! While a referendum will do the job, that will be comparatively expensive. Also, the present day UNP shamelessly pretends that it has no moral responsibility for their ancestor’s immoral deed of 13A despite the duress!! – there should be some ‘rockets’ directed on the UNP’s current generation as well including the present UNP leaders for their brazen audacity in trying to now conveniently wash their hands off the 13A pretending amnesia! More pressure must be put on the UNP by the Public to expose their utter hypocrisy- S de Silva – London
July 18th, 2013 at 6:05 am
Good analysis here by Dilrook for which we thank him. Now we have our various Constitutional rights as well as the Vienna Convention (article by Neville Ladduwahetty) to show us the way out of this 13-A mess.
We seem to be living in the worst of times, and yet the best of times to change matters for the better. Change has to come to make the vast majority of people in Lanka feel safe & secure. Tamil Nadu will have to look after herself. Cut TN loose, or else they will never grow up.
July 18th, 2013 at 8:06 am
The Bearded man audaciously said that PC Elections will be held with no changes. He must have said that with Presidents authority. The proof of the pudding is in the eating. Hobsons choice. We are forced to wait and see.
July 18th, 2013 at 10:59 am
Yes, the Accord must go, but it must be done in the proper way, without being confrontational and creating unnecessary hostility. This is NOT because India is “big” and we are “small”, but because a courteous way is the right way to handle it. The law is on our side in this issue and we should be able to handle this without being insecure regarding our case.
July 18th, 2013 at 11:15 am
After reading this article and looking at it in retrospect I wonder how much Tamil Nadu played in the drafting of this 13th amendment back in 1987. The reason is that the details point to a thorough knowledge of the workings of the Sri Lankan people. Something that New Delhi would not be an expert but Jayalalithaa and the DMK to the AIDMK would have. I believe that this document was shoved down the throat of Sri Lanka as a precautionary measure in case Colombo won the war.
July 18th, 2013 at 1:16 pm
We think the 13-A’s (1987) main purpose then was to ‘divide Sri Lanka’ for purposes of the Cold War (1946-1991). During his period as President, JRJ was leaning westward, and India was with the Russian bloc. Hence the forced N&E merger etc. for Indian/Russian security.
Now matters have changed. Russia is now with NATO (joined in 1991 and intensified in 1994) and India is leaning westward. But we are still stuck with the 13-A and the new problems it is creating, among others with the Indian elections due next year and Delhi wooing Tamil Nadu via Colombo. Also Tamil Nadu attempting to solve their Caste/poverty problems via Sri Lanka with interested outside countries sniffing around. None of this is for Lanka’s benefit. Time to remove the 13-A and cut loose TN.
July 18th, 2013 at 1:30 pm
A bit more history :
J.N.Dixit was the Indian envoy in Colombo during that time the 13-A was imposed on Lanka. He was a Tamil man born in Chennai. He must have seen possibilities for Tamil Nadu expansion ambitions (earlier Dravidastan plans headed by TN) that were thwarted by PM Nehru through his anti secession laws. Dixit died of a heart attack at the time the Tsunami hit Lanka and the southern coast of India in Dec 1994, carrying away the Sea Tiger might as well as some ltte VIPs.
July 18th, 2013 at 1:58 pm
So JN Dickshit was a Tamil! That explains a lot.
July 18th, 2013 at 2:23 pm
We wish with all our Hearts that past matters are understood, forgiven and put aside between India & Sri Lanka, and confidence prevails on both sides now to allow the 13-A to be removed. Let ‘Satyameva Jayate’ win – Namaste, Mother India !
Tamil Nadu has to grow up and out of old and ancient negative socially bogged down ways. Rise TN, and follow the wonderful 4 Hindu Yogas – set your people free ! Let them know of a Plan and give them Hope.
July 18th, 2013 at 2:31 pm
Fran,
Reading the articles about RAW, I doubt very much AYTHING positive will EVER come from Endia.
Endia must be smashed into pieces of independent nations. We should DIVIDE Endia with the help of Pakistan and China. Then the pieces will fight each other leaving us alone. If one piece wants to fight against us, we can get help from another piece.
Have no hope on Endia. Hopeless.
July 18th, 2013 at 4:26 pm
Lorenzo,
Where fear & greed govern, there is no hope. Where populations listen to true Gurus and meditate, Hope arises, and Right Thought & Right Action happens more often. We must Hope that the true Gurus of India prevail.
July 18th, 2013 at 6:04 pm
Fran,
” Let them know of a Plan and give them Hope.”
Should not this be applicable to SL as well?. Or, do we have one already?. I do not think so. Look at the debacle of Norochchalai. The ministers and high officials are thinking of distribution of power only now, after building all three phases leaving the people to wonder whether our top officials (and ministers) work according to a plan on anything.
July 18th, 2013 at 6:39 pm
Aloy,
I am not well informed about what is happening re the Norochchalai plant. But, of course we should work on a Plan. That is why I have been suggesting that there ought to be a permanent Science Advisory Committe to advice the Parliament, not just GoSL. Then technical errors can be at least minimised or avoided.
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Lorenzo,
THEIR green & fear will affect US adversely.
July 19th, 2013 at 3:41 am
Greed & Fear everywhere will affect us adversely …..