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Limping devolution and Foreign Secretary Shringla

24 Oct 2021

By Austin Fernando   J.N. Dixit, Romesh Bhandari, G. Parthasarathy, and the only surviving P. Chidambaram et al. were names often heard during the days when power-sharing was discussed during the J.R. Jayewardene era. Now, they are replaced by Secretary Harsh Vardhan Shringla of the Ministry of External Affairs, India (MEA). Much enthusiasm was observed regarding the provincial council (PC) elections in Sri Lanka after Shringla’s recent visit.   Changed moods of the SL 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 a change of laws, and predicted PC elections in early 2022. Though Justice Minister Ali Sabry vowed the draft of the new constitution would be available before the end of 2021, now it may happen in 2022. If PC elections are held before this event, it surmises that the PCs are intact. Will they hold?   Mixed responses from politicians PCs had been implemented sans land and police powers but were weakened by the withdrawal of certain devolved powers, both structurally and resource-wise in application. Former President Mahinda Rajapaksa and Ministers Basil Rajapaksa and Prof. G.L. Peiris 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 that the 13A could not be implemented “against the wishes and feeling of the majority (Sinhala) community”. There are no antagonistic feelings against the 13A among the Sinhalese. Of course, there is criticism that PCs are white elephants. These days, worse criticisms are expressed about the Parliament, Executive, and bureaucracy, and I pray they would carry on regardless. However, the President informed Shringla that he must “look at weaknesses and strengths of 13A” (The Hindu, 3 October 2021). This would have been an appropriate “excuse” if made in Delhi, since he was in office for less than a fortnight then. Since Indians demanded this from his first meeting, this response, 22 months later, reflects his unpreparedness, commitment, and disinterest on a repeated demand, or else shows him holding other cards up his sleeves.   What to look for? One may recommend his advisors to study the 13A and reconciliation-related publications authored by eminent persons, such as J.N. Dixit, Jayadeva Uyangoda, Jayampathy Wickramaratne, Kumar Rupesinghe, Rohan Edirisinghe et al., published by respected institutions (e.g. the Centre for Policy Alternatives, Foundation for Co-Existence, and Berghof Foundation) and judicial review records (e.g. 13A Supreme Court Determination, Vasudeva Nanayakkara vs. K.N. Choksy, Maithripala Senanayaka vs. G.D. Mahindasoma, Divineguma Bill, many on land and administration, etc.) before briefing the President. They can obtain information from legal luminaries, university academia, and Viyathmaga/Eliya groups. Additionally, hansards, Lok Sabha proceedings, statements by Tamil groups, the MEA, and the Ministry of Foreign Affairs will broaden knowledge.   Reaching 13A Before agreeing or disagreeing on implementing the 13A, it is appropriate to understand the strenuousness and complexity of reaching it. It was not an over-the-counter business. Extensive pressures for power-sharing originated after Black July and consequent conflict, causing refugee migration, coupled with increased pressure on India by Sri Lankan and Tamil Nadu politicians. Indian leaders focused differently. For example, former Indian Prime Minister (PM) Rajiv Gandhi considered Palk Strait fisheries, restoration of peace and normalcy, return of refugees, and participation in economic activities as important. Though some alleged that Indians wished for Sri Lanka’s “separation” 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 former President Jayewardene invited India’s intervention for a solution (February 1985). For instance, the Tamil United Liberation Front (TULF) (on 1 December 1985) presented its representation to former PM Gandhi to achieve high-level power-sharing. Some important highlights were:
  •         Sri Lanka-“Ilankai” be a union of states
  •         Amalgamated Northern and Eastern Provinces, territory of which cannot be changed without its consent
  •         Parliament should be 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, inclusive of law and order, land, etc., with the State Assembly possessing law-making powers
  •         The State Assembly should be empowered to levy taxes, cess/fees, and mobilise loans/grants
  •         Special provisions for Indian Tamils
  •         The elected members to be given enhanced powers
  •         Upgrading the judicial system, e.g. Provincial High Court to Appeal Court
  •         Muslim rights cared for
The Jayewardene Government rejected the proposals. The TULF again addressed former PM Gandhi (on 17 January 1986), referring to the traditional homelands, demographic imbalance, etc. Former President Jayewardene steadfastly advocated a military solution and wished to return the Tamils and stop them from using Indian soil for violence against Sri Lanka. However, the raging conflict increased casualties and deaths, interpreted as “genocide”, by former MEA Minister B.R. Bhagat and several Lok Sabha members. Some Lok Sabha members demanded punitive interventions.
  1. 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 April 1985).”
  2. Gopalaswamy said: “I would also request the Government to undertake every possible means, including the military intervention to solve the problem (13 May 1986).” He referred to an Indian Government statement: “It shows the spineless cowardice approach of this Government (8 May 1987).”
Former PM Gandhi would have been mindful of this repeated ego-rupturing, demeaning criticism. He vented out frustration in Lok Sabha as well as when abroad (e.g. Harare). The criticisms projecting India/him as a weakling would have pressured him to be tough, which he did on 4 June 1987, by violating our air space. He would have been satisfied with the Government of Sri Lanka’s proposals of 9 July 1986, drafted after P. Chidambaram’s discussions. The proposals were to maintain Sri Lanka’s unity, sovereignty, integrity, and unitary nature, and implement it under the existing constitutional framework. There were annexes proposed as notes on PCs, law and order, land settlements, and the Mahaweli Project. While former PM Gandhi was frustrated by delays and inconsistency, former President Jayewardene was also facing a tricky situation, as explained by former Foreign Secretary A.P. Venkateswaran. His narration may explain why former President Jayewardene finally had to accommodate the 13A solution, for which he is mercilessly blamed. I quote: “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 Janata Vimukti Peramuna (JVP) from the South, and LTTE (Liberation Tigers of Tamil Eelam) forces from the North.” (Source: https://www.icwa.in/WriteReadData/RTF1984/1497424044.pdf) It appeared that the challenge for former President Jayewardene was between political life and death. The reactions to the proposal and the 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. Be reminded, they were in attendance (mid-November 1986) when former President Jayewardene was pleading for Indian assistance. A month later, on 19 December 1986, they submitted the “emerged” 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 Northern and Eastern PCs
  •         Government of Sri Lanka’s willingness to consider a proposal for second stage constitutional development for the two provinces
  •         Government of Sri Lanka’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 matters of mutual concern
The military operations continued irrespective of these communications and discussions. They provoked Indians, who knew from the horse’s mouth the vulnerable Sri Lankan status, from the quoted Bangalore meeting. Instead of requesting the implementation of the political option, Indians threatened on 9 February 1987 its withdrawal, unless Colombo pursued the political option. Withdrawal would have created a diplomatic faux pas. The potential support for political stability/existence would have been lost. Beggars couldn’t be choosers! Sri Lanka responded swiftly on 12 February 1987, focusing on the need for the Tigers to cease violence and promising military ceasing 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, following Indian good office, and discussions held so far (including the 18 December 1986 proposals). This also declared that the Government of Sri Lanka will not conduct operations against civilians. India gained, and space was created to ask for more.   India’s security first Security was, is, and will be crucial in dealing with India. I quote Lok Sabha Member Brajamohan Mohanty, who wished the Ceylon Government would not stand any negotiations with foreign countries to invite foreign forces. Member Mohanarangam (Lok Sabha 27 February) criticised Sri Lanka for inviting Americans, giving training, and former Pakistani President Zia Ul-Haq’s visit. Fear in Sri Lankans of Indians is also quoted in literature. When the British Cabinet delegation met former PM D.S. Senanayake, he had conveyed that he regarded the Indian problem as a danger, and therefore signed a military tie-up with the British. This was in 1948. The literature further endorses that India’s neighbours “should not seek to invite outside power(s). If any one of them needed any assistance, it should look to India. India’s attitude and relationship with her immediate neighbours depended on their appreciation of India’s regional security concerns; they would serve as buffer states in the event of an extra-regional threat and not proxies of the outside powers...” After 73 years, Indians remain unchanged, fears extremely enlarged. This attitude is reflected in the letters exchanged in 1987.   Additional benefits to India While the implementation of the agreement is clarified in one annexure, the “exchange of letters” (not an annexure) is concerned with security and economic benefits for India. In former PM Rajiv Gandhi’s exchanged letter, reference is made to “the agreement reached”. Former President Jayewardene’s response mentions “the understanding reached”. Wording confuses the legal status, thus requiring interpretation. However, the contents of the exchanged letters, like broadcasting stations, ports, or airports, are serious security concerns to India. The oil tanks being serviced by the Trincomalee Port will be of much anxiety for India. One may criticise that the content in the letters exchanged were larger (i.e. of economy and security) than Sri Lanka’s political and military issues in the agreement. Former PM Gandhi would have been fishing in murky waters, especially after the aforementioned Bangalore meeting.   Flashback to 1986 from 2021 Looking back to 1987, I quote a speech by Bharatiya Janata Party (BJP) stalwart Jaswant Singh. (Lok Sabha 13 May 1986). He posed seven questions based on Sri Lankan responses. I view them as relevant even today. They were:
  1. What is the Indian stand in the debate on devolution and delegation?
  2. Where do India and Sri Lanka stand on the amalgamation of the Northern and Eastern Provinces?
  3. What is the stand on land use by the Indian Government, the Government of Sri Lanka, and the Tamil groups?
  4. What is the status of the language?
  5. What is the stand on law and order?
  6. What is the time frame for reaching a solution?
  7. What is the Indian Government’s stand on the foreign threats emerging in the context of the Sri Lankan issues?
Had he lived today, as a former jawan (soldier), he would either join P. Kulandaivelu and V. Gopalaswamy et al. demanding military action, or question PM Narendra Modi and Minister S. Jaishankar about Indian inefficiency/ineffectiveness on non-implementation. After 35 years, the status in response to Singh is:
  •         Devolution is “paralysed” by the partial implementation of 13A and delayed elections
  •         The amalgamation of provinces shelved judicially disfavouring India
  •         The land power-sharing issue is in India’s disfavour by Sri Lanka’s rejection
  •         The language issue is constitutionally solved but partially failed in its implementation
  •         Sri Lanka has disfavoured Indians by rejecting the law and order issue
  •         Timeframe for a solution is abstract, even after crushing the Tigers 12 years ago
  •         Foreign threats have heavily increased in India’s disfavour
The background scenarios/environments have changed in six major ways:
  •         No military operations in the North and East
  •         Ceasing violence and power-sharing as a remedy was the demand then. Now, ceasing violence for peace is redundant. The interest is human rights and humanitarian violations, returning refugees, and reconciliation. The validity of 13A for these is low
  •         Interventions were limited to India then; now, it has spread internationally
  •         The Tamil demands were circulating mostly between the TULF and India, whereas the consequences of the Diaspora’s lobbying had created negative results
  •         Other than to gain politically in Tamil Nadu because the BJP is weak there, the Modi Government had much bigger stakes to focus on, i.e. Chinese expansionism, economic competition, Indo-Pacific and Indian Ocean Alliances, etc.
  •         The BJP has alternatives to win the Government of Sri Lanka, e.g. Kushinagar aviation, a $ 15 million grant for Buddhist affairs, financial swap deals, etc.
  Following in veteran’s footsteps Based on Jaswant Singh’s queries and emerging situations, instead of pursuing the 35-year-old demand, will not a new power-sharing approach pay richer dividends? For India, in the present geopolitical context, the exchanged letter causes more to gain than the 13A or the agreement. Former President Jayewardene strategised by vacillating until 13A finally happened. President Gotabaya Rajapaksa, a military strategist, must be emulating political veteran former President Jayewardene on a different learning curve, i.e. from Sun Tzu who said: “In war, practise dissimulation, and you will succeed.” I believe the President’s terminology – “must look at” plusses and minuses of 13A – is a pretence to vacillate. If Shringla gauged this behaviour correctly, he may be having the last laugh, as his goal is to gain from the exchanged letters (e.g. Trincomalee oil tanks, ports, aviation, etc.), simultaneously pleasing Tamil Nadu and Sri Lanka Tamil groups with temporary soothing.   What is in store? Sri Lanka won the conflict in 2009, but still, devolutionary ends anticipated in 1987 are yet to be achieved. Prabhakaran was unhappy and felt he was tricked, and took revenge. The successive governments have not pursued devolution and tricked all PCs by weakening fiscal devolution, withdrawing PC powers, not supporting statute-making and upgrading human resources, etc. The incumbent Government has conflicting views in the alliance on PCs. Therefore, Shringla’s “full implementation of 13A” demand may wait in the queue. Of course, probably the PC elections demand will be respected. This time, soothing is being done from Colombo to Delhi, Chennai, and Jaffna. Since the war had not resolved the issues, what remains from Shringla’s demand equates to what Shri Rajeev Gandhi said in the Lok Sabha (4 March 1987.) “We know that no ethnic problem such as this has a military solution.” War victory and peace efforts have not relieved the affected. The tool (13A) has failed to succeed with and without war. Therefore, PM Modi, Jaishankar, and Shringla can repeat former PM Gandhi’s quote to President Gotabaya Rajapaksa – 35 years later! What was considered appropriate during the war must be adjusted for peace times, but should reinforce nation-building, with equality, dignity, justice, self-respect, and inclusivity confirmed through a political process. In that exercise, India may do well if she keeps in mind what Meera Srinivasan stated recently and adjust to change the southern Sinhala mindset, which is the main thrust of the incumbent Government. I quote: “Despite India’s known support to the Mahinda Rajapaksa administration in defeating the LTTE in 2009, sections among the Sri Lankan southern population remain India-sceptics, wary of the big neighbour who ‘interfered’ in Sri Lanka’s ethnic conflict, ‘sided with Tamils’. They resist India’s commenting on power devolution or conduct of elections to provincial councils in Sri Lanka and oppose any Indian role in developing ‘national assets’.” (Source: The Hindu, 18 October 2021) I believe both countries have commenced action with financial swapping, air travel facilitation to Kushinagar, and PM Modi committing $ 15 million for Buddhist affairs. However, it appears that prioritising Sri Lankan national asset management or PCs may create conflicts. It happened with the East Container Terminal (ECT) project, and probably similar interference may be embryonically brewing from certain quarters even against the West Container Terminal (WCT) project, proving Srinivasan right. Anyway, time is a great healer. Mahinda Rajapaksa, the Yahapalana, and the incumbent have wasted 12 years after wiping off the conflict. A glimpse of what has been achieved in politics in the Rajiv-Jayewardene agreement, as well in the economic and security activities in the exchanged letters, are proof of failed performance. From Bhandari to Shringla, and Rajeev Gandhi to Narendra Modi, India also has been limping in the political and economic processes, losing the anticipated speed. Hence, fulfilling the aspirations is left in store, challenging all stakeholders. Good luck to Ministers Jaishankar and Prof. Peiris, Secretaries Shringla and Prof. Jayanath Colombage, and High Commissioners Gopal Baglay and Milinda Moragoda.   (The writer is a former High Commissioner of Sri Lanka in India)


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