In 1987 India illegally forced into the airspace of Sri Lanka and thereafter forced Sri Lanka to enter in to an Agreement or an Accord. An agreement , or an Accord is no different to a contract between two parties, whether it is between two persons, two Companies, or two Counties. It has to have essential basic requirements to bind the parties legally to the agreement. It should be voluntary. It should have one or more legal obligations to be performed by one party to the other. If any of the obligations is not performed by either one of the parties there would be a breach of the agreement and it could be rescinded without any legal effect.
India was from the beginning sympathetic towards the terrorists. They were trained by India and release in Sri Lanka to allow the Terrorists to form a separate Eelam State. The Indian Government has not denied the fact, as it cannot do so as there are enough evidence of their close involvements with the terrorists of Sri Lanka. In June,1987 when the terrorists were sieged in Jaffna and were about to be eliminated by the Operation Liberation of the Sri Lanka Armed Forces, India sent a convoy of armed battle ships to North of Sri Lanka for “humanitarian Assistant”. The Sri Lanka Navy intercepted the Indian convoy of armed ships and forced it to turn back.
India then decided to air drop of relief supplies to the terrorists besieged in Jaffna, and the Indian Minister of External Affairs K.Natwar Singh summoned the Sri Lanka Ambassador in New Delhi to inform of the India’s decision to air drop relief supplies to the terrorists, and had threatened if the Indian Operation was hindered in any way that “India would launch a full-force military retaliation against Sri Lanka”.
It was after that threat of the Indian External Affairs Minister K.Natwar Singh the militarily powerful India forced upon militarily powerless Sri Lanka to accept a Peace Accord on the understanding that Sri Lanka would not proceed with its military offensive against the terrorists. The Accord was not among equally powerful parties and was not voluntary on the Part of Sri Lanka.
Now the Pact entered into by JR Jayawardhana on behalf of Sri Lanka and Rajiv Gandhi on behalf Indian on the 29 July, 1987 was called Indo-Sri Lanka Peace Accord. It was an accord of necessity.
However the Indo-Sri Lanka Peace Accord was entered into on the acceptance by both parties, for India: (i) to resolve the on going terrorism, and (ii) to get the Tamil terrorists to surrender Arms and establish peace.
and for Sri Lanka, (i) to devolve power to the Provinces, and (ii) to withdraw its troops to their barracks.
The Sri Lanka readily performed its part of the Accord by introducing the13Amendment prepared and demanded by India to be included in the Constitution of Sri Lanka in terms of item (i) of its agreement under the Peace Accord to devolve power to the Provinces. Sri Lanka also withdrew its armies to the Barracks under item (ii) of its agreement under the Indo Sri Lanka Peace Accord.
That means Sri Lanka had performed its obligations under the Indo Lanka Peace Accord.
Now for this Peace Accord to be legally binding India had to performs the two items it had agreed to perform under the Pact.
Now to make the Indo-Sri Lanka Peace Accord legally binding on the two parties, India had to perform its part of the Agreement under the Peace accord to the satisfaction of Sri Lanka the second party to the Peace Accord, which was to (i) to resolve the on going terrorism.
Did India perform its part of the Agreement ?
No India failed in both counts, (i) to resolve the on going terrorism or, (ii) to get the terrorists to surrender their Arms. The terrorists initially agreed to surrender their arms, but later declared they will continue their struggle until they set up an independent Eelam State and refused to surrender Arms.
In 1990 the Indian Army left with 1155 of its cadre lost, without having performed either part of their agreement under the Indo Sri Lanka Peace Accord, leaving Sri Lanka which had already performed its part of the Agreement, with the terrorists problem more aggravated after the Indian intervention with its Indo-Sri Lanka Peace Accord. And to make matters worse with a 13 Amendment which Sri Lanka had included post haste in to the Constitution in good faith.
In ordinary circumstances as it would happen in an ordinary contract the Party to the Agreement or Contract who fails to perform his part of the contract is legally bound to pay compensation to the other party, who had in good faith performed his part of the contract.
But what is happening to-day with regard to the Indo Sri Lanka Peace Accord is not normal ?
India which is legally responsible for the breach of the Peace Accord still remains the Party that is dictating terms to Sri Lanka, which was made to suffer not only materially but with the deaths of tens of thousands of its youthful soldiers and even more wounded, and large numbers of dead and wounded civilians.
But India which lost only 1155 of its soldiers cannot demand any thing from Sri Lanka, sighting the Indo Sri Lanka which had been legally rescinded by India itself as a Party to the Peace Accord having failed to perform its part of the Accord.
Now it is for Sri Lanka to demand India to pay compensation, and India to accept that the India-Sri Lanka Peace Accord has failed and that Sri Lanka is not bound any more by the Peace Accord to respect the inclusion of the 13Amendment forced into the Constitution of Sri Lanka, which Sri Lanka had accepted to do in good faith, expecting India to honour its part of the Accord.
Sri Lanka political leadership now behaves like thieves who have been caught stealing some thing from India and indebted to it.
Sri Lanka has one thing to do , and that is to remove the 13Amendment without consulting or informing India as if Sri Lanka is a Vassal State of India.
There was no necessity for Sri Lanka to have sent the Minister Basil Rajapakse to India to inform India of its proposal to hold the PSC with regard to removing certain parts of the 13Amerndment and requesting that the TNA be requested to be a part of the PSC.
The removal or keeping of the 13 Amendment is a matter for Sri Lanka. The Indo Sri Lanka Pact through which the 13Amendment had been introduced has been rescinded by India’s failure to abide by its promise to perform its part of the Agreement. India-Sri Lanka Peace Accord has no legal value any more, no court would deny it.
It is the Sri Lanka Government Leadership that is keeping the Indo-Sri Lanka Peace Accord alive binding Sri Lanka to honour its pledge (which it had already done). It is India that has not honoured its pledge.
It is time that the President Mahinda Rajapakse awakens to that fact and go ahead with the removal of the 13 Amendment and be bold to face consequences. If the President cannot get the 13 Amendment Removed by PSC or using his executive powers, he should then go to the people, to have the 13 Amendment removed by a referendum of the people.
The Minister Basisl Rajapakse, the emissary of the President who was sent to inform the Indian Minister of External Affairs Salman Khurshid and the Indian National Security Adviser Shiv Sankar Menon that the Government of Sri Lanka is proposing small changes to the 13 Amendment, came back like a kicked dog lapping his wounds having achieved nothing and keeping mum about his visit.
Only thing Basil Rajapakse’s visit to India has done is that Sri Lanka has made giants of not only Salman Kurshid and Shiv Sankar Menon, but also TNA which is now asking the Government of Sri Lanka to confine the soldiers to their barracks. And the Government of Sri Lanka seems to be acting as if it cannot to do any thing without the assent of TNA.
It is a shame that Sri Lanka is unable to assert its right to do what it thinks is the best by its country and by its people. We are not at all indebted to India. India had always been an enemy of Sri Lanka and will continue to be so. It is only the President and his Government that seem to be assiduously licking the posterior of India.
It was reported that the the President Mahinda Rajapaksa had told visiting Indian National Security Adviser Shiv Shankar Menon, “……. that most of the points in the 13th Amendment will be implemented”. And , “…that there were issues in the clause dealing with land and police powers to the provinces and that needs to be addressed by the Parliament Select Committee.”The President had also requested Menon to “….Convince the TNA to join the Committee.”
Is it really necessary that India be informed that only small things in the 13Amendment will be removed ?
Why does not the President realise that we have nothing to ask India about what we are doing with our constitution ?
Does it really matter whether TNA joins the PSC or not ?
It is a Parliamentary requirement that every member of the Parliament should respect the Parliamentary procedures, if any member fails to respect those democratic Parliamentary procedures they are in breach of the constitution and should be impeached.
Basil Rajapakse’s visit to India to inform the affairs of our country to the Indian Leader Ship has only stirred a hornet’s nest. Only statement Basil Rajapakse had made since his return from India is that , “Some things can be said openly and some things cannot be said openly in diplomatic business between governments. They [India] gave us some of their views, we expressed our views. That is what usually happens .”
If that is any thing to go by, both the Government of Sri Lanka and that of India, share secrets of which the people are allowed only the right to guess hoping that such secrets are in their interest and that of the country.