SHOULD WE ACCEPT THE INDO-SRI LANKA ACCORD? IS THIS ACCORD LEGALLY BINDING AS A CONTRACT?
Posted on July 4th, 2009

Professor Sellakapu S Upasiri de Silva

Indo -Sri lanka Accord (agreement) was signed by the President of the Democratic Socialist Republic of Sri Lanka His Excellency Mr. J. R. Jayewardene and the Prime Minister of the Republic of India his Excellency Mr. Rajiv Gandhi in Colombo on July 29, 1987, to establish peace and normalcy by resolving the ethnic problem for the safety, wellbeing and prosperity of people belonging to all communities of Sri lanka.

The text of the Accord included the following statement to prove that this Accord is a contract agreement between the two parties: Have this day entered into the following agreement to fulfil the objectives.

If this agreement is to form a contract it should meet the following legal requirements for the contract to be a legally binding contract:

· Offer & Acceptance
· Consideration
· Capacity to Contract
· Consent of parties
· Intention

A contract is simply an agreement which is enforceable at law. To be enforceable it must be clear that the parties intended the agreement to be legally binding. They can only be established if the requisite intention to be bound can be established. The test of intension is objective. The courts look at what was agreed, the circumstances surrounding the agreement, the words used by the parties, the effect of the agreement on the parties and whether their subsequent action indicate a belief on their part that the agreement was binding. Depending on the type of agreement a presumption may arise that either the requisite intention was present or that it was not.

If this is a social and domestic agreement there is a rebuttable presumption of law that the parties did not intend their agreement to be legally binding.

If this agreement is a business or commercial agreement there is a rebuttable presumption of law that parties did intend to be legally bound by their agreement.

As the parties intended that this agreement intend to be legally bound then this agreement will come under the business or commercial agreement and the parties are intending this agreement to be legally binding. Now the million dollar question is, is this agreement (contract) legally binding? With business or commercial agreements the presumption can be rebutted by the person who alleges lack of contractual intention proving that the agreement was not intended to be contractual.

So we are in a legal dilemma here as this agreement (contract) has not met the Acceptance, Consideration, Consent of Parties and Intention. This agreement entered between the Government of Sri Lanka and the Government of India has not met these legal requirements, any court of law may declare this agreement null & void or illegal.

The government of Republic of India, according to documented evidence, has never consulted the President of the Democratic Socialist Republic of Sri lanka or the Government of the Democratic Socialist Republic of Sri lanka to get the “consent of the Government of Sri lanka” before formulating this contract. This contract agreement failed to meet the intention of this contract agreement to resolve the ethnic problem for the safety, wellbeing and prosperity of people belonging to all communities of Sri Lanka and never fulfilled by this contract agreement.

The Republic of India has used Military Force to change the Capacity to contract of the President of the Democratic Socialist Republic of Sri lanka and the signature to this contract agreement was obtained under undue force. As such this contract agreement has violated the entire requirement to make this a legal contract.

Leaving aside the basic requirement to form a legal contract this contract agreement has breach the following Clauses of the agreement and as such a Court of law will set aside this agreement as invalid.

Clause 1.1 Desiring to preserve the unity, sovereignty and territorial integrity of Sri Lanka.

This Clause 1.1 is breach by inserting the Clause 1.2, 1.3 and 1.4 as these three Clauses contradicts the desire of this contract agreement to preserve the unity, sovereignty and territorial integrity of Sri lanka.

Clause 1.2 acknowledging that Sri Lanka is a “multi-ethnic and multi-lingual plural society consisting, inter-alia, of Sinhalese, Tamils, Muslims (Moors) and Burgers. This statement in this Clause is defective at law as Sri Lanka is not a multi-ethnic and multi lingual plural society as the majority community is Sinhalese and the Sinhalese in Sri Lanka consists 74% of the total population. This agreement has overlooked this important factor in formulating this clause.

Clause 1.3 recognising that each ethnic group has a distinct cultural and linguistic identity, which has to be carefully nurtured. This statement in this Clause is defective at law as Sri Lanka need not to nurture the linguistic identity of other minor ethnic groups as they should assimilate with the majority Sinhala population of 74% of the entire population.

Clause 1.4 Also recognising that the Northern and the Eastern provinces have been areas of historical habitation of Sri Lankan Tamil speaking people, who have at all, times hitherto lived together in this territory with other ethnic groups. This Clause is misconstrued and mis -representing the true facts. How can 12% Tamil population claim 1/3 of the land mass as their historical habitation? As this Clause comes under the unilateral mistakes the contract will be void if this can be proved in a court of law.

Fundamental Breach

Fundamental breach is the failure by one party to perform a primary obligation under the contract so that the other party is deprived of substantially the whole  benefit that he or she was to have received under the contract.

There are few fundamental breaches in this contract agreement as the Republic of India has failed to meet the primary obligation they promised under this agreement to resolving the ethnic problem of Sri lanka. Democratic Socialist Republic of Sri Lanka resolve this problem after 22 years of signing this agreement and as such due to the effect of this mistake the contract is VOID if the mistake is sufficiently FUNDAMENTAL at Common Law. In Equity the contract, if not void, can be set aside.

Under Section 2 Clauses 2.1, 2.2 and 2.3 are creates common mistakes as all these facts included in these Clauses are fraudulent misrepresentations and as there was no proposal by the government of Sri Lanka to permit adjoining provinces to join to form one administrative unit.. It was a unilateral decision by the Republic of India.

Clause 2.3 to hold a referendum on or before 31st December 1988 never took place and as such this clause was breach.

The amalgamation of the North and the East under Cl. 2.2 was set aside by the High Court of Sri Lanka. As there was no referendum to get the consent of the people of  the East. This decision by the High Court, if requested by the litigants should have extended to the whole contract.

Furthermore as the Indo-Sri lanka accord failed to function as designed and the Indian Government failed to meet the Clause 2.16 (a), India will take all necessary steps to ensure that Indian Territory is not used for activities prejudicial to the unity, integrity and security of Sri Lanka.

As the Republic of India failed to provide and meet the requirements under Clause 2.16 (a), and the other Clauses 2.16 (b), 2.16 (c), 2.16 (d), 2.16 (e). This contract agreement is breach and the above Fundamental Breaches has created this contract to be Voidable (In Equity) .

In my opinion the legal validity of this Indo-Sri lanka Accord will be set aside by the High Court of Sri Lanka if contested and if the Indo-Sri lanka Accord is declared VOID then the validity of the inclusion of Amendment 13+ into the Constitution and the establishment of Provincial councils are questionable.

 

One Response to “SHOULD WE ACCEPT THE INDO-SRI LANKA ACCORD? IS THIS ACCORD LEGALLY BINDING AS A CONTRACT?”

  1. cassandra Says:

    It seems to me the points made are very valid. One of the most important factors to consider is whether the two parties entered into the agreement freely and without undue pressure or under duress. I believe this agreement will not stand up to that test. JR was coerced into signing the agreement, figuratively (and almost literally) with a gun held to his head. Secondly, the agreement, not having been implemented so far, has effectively lapsed. One could also argue the agreement has been frustrated by non compliance by India of the obligations it had undertaken, chiefly, the disarming of the LTTE. From a pragmatic viewpoint, what we need is something that recognises today’s realities – not the conditions obtaining in 1987.

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