PEACE MONITOR
Peace Monitor is a newsletter of the Centre for Policy Alternatives (CPA). The CPA was formed in the firm belief that the civil society contribution to public policy debate is vital and in need of strengthening. In fulfillment of its mandate, CPA focuses on issues of governance and conflict resolution through programmes of research and advocacy. Published since early 2002 as “Saama Kathaa” Peace Monitor is one of the many ways by which CPA seeks to foster and monitor dialogue on key current issues in Sri Lanka. Saama Vimarshi and Saamathana Nokku are parallel Sinhala and Tamil publications. The views expressed here do not necessarily reflect the views of the CPA or its board of directors.
Contact information: The Editors Peace Monitor c/o Outreach Unit Centre for Policy Alternatives No 105, 5th Lane, Colombo 3, Sri Lanka
Tel: 0112565302 Fax: 0114714460 E-mail: [email protected]/[email protected] Web: www.cpalanka.org
Published Date : September 2013
Publication : Volume 10 / Issue 2
Printed By : Globe Printing Works - 0777 315971
Cover Photographs : from www. epdpnews.com and www.uktamilnews.com (front) and skyscrapercity.com, Daily Mirror Graphics Desk (back Cover)
While every effort has been made to attribute all articles and photographs to their correct sources/owners, in the event that we have made a mistake or omission, please accept our sincere apologies and the assurance that we will make special mention in the next issue. PEACE MONITOR Volume 10 / Issue 2 September 2013
CONTENTS
SUSTAINING CONFLICT THROUGH THE DEVOLUTION OPTIONS FOR PROCRASTINATING ON THE 13TH DEBATE 3 AMENDMENT 42 DR P. SARAVANAMUTTU GOMIN DAYASRI
13TH AMENDMENT : A LESSON FROM CONFUCIUS 6 THE POLITICS OF THE 13TH AMENDMENT AND PROF JAYANTHA SENIVIRATNE ELECTION TO THE NORTHERN PROVINCIAL COUNCIL:
THE CONSEQUENCES OF POLITICAL REPRESENTATION THE STAKES INVOLVED - PERSPECTIVE FROM THE LEFT OR THE LACK OF IT 9 46 DR DEVANESAN NESIAH SURENDRA AJIT RUPASINGHE
NORTHERN PROVINCIAL COUNCIL: PRUDENCE PREVAILS GENDER ISSUES IN CONSTITUTIONAL REFORM: A FOR NOW 11 REVIEW OF THE REPUBLIC AT 40 50 DR DAYAN JAYATILLEKA KUMUDINI SAMUEL
ROVINCIAL OUNCILS ARE HITE LEPHANTS HAT P C W E T THE APRC: A FORGOTTEN RESOLUTION 54 MUST GO TOGETHER WITH THE 13TH AMENDMENT 18 AMITA ARUDPRAGASAM S L GUNASEKARA CELEBRATORY MEMOIRS OF THE LIFE OF COMRADE NORTHERN PROVINCIAL COUNCIL ELECTION: GOOD SUNILA ABEYSEKERA 58 GOVERNANCE AND WOMEN’S REPRESENTATION 21 LIONEL BOPAGE WOMENS ACTION NETWORK STATEMENT ON RELIGIOUS VIOLENCE 62 NO STARTING POINT TO RESOLUTION 25 CENTRE FOR POLICY ALTERNATIVES KUMARAVADIVEL GURUPARAN STATEMENT ON THE VIOLENCE IN WELIWERIA 64 RADICAL UNP AND ITS NEW CONSTITUTIONAL CENTRE FOR POLICY ALTERNATIVES PROPOSALS: A RADICAL FARCE? 28 KALANA SENARATNE CASE DECISIONS ON LAND POWERS - SEPTEMBER 26TH 2013 66 13TH AMENDMENT AND THE EASTERN MUSLIMS 32 SUPREME COURT OF THE DEMOCRATIC SOCIALIST MOHAMED FASLAN REPUBLIC OF SRI LANKA INTERVIEW WITH CHANDRIKA BANDARANAIKE NPC ELECTIONS PRE ELECTION SURVEY 82 KUMARATUNGA 34 SOCIAL INDICATOR, CPA LIONEL GURUGE
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SUSTAINING CONFLICT THROUGH THE DEVOLUTION DEBATE
DR. PAIKIASOTHY SARAVANAMUTTU
Devolution and the Thirteenth Amendment are once more at the centre of political debate. This stems from a number of factors – the most obvious being the first Northern Provincial Council election scheduled for the 21 September 2013. Other factors relevant to the current debate and its outcome are the outcome of the election and the integrity of the electoral process through which it is conducted, international and particularly By the same token, a Northern Provin- Indian pressure to ensure non-dilution of the cial Council controlled by the TNA as is existing constitutional provisions on widely expected by most commenta- devolution on the one hand and on the other, tors, will have its work cut out for it, the determination of those elements within the navigating the receding political waters ruling coalition to reduce provincial of devolution, the everyday livelihood devolution to an empty shell if not get rid of it needs of its constituency and the deter- altogether. The latter arises from the strong mined attempts of the Sinhala right to implicit belief of the government that a portray it as unreasonably and irrel- political solution is not necessary – military evantly obsessed with the politics of victory and centralized economic development grievance. are seen as paving the path to peace, prosperity, reconciliation and unity, on government terms.
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At the heart of the anti-devolutionists’ argument is the contention that national unity would be jeopardized, if the northern provincial council – their fears are really only about this council- were to exercise the constitutionally provided police and land powers. The president and his brothers in government plus a host of ideological fellow travellers insist that this could be the thin edge of the wedge, a posthumous political victory for the LTTE, which would pave the way for secession. It should be noted that the Supreme Court affirmed that the provincial devolution proposed was consistent with the unitary status of the state. In any event, the balance of powers in respect of provincial devolution is heavily weighted in favour of the centre – a power configuration upheld by the courts over the last twenty- five years. Furthermore, the provisions on land and police powers are not obstructive of central government authority or power and are capped – unless of course it is deemed that any form of consultation with a provincial government is beneath the dignity of the centre and injurious to its power and authority.
In the above respects, the anti- devolutionary position that stretches from gutting the Thirteenth Amendment to outright abolition – is primarily ideological. This is not surprising. The Rajapaksha regime has consistently demonstrated that the political education of its leadership and standard bearers was formed and concluded on these matters some forty years ago with the passage of the first republican constitution enshrining the unitary state, the official language provision and “foremost place” to Buddhism. The fear about secession at this point, real or imagined in their minds, is more about control of the state and its resources than it is about an imminent danger of it breaking up. A regime, which needs an “other” to consolidate its grip on power, has a vested interest in trumpeting the defeat of the “other” – be it a group or an idea –whilst at the same time maintaining that the return of the “other” in some shape or form, will always be a real and present danger. The fear about secession at this point, real or Accordingly, the Thirteenth Amendment has always been a imagined in their minds, prime target of the current dispensation. They have cleverly is more about control of managed to move debate from a rhetorical position on a the state and its re- political settlement they nicknamed Thirteen Plus, to dilution sources than it is about and abolition of the Thirteenth Amendment, whilst all the time an imminent danger of it maintaining a status quo of Thirteen Minus – land and police breaking up. powers have never been devolved- and systematically working to chip away at the devolved powers through whole scale land grabbing to the Town and Country Planning Act to Divineguma.
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combined – especially the latter – to put the devolution debate on hold.
It will return. The LTTE bogey and the military victory are still the best things going for the regime in http://www.chogm 2013.lk http://www.chogm domestic political terms. Abolishing the Thirteenth Amendment or amending it to the point of extinction, is therefore the unfinished political business of the
Preparing for CHOGM military defeat of the LTTE. And the best way to do it and probably the most likely point for deliberations and The reaction to the latter in would be its inclusion in an not the subject of debate. In the Supreme Court clearly election manifesto for a seems to have served as the this respect, the regime has presidential election that catalyst for the impeachment shifted the goal posts. Put could take place hot on the of Chief Justice another way – it is rather like heels of the CHOGM - in the Bandaranayake. playing cards with a cheat! first quarter of next year, There is now a parliamentary Currently the “apeyaanduwa” perhaps? This would give the select committee to look into - pun intended - reaction to regime the popular mandate a political settlement. It is devolution has been halted in it needs to tell India and made up solely of SLFP its tracks; it has by no means whoever else that the Sri members- no Tissa Vitharna been abandoned. The Lankan electorate does not of APRC fame and no Rauff mention of the Northern want devolution and in a Hakeem either. The Provincial Council election in functioning democracy the committee is to look at the the March 2013 resolution at will of the electorate must be Thirteenth Amendment. the UN Human Rights Council heeded. When the parliamentary (UNHRC), a presidential Were this to be the case it select committee was first commitment to the Japanese would also be the case that mooted to the TNA, at a point government that it would he the conflict will remain. So it at which the direct talks held and the danger in will as long as the regime between them and the regime particular that were this not sees domestic political were going nowhere since to be the case and/or the advantage in this, however the regime was unwilling or Thirteenth Amendment short- sighted. By the same unable to put its proposals on further amended, Indian token, a Northern Provincial the table, the Thirteenth pressure could be exerted to Amendment was not the relocate the November 2013 Council controlled by the TNA issue. The understanding was Colombo Commonwealth as is widely expected by most that the committee would go Heads of Government commentators, will have its beyond it. It was the starting Meeting (CHOGM), all work cut out for it, navigating the receding political waters of devolution, the everyday livelihood needs of its Centre for Policy Alternatives 5 constituency and the determined attempts of the PEACE MONITOR Volume 10 / Issue 2 September 2013
13TH AMENDMENT: A LESSON FROM CONFUCIUS
PROF. JAYANTHA SENEVIRATNE
Today, when we see the false Leader to provide the answer. and shallow discourse woven He obliged by saying the around the 13th Amendment question that was asked was to the Constitution, one incorrect. In order to deter- recalls the wisdom of mine as to what makes us Confucius, the 5th century human, the question that Chinese thinker and religious ought be asked is ‘What is it leader, and his famous dia- that makes us become inhu- logues with students. man? ‘What are the factors that Confucius in this particular make us Human ? His follow- Dialogue explained that we ers queried a student - become inhuman when we Confucius responded by rob the personal dignity of encouraging the students another. Fliching a person’s The people in the North themselves to seek the are now undergoing dignity is tantamount to answer. One student said that stealing a person’s humanity. unbearable pressure. It is ‘ we are human since we not even possible to There are two aspects of speak a language’. Another personal dignity. Physical as fathom their economic, said because we build houses well as spiritual well being. social and mental deg- and use different kinds of radation. Along with transport. ‘ Because of man’s Physical well-being means this, the most danger- shallow pretenses’, ‘we are the basic needs necessary for ous consequence is the human because of the jeal- a person’s life. It includes depth to which Sri ousy, deceit, arrogance, and food, clothing, habitat and Lankan society has lust that lies within us’ said security. Spiritual well-being morally sunk to. other students. When means the freedom to enjoy Confucius insisted that none the right to adhere to one’s of these qualities made us own religious doctrine and human, they requested the profess one’s culture, as well
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as the freedom to think and and mental travails express one’s ideas. one is compelled to undergo today. We As we view the current must be aware that debate, we see that the Sri even if the Tamil Lankan Tamil populace too populace in the are demanding that their North is in a situa- stolen dignity, be restored to tion to do so, it is at them. Who robbed them thus? I know that this ques- least due to the tion that should not be asked implementation of http://newscenter.sdsu.edu once again. Anyone with a the 13th Amend- conscience knows this. ment to the Consti- Although the physical well- tution. being of the Tamil people In 1987, when the cannot be confined a mere 13th Amendment matter of survival, sadly the was being intro- Wisdom from the 5th Century people of the North have duced to the Second Republi- been compelled to live in can Constitution, we gave it such a manner and yet are our total support probably ing to the rights of the people engaged in an unrelenting because at that moment, it struggle to somehow pre- was resolved with a political was the possible ‘political solution devoid of such serve their spiritual well- solution’, aimed at the physi- international pressure. being. As Oscar Wilde ob- cal and spiritual well being of served, “...we are all in the the Tamil people. Whatever This becomes relevant even gutter, but some of us are be the demerits of that today. Despite the fact that looking at the stars...” He was Amendment, it was a coura- the 13th Amendment was possibly referring to the fact geous and viable step for- introduced within a constitu- that the person had in his/ ward, which was adopted to tional framework with a her possession, the power to powerful Executive and solve the ethnic issue. That it think and to dream, which paved the way for intensely was introduced in the cannot be taken away by centralized, authoritarian greater interest of India, is another. If one can, at least rule, and although when no secret. Personally I am h a v e hope for a devolution was appended happy that at least such a bright tomor- onto such harsh centralized solution was brought about row, a rule, it became contradictory. at that time since the Sri person It was indeed a novel experi- Lankan politicians were can bear ence for Sri Lankan politics. unable to offer their own the Following that Amendment, solution to this burning physi- we know that every govern- issue. Moreover, it was cal ment that came into power because of such an interven- since has utilized the Concur- tion, that the opportunity rent List as a powerful was provided both for the weapon against devolution politicians, as well the and also for the teaching of a people in this country to lesson to the Tamil people. think and act in a different This government is one, ‘the soul of manner, regarding such an which does not accept the a country, is important question. There is concept of the devolution of visible only if the rulers have the trust of no country in the world, power. Thus they do respect
all those who live in it’. where such an issue, pertain- either the Concurrent List, or
confucius-sinarum http://ricci.bc.edu/books/
Centre for Policy Alternatives 7 PEACE MONITOR Volume 10 / Issue 2 September 2013 the Provincial List. We also tion of the post of Executive especially in a context where know that, in order to place President to the 1978 Consti- the state has no longer a obstacles in the way of imple- tution, and the 13th Amend- military foe, the government mentation of the 13th ment in 1978, the concept of should ensure the coexist- Amendment, the present the Supremacy of Parliament ence of all communities and government is utilizing the was dissolved and diluted. initiate a political legal framework incorporated Similarly, it was said that programme which seeks to in that Amendment, in a far with the introduction of the accede to the desires of all. more diabolical manner than 18th Amendment, Executive Today the government can which was visible in the power reached its zenith. once again win over the political machinations Today’s Parliament is one hearts of the Tamil people, followed by the Premadasa which acts as per the whims only through fully implement- government. In addition, the of the Executive. In this ing the 13th Amendment. If government is engaged in context, the 13th Amendment steps are taken to rescind reversing the culture that still remains the only consti- that Amendment, the gov- socialized devolution as a tutional protection for the ernment is paving the way civilized political phenom- minorities. Although it has once again for a dark future. enon, and which it now seeks only but limited possibilities Abolishing that Amendment to relegate to the lexicon of to satisfy the aspirations of is allowing separatist ambi- dirty words. This is not all. An the Tamil people for some tions to prevail once more. In anti-Indian campaign has measure of Provincial Au- the words of Confucius, ‘the now commenced, as in the tonomy, currently it becomes soul of a country, is visible days of Premadasa. It is the only way , which would in only if the rulers have the indeed a matter of deep some measure, enhance their trust of all those who live in regret that the Malwatte and physical and spiritual well- it’. If such trust is forthcom- Asgiriya prelates have also being. If this Amendment is ing from the people, it is fallen prey to such projects. removed from the Constitu- possible for the state to even At that time, in the face of the tion, it would result in the ably conduct itself in the Premadasa anti - Indian peaking of Sinhala-Buddhist region , devoid of threats. campaign, there was only the ethnic dominance. It is also Trust can be built only if the support of Pakistan in the unnecessary to repeat that It people are free. In a society, region, and the present was such dominance which which is governed by a government now has also led the state to a war. Today, it military hand, the people live drawn China to its side. has almost become impos- in fear and trepidation. We sible for us to recover from cannot forget that for almost It is not necessary to state the cruelty that was sown in 40 years, the people in the that , since the dawn of our society in that 30 year North were living under a Independence in this country, war. The people in the North two -fold military spectre. no honest attempt was made are now undergoing unbear- The time has come to end to devolve Executive power, able pressure. It is not even this. The physical and spiri- but instead only the strength- possible to fathom their tual aspirations of the Tamil ening of the Executive really economic, social and mental people should be assured prevailed. Even during the degradation. Along with this, once more, which would era when Parliament was the most dangerous conse- surely result in the well- Supreme, there were shrewd quence is the depth to which being of the entire state. agendas to strengthen the Sri Lankan society has Executive, which culminated The full enactment of the morally sunk to. with the 1972 Constitution. 13th Amendment will ensure However, with the introduc- In a post- conflict society, this.
8 Centre for Policy Alternatives PEACE MONITOR Volume 10 / Issue 2 September 2013 THE CONSEQUENCES OF POLITICAL REPRESENTATION
www.colombotelegraph.com OR THE LACK THEREOF
BY DR. DEVANESAN NESIAH
The Northern Provincial Elections may be held in September 2013. I will elaborate on the likely consequences of representation, or the lack of it, drawing on past experience in Sri Lanka, India and the USA.
All over Sri Lanka the bulk of the Muslim population are Tamil speakers. It was so almost 100% at every socio- economic level when the Official Language Act was enacted in 1956. But at that time the political leader ship of the Muslims were mostly Members of Parliament representing Sinhalese majority electorates. All these voted for Sinhala only, as desired by their mostly Sinhalese voters, even though they were themselves Tamil speaking. The Muslim MP’s represent- ing Eastern Province electorates voted against the Bill, as desired by their voters, nearly all of them Tamil speaking. In the Senate, AMA Azeez, who was not elected by Sinha- lese voters, not only opposed the Bill but quit his party on this issue. One of the objectives in forming the SLMC, much later, under the leadership of Ashroff, based in the Eastern Province, was to ensure the election of Muslim MPs responsive to the wishes of the Muslim population. In India, the Dalits / Harijan /Untouchables and Tribals have enjoyed quota reservations in political bodies and public institutions at all levels for close to a century. The practice had been that the reserved seats had been rotated from election to election with only Dalits standing for elections in the seats reserved for them. In the 1930s, about the same time as the Donoughmore Commission in Sri Lanka, a dispute arose between the Dalit leader Dr.B.Ambedkar and Mahatma Gandhi as to whether electorates should hitherto be purely territorial or whether Dalits should have separate electoral registers.
Gandhi wanted the former, and Ambedkar the latter, but sundayobserver.lk there was no dispute regarding the need for reservations. Lord Donoughmore
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Under Gandhi’s proposal Black majority but he had even in electorates for ensured that, as in most Dalits, the majority of the Southern states, most of the voters would be non- Dalits. Blacks were denied voting Dr.Ambedkar argued that rights on some pretext or the Dalit candidates would the other, such as illiteracy. then tailor their manifestos The Whites all over the to suit the majority non- South were fearful of being Dalit voters. In fact Dalit swamped by Blacks if they candidates seeking High gained voting rights. His Caste Hindu votes would 1962 campaign slogan was, often stand respectfully “From the cradle of the outside the house, declining Confederacy, this very heart any invitation to enter the of the great Anglo- Saxon house or to sit on a chair or Southland … Segregation to accept a cup of tea. Such now! Segregation tomor- practices helped to win High row! Segregation forever! Caste votes. Dr. Ambedkar He bitterly and violently wanted Dalit candidate to opposed the Voting Rights adopt radical manifestos for Act, but when he found that 100% Dalit electorates. The he could not stop it, he did a British Colonial Government U-turn on many issues. He suspended progress towards there after supported many independence till this issue Black causes because his was solved. Gandhi started a vote base was now more fast to death and was close Black than White, though he to death when Ambedkar remained as racist as ever. caved in, and agreed to Hopefully the NPC elections purely territorial electorates Hopefully the NPC elec- will not only bring about with both Dalit and Non- tions will not only bring changes in the administra- Dalit voters in exchange for about changes in the tion of the Northern Prov- increased quotas for Dalits. administration of the ince, but also compel Co- It is this compromise that Northern Province, but lombo to take into account was embodied in the Indian also compel Colombo to the NPC leadership, which Constitution drafted two take into account the may be why these elections decades later under the NPC leadership, which have been long delayed. The Chairmanship of may be why these elec- elections and their likely Dr.Ambedkar. tions have been long outcome will surely have a delayed. The elections In the USA, Governor positive impact on the and their likely outcome Wallace of Alabama, perhaps politics of Colombo and also will surely have a posi- the most racist of the South- on National Reconciliation. tive impact on the poli- ern leaders, had Presidential Article source: tics of Colombo and also ambitions. His state was on National Reconcilia- Groundviews.lk tion
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Volume 10 / Issue 2 September 2013 Photo source : transcurrents.com : source Photo THE NORTHERN PROVINCIAL COUNCIL: PRUDENCE PREVAILS FOR NOW
DR. DAYAN JAYATILLEKA Finally, a pragmatic percep- ignores the President’s tion, however episodic, of important visits to Japan and reality– and a prudent policy China, two Asian powers and move results. With President traditional friends of Sri Rajapaksa’s decision to Lanka, and the assessment of announce the holding of the Sri Lanka’s overall economic election to the Northern and strategic-diplomatic Provincial Council after situation that Mahinda almost a quarter of a century Rajapaksa, the experienced (taken together with the re- and shrewdly pragmatic arrest of the suspects in the political animal that he is, murder of the Trinco 5), Sri would have made subsequent Lanka seems about to take a to those visits. significant step in the right Crucial to that assessment direction; the next logical would have been the interna- step forward – deferred tional factor; the issue of imprudently for four years– devolution and the Northern after the victory over separat- provincial council seen in its ist terrorism in May 2009. international dimension. While conventional wisdom President Rajapaksa bought has it that the imminence of as much time as he could for the Commonwealth summit those in his camp who and the signalling from India wished to consolidate in the are the main factors behind ground in the North in a the President’s decision, my political vacuum. He seems own explanation is that this aware that time and space
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Volume 10 / Issue 2 September 2013 Photo source http//www.np.gov.lk source Photo
Northern PC Governer and Douglas Devananda
are running out, that the risk for a Hassan Rowhani or war Sri Lanka. of non-implementation would Nawaz Sharif option. be prohibitive; that Sri Lanka The target of all strategy, says would lack the economic and More optimistically, he could Sun Tzu, is the mind of the diplomatic capacity for the also be weighing the possi- opposing commander. How- siege that would result not bilities of a different role, ever, those waging the battle only from the unilateral profile and pathway for both against the holding of the redrawing of an inherited, Sri Lanka and himself, with Northern provincial council uneven bilateral agreement the assumption of the Com- election are targeting not the but also the non-fulfilment of monwealth chairpersonship. opposing commander, but the post - war international mind of the commander-in The process of the holding of chief, President Rajapaksa. commitments far more freely the election is fraught, entered into, coming as it did There is a contest of political though. A battle is raging at wills, and an arm-wrestling after the Sri Lankan military the heart of the state. It is a victory at the apogee of the match has been underway to battle over the Northern sway the President’s decision achievement of the Sri provincial council elections, Lankan state. to hold the election in Sep- the continued existence of tember 2013. th President Rajapaksa knows as the 13 amendment (cer- the hawks in his camp do not, tainly in its present form), It is against this backdrop that the economic conse- and relations between Sri that we must locate trends in quences of a Cold war with Lanka and the world (espe- the state media. The state-run the neighbour and the larger cially India), but taken as a media are the mirror or world community would prise totality it is nothing less than sensor of trends and shifting open as nothing else would, a battle over the future direc- power balances in the state the politico-electoral space tion and destination of post- itself. The preponderant
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ideology in and of the state July 5th 2013) media enable us to trace the pathways and production So, for HLD Mahindapala and hubs of that ideology while his co-thinkers, while there is indicating the networks that an issue facing the nation and traverse the state appara- the President, the lead is tuses. Consider then a recent being given on this all-impor- article by Mr HLD tant political question by Mr Mahindapala, prominent and Gotabhaya Rajapaksa. What is prolix ideologue of the Sinhala more striking is his assertion supremacist expatriate that “Gotabhaya Rajapaksa network. He has a well de- has taken the first step served reputation for telling decisive step in redrawing the it as he sees it. While this may road map to the future.” not always be the same as Thus the lead is being given telling it like it is, this time and what is more, the first his perception and the po- step towards redrawing the litico-ideological actuality roadmap to the future is coincide. He writes in the being taken not by the elected penultimate segment of his executive President, a politi- most recent polemic as cian with four decades experi- follows: ence, but by a highly placed “The issue facing the nation unelected official, however — and, of course, the Presi- competent in his field of dent — is whether to per- experience and expertise, petuate the illegally imposed namely military affairs and injustice on the nation or not. their management. If “the Gotabhaya Rajapaksa has road map to the future is given the courageous lead in being redrawn”, the question rejecting the 13th Amend- arises, who drew the original ment in toto…There isn’t a roadmap to the future which A battle is raging at the single vestige in the Indo- is being re-drawn by the heart of the state. It is a Lanka Agreement, whether in highly competent official? battle over the Northern its origins, its imposition or in Furthermore, from where provincial council elec- its legacy, that makes it a and when did the mandate tions, the continued benign or acceptable formula derive by which any unelected th for all the peoples Sri Lanka official can take the lead on a existence of the 13 political and diplomatic amendment (certainly in to come together. It is an Indian solution to an Indian question and go further to re- its present form), and problem. It is divisive, corro- draw the roadmap to the relations between Sri sive and destructive. It has future? Lanka and the world never been nor will it ever be What, in Mr Mahindapala’s (especially India), but the solution. The time has rendition is that lead that has taken as a totality it is come to jump out of the box been taken? It is “rejecting nothing less than a and re-imagine a new future. the 13th amendment in toto”. Gotabhaya Rajapaksa has battle over the future Nowhere has the country’s taken the first step decisive direction and destination elected President and Com- step in redrawing the road of post-war Sri Lanka. mander-in chief rejected the map to the future.” (‘Marxists 13th amendment in toto. He are like Indians’, Daily News, has just demonstrated con-
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East there must be the same percentage of the majority community. When 78% of this country comprises Sinhalese how does such a vast landmass in the North become 98% Tamil. Isn’t this unnatural? This was forced. Natural growth was prevented.” “…No I don’t believe in devolu- tion because of the above
Photo by Ishara S.Kodikara/AFP/Getty Images S.Kodikara/AFP/Getty Ishara by Photo points I mentioned. If devolu- A Sri Lankan army trooper patrols the island's northern town of Jaffna tion is for administrative spicuously that he entertains purposes that is of course a rather different view, legitimate. But if one thinks perhaps not out of conviction that devolution would provide but an accurate perception of an answer to the national larger realities, including the problem that is something that economic. An important facet I don’t agree with…I think of that economic reality is that’s [the complete repealing best glimpsed in the recent of the 13th amendment] the news story ‘Japan Overtakes way forward…” China as Largest Lender to “This again I see as a reaction Lanka’ (Daily Mirror, July 5, to some of the claims and 2013). things done by the minorities. The Mahindapala rendition is We shouldn’t let these things given some credibility by the come out. Remember the interview ( Daily Mirror, July majority community is 78% 4, 2013) given by the Secre- but if some 8% or 10% of the tary to the Ministry of De- community tries to bring fence and Urban Develop- various issues all the time it ment, in which devolution is creates a suspicion among the rejected, there seems to be a majority community. It creates preference for the national insecurity within the majority ethnic ratios to be reflected in community and obviously the Northern province, the there will be sections reacting BBS is but a reaction to over- to that. This is what hap- assertion by minorities, pened…” (‘I Deplore Any Form criminals are to be treated as of Extremism’, Daily Mirror terrorists, and the Sri Lankan July 4, 2013) Tamil issue is pretty much Mr Gotabhaya Rajapaksa’s said to be none of our interview constitutes a useful neighbour’s concern. The discourse in that it is possible following quotes from the to discern the socio-political interview provide a micro- map of Sri Lanka after it has cosm of the perspective and been ‘re-drawn’ (as HLD paradigm: Mahindapala puts it). “…It is nothing but true and What this ideology corre- correct that in the North and sponds to is the dangerous
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phenomenon identified by further…a regional perspective the late Fred Halliday, Profes- is inescapable given the sub- sor Emeritus of International continental cultural matrix and Relations at the London history. At a time when national School of Economics and borders are vanishing, the research professor at the borders in our own minds need Barcelona Institute of Inter- to be erased in the interest of national Studies. He defined it serious inquiry and discussion”. as ‘The Miscalculations of (‘Crisis Commentaries’, 2001: P. Small Nations’. His case 170) studies included Georgia and more classically Cyprus and The hubris of having defeated he explores “the self-inflating the LTTE must not delude us nationalist ideology…with its into thinking that we won a heady mix of vanity, presump- war against the source of the tion and Indo-Lanka Accord. We must miscalculation…miscalculations recognise the limits of our about the capabilities of one’s victory. We must also recognise own forces and the reactions the limits of our power. We of others”. (‘Political Journeys’ must understand that however 2011, p 241-247) excellent our armed forces are and in whatever way we seek Since the emphasis in Sri to configure their presence in Lanka is on the rejection of the North, while attempting to the foreign and the celebra- re-configure the North itself, in tion of the national, and since a worst case scenario, which is a touch of retroactive intellec- not purely imaginary but is an tual nepotism will not be extrapolation of our 1987 frowned upon, the volume experience, we cannot ensure ‘Crisis Commentaries: Se- supplies of ammunition, fuel lected Political Writings of and food, for our island which Mervyn de Silva’, which is highly vulnerable to naval contains his attempts to embargo and a no-fly zone. I educate National Security would also recommend that Minister Lalith the militant Sinhala ultrana- Athulathmudali on the abid- tionalists read the famous ing geopolitical realities that ‘Melian Dialogue’ in should disabuse us of the Thucydides’ ‘History of the notion that we can emulate Peloponnesian Wars’. It is the The hubris of having Israel in our treatment of the exchange between the leaders defeated the LTTE must Tamils of the North. of the small, strategically not delude us into think- placed island of Melos and the ing that we won a war Mervyn remarks “…It was the Athenian envoys who made against the source of the presence of Tamil Nadu, the them an offer they shouldn’t south Indian state, which have refused but did, with Indo-Lanka Accord. We forced us to broaden the must recognise the limits disastrous consequences. That discussion and our exchange is regarded as para- of our victory. We must perspective…if the arrival of a also recognise the limits digmatic by the Realist school 60,000 strong Indian peace in politics, history and interna- of our power. keeping force did nothing else, tional affairs. it certainly did compel us to widen the range of inquiry Article source: Groundviews.lk
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Volume 10 / Issue 2 September 2013 www.nation.lk
PROVINCIAL COUNCILS ARE WHITE ELEPHANTS THAT MUST GO TOGETHER WITH THE 13TH AMENDMENT
BY S. L. GUNASEKARA
Sri Lanka has been plagued by Provincial Councils. (PCs) for the past 24 years. The debate about whether the 13th Amendment which gave birth to these Provincial Councils should remain or not, continues and has now gained some momentum with Though India has acted proposals being made by persons who are supposedly influen- and continues to act as tial that it should be repealed. the ‘Regional Thug’, the Indo-Lanka Accord is a What is interesting to note in the ongoing debate is that hardly dead letter and no longer anything that is said on either side has changed in any signifi- of any force or avail if cant manner despite the bitter experience we have had with ever it was. One of the these ‘White Elephants’. primary obligations of The proponents of PCs continue to say with a smug purported India according to that righteousness that the PSC provide for the devolution of power Accord was to ensure that to the people; that scrapping them would be a retrograde step all terrorist groups were which would deprive the minorities of any ‘say’ in governance; disarmed within 120 that India is watching closely and is very anxious that the PCs hours of the signing should remain; and that those who propose the abolition of PCs thereof. Accordingly, the are Sinhala supremacists or chauvinists who seek to deny the LTTE ought to have been minorities their rights disarmed by August 3, On the other hand some opponents of the 13th Amendment 1987. continue to say that continued existence of PCs would pave the way for a the creation of separate state in that they establish the
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Volume 10 / Issue 2 September 2013 Dominic Sansoni/ThreeBlindMen Dominic
Monk seated on the ground surrounded by tear gas. Pettah bus stand, Colombo, 28th July 1987. Protest at the signing of the Indo Lanka Peace Accord. infrastructure therefore and as they were before, what- the party of his choice or for accuse those who support the ever their respective race, none. In short his views do PC system of being unpatri- ethnicity, religion or political not matter, and he is com- otic and of being supporters affiliation may be pelled to subordinate his of the LTTE and separation. views for those of the party. An examination of our expe- The tragedy that is evident in riences of PCs will show that Even a candidate has no right this debate is that neither the people of any province to even hand in his own party which has issued are not given the opportunity nomination paper to the statements appears to have of even nominating those Returning Officer. That right drawn on our experiences of whom they want to see is preserved by law for a PCs and founded any argu- guiding their destinies in party official who may or may ment thereon. respect of the devolved not choose to ‘tippex’ the subjects for election, but that name of such candidate from One significant fact that the only right they are given the list and replace it with appears to have eluded both is to select the party they another prior to handing it parties in this debate is that support, and to mark their over to the Returning Officer! far from ensuring or securing preferences for persons the devolution of power to the named in the list of persons The fact that nomination people, the 13th Amendment whom that party has pur- boards of various parties are and the PCs have only re- ported to believe to be the often comprised senior sulted in conferring benefits most suitable persons to be officials of such parties and do on political parties, their PC members. not even comprise persons leaders, supporters and their from the branches of such kith and kin and that the The voter must therefore cast parties in the relevant prov- people at large or of any a preference vote either for inces, and that those who particular segment thereof the candidate whom he purport to be the leaders of are as bereft of power in the considers to be the ‘best’ or the several political parties management of their affairs ‘least bad’ of those selected by often enter into ‘horse deals’
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pertaining to alliances of to that Accord was to ensure convenience with other that all terrorist groups were parties without any kind of disarmed within 120 hours of reference to the people of the the signing thereof. area and/or getting their consent makes manifest the Accordingly, the LTTE ought fact that no devolution of to have been disarmed by power of whatever nature to August 3, 1987. the people has been achieved However, they were com- by this obnoxious PC system. pletely disarmed by our All that the PC system has Armed Forces and not by achieved is to further India only by about May 18/ politicise our society and give 19, 2009. Thus, India which to political parties and their trained and armed the terror- ‘leaders’ more opportunities of ists; India which foisted on advancing the fortunes of Sri Lanka the PC system with their otherwise unemployable its attendant unbearable kith and kin, supporters, waste of public funds; India hangers on, sycophants at the which prevented Sri Lanka expense of the long suffering from destroying the Tigers public. and thereby paved the way for the deaths and mutilations As regards India’s interest in of tens of thousands of our the maintenance of the PCs, a citizens, has reneged on its fact that is invariably ignored most fundamental obligation by those who speak inces- under the Accord and hence santly of India’s stake in the repudiated it over 25 years matter is that India has no ago. stake in the matter. The question of whether we retain Our 24 years experience of PCs or not is a matter that PCs has shown that they only effects the internal gover- benefited the politicians, nance of this country and the their kith and kin, their people and is hence entirely a supporters and consequently Thus, all these parties matter for us. the various political parties like the parties with of our land at colossal ex- Sinhalese majorities are It is true that the birth of the pense to the long suffering engaged in politics only PCs was a result of the Indo- people. The mad scramble for for their own benefit and Lanka Accord which was seats in PCs, the colossal the PCs provide the forced upon our people by amounts of money spent by opportunity to enrich India together with the then candidates to win elections, themselves at the cost UNP government. Though the number of senior politi- India has acted and continues cians’ kith and kin striving for and expense of the pub- to act as the ‘Regional Thug’, office and the fact that they lic and to enhance their the Indo-Lanka Accord is a even resort to violence to win powers. That is all that dead letter and no longer of provide manifest proof of these PCs have achieved. any force or avail if ever it who and who alone are was. One of the primary benefited from this system. obligations of India according It would indeed be worth a
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Volume 10 / Issue 2 September 2013 Photo source: The Hindu The source: Photo
Prime Minister Rajiv Gandhi and Sri Lankan President J.R. Jayewardene sign the historic Indo-Sri Lanka accord in Colombo on July 29, 1987. study to ascertain facts such e) the quantum of public and more concerned about as: funds spent on trips the people than the Sinhalese abroad for Provincial politicians. They are, to my a) the quantum of public Councillors and mind, all alike. funds spent on Provin- cial Councils for the f) the quantum of public Starting with the Tamil past 24 years including funds actually spent on National Alliance (TNA) the sums spent on the welfare of the which is evidently the most elections; public. popular party among the Tamils, it is self evident that b) the quantum of public A proper study would show its members have not cared funds spent on provid- that most of the money that one whit for the welfare of ing salaries and perqui- could have been spent on the the Tamil people. It was they sites of office to Provin- welfare of the people has who recognised the LTTE as cial Councillors; been expended on rubbish being the “Sole Representa- such as extravagant lifestyles c) the quantum of public tives of the Tamil People” and for Provincial Councillors, funds spent on putting stood idly by, raising not a their kith and kin etc. up buildings for PCs; whimper of protest when the It may well be argued that Tigers kidnapped Tamil d) the quantum of public such statistics that are avail- children, murdered abducted funds spent on the able relate to provinces with and imprisoned Tamil adults personal staff of Provin- Sinhala majorities and not to and extorted their hard and cial Councillors and the provinces with Tamil and/or money from them. number of members of Muslim majorities. However, the staff of Provincial They have even been so base there is no evidence whatso- Councillors who are as to remain totally silent ever to indicate that the kith and kin of the about the outrageous thefts of Tamil or Muslim politicians Provincial Councillors the means of livelihood of would be more responsible themselves; Tamil fishermen by the
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fishermen of Tamil Nadu been to themselves and to no placed on their supposed invading the rich fishing other. Thus, when veteran rights and liberties. grounds off the Northern and Tamil politician V. The Muslim politicians have Eastern coasts our land and Anandasangaree who had been no better. The Sri Lanka stealing the fish that would turned against the LTTE was Muslim Congress which first otherwise have formed the prevented from campaigning supported Sirimavo ‘catch’ and hence the liveli- or even casting his vote at the Bandaranaike, then President hood of so many of our Tamil elections of 2000 the TNA Premadasa, then Chandrika fishermen. remained mum; similarly Kumaratunga, then Ranil On the other hand TNA when TNA members were Wickremesinghe and has members have done well for assaulted by the EPDP and now come back to Mahinda themselves from the suffering other political parties which Rajapaksa with attendant of the Tamil people. It would were finally opposed to the benefits to themselves has be remembered that the TNA LTTE, the leadership of those proved itself in no uncertain terms to be nothing short of a delayed to nominate a person parties remained mum; and political prostitute. Many to the Parliamentary Select by the same token when SLMC MPs have deserted Committee which is probing members of the EPDP and their party and been bought the charges against the other parties such as EPRLF over by the Chief on the ground that Government most of its MPs were abroad. with portfolios. How were the TNA MPs able to be abroad? Thus, all these parties like the Did they go with their own parties with funds or were they spon- Sinhalese ma- sored, and if so by whom? jorities are Clearly they would not have engaged in been able to visit foreign politics only for countries as often as they do their own but for the fact that they are benefit and the PCs provide the MPs of that party and opportunity to purported to represent the Cartoon from DailyFT.lk enrich them- Tamil people. This perhaps selves at the provides one reason why the cost and expense of the TNA has refrained from which were against the LTTE public and to enhance their making any comments or were murdered by the LTTE powers. That is all that these observations on behalf of the the TNA remained mum. PCs have achieved. Tamil people with regard to the inhuman crimes commit- They who spout so much Thus, even assuming without ted by the LTTE or the Indian about democracy and the rule conceding that Provincial fishermen. of law have, in the ultimate Councils will not pave the analysis, acted on the basis way for separation, our It is also significant to ob- that the suppression on the experience with these white serve that like the disgusting democratic rights of their elephants for 24 years clearly Sinhalese politicians, the opponents is good and proper proves that they, together loyalty of the members of and that all that is wrong is with the 13th Amendment Tamil political parties has any kind of limitation being must go.
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THE NORTHERN PROVINCIAL COUNCIL ELECTION: GOOD GOVERNANCE AND WOMEN’S REPRESENTATION
BY THE WOMENS ACTION NETWORK
The merged North-Eastern Provincial Council invalid. Hence the merged provincial structure was an administrative unit that came into was demerged in 2006. Subsequently elections being and existed as a structure in Sri Lankan have been held in 2008 and 2012 for the administration. Consequent to the 1987 Indo- Eastern Provincial Council. Lanka Accord and the enactment of the 13th Amendment to the 1978 Sri Lankan Constitu- Provincial council elections are to take place in tion a degree of devolution was granted to the the North for the first time since 1988. The provinces. In terms of the Provincial Councils minority communities that have suffered Act No. 42 of 1987 the Northern and Eastern through the war and experienced multiple Councils were merged to form as one provin- displacements and loss of life and resources cial council to function thereof. The first are looking forward to this upcoming election. election to the said merged N-E Province was This election is considered an opportunity by held on the 10th December 1988 and Mr. the Tamils who have suffered great loss of life Annamalai Varadaraja Perumal was chosen as and property and also by the Muslim commu- its Chief Minister. The elected council was nity who were evicted forcibly by the LTTE and functional until Mr. Varadaraja Perumal chose had to bear the label of refugees for over 20 to allegedly declare a Unilateral Declaration of years. Both communities feel that this election Independence of the N-E Provincial Council into an independent State upon which the said Provincial Council was dissolved by the centre and the administration was brought under direct control of the centre by the then Presi- dent Ranasinghe Premadasa. There were no elections held for the said provincial council thereafter until 2006. However, the Council as a Provincial Administrative Unit continued to
function minus elected representatives until http://www.telegraph.co.uk/AP the year 2006 under the Governor. The Su- preme Court in a judgment delivered in 2006
in cases filed by the Janatha Vimukthi Photo source source Photo Peramuna against the merger of the two A Sri Lankan ethnic Tamil woman shows her identity cards before cast- provinces declared the said merger to be ing their vote at an election polling booth at Vavuniya
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recent times. The attacks on places of worship that belong to minority communities bring into question the right of religious freedom en- shrined in the Constitution of Sri Lanka. Reli- gious extremism and patriarchy have worked hand in hand to curtail women from their rights and freedom to choose their attire and reproductive function. The creation of allegedly Buddhist religious groups that use violence and propaganda to take away other religious communities’ rights in the post war context has created great fear in the minds of Tamil and Muslim women. During her recent visit the
U.N. High Commissioner for Human Rights http://passionparade.blogspot.com Photo by Dushiyanthini Kanagasabapathipillai / Kanagasabapathipillai Dushiyanthini by Photo Navaneetham Pillai stated that she is deeply TNA Candidate Ananthy Sasitharan faced unprecedented concerned that Sri Lanka, despite the opportu- violence while contesting in an election for the first time nity provided by the end of the war to construct a new vibrant, all-embracing state, is showing signs of heading in an increasingly authoritar- will provide them a space to protect their ian direction. rights. At a time when racism and religious extremism In this period, which is termed the develop- are gaining momentum in Sri Lanka. the ment and post war phase, demands for northern provincial council elections should be women’s rights and women’s access to develop- viewed as a space for women to garner demo- ment and services have seen very little cratic support and political legitimacy. As progress. Attention needs to be paid with citizens of this country women have the right regard to violence against women and young to practice democracy and create democratic girls which has seen a drastic rise in the last spaces. Gender equality, women’s civil and few “post-war” years. Women who have lived political rights, women’s right to employment, in the north and east have suffered the conse- freedom from violence, political, social and quences of the war and also the ethnic conflict cultural rights of women can only be ensured and communal polarization. There have been when there is a vibrant and healthy democratic planned steps taken to dilute democracy. structure in place. Human rights violations have been taking place In the upcoming elections there are a few openly through the militarization of the north. women candidates as well. It must be noted Due to this military entry to every possible civil that 13 women candidates are standing for structure several incidents of gross human elections as independent candidates. The party rights violations have taken place. In in power, the UFPA, and the opposition parties Weliweriya the demand for clean water and the such as TNA and the UNP have provided very prevention of the pollution of ground water. led few opportunities for women to stand for to the shooting of peaceful protesters by the elections. As usual when candidates were given Military and a 16 year old student became the nominations by these parties only a very few first recent victim of the military in the south. women were considered. Even some of the The use of the military to quell dissent is parties have publicly acknowledged that the symbolic of the state of democracy in Sri majority of Vanni voters are women and that Lanka. they have special needs and in need of assis- tance and protections etc., the main political The right of every citizen in Sri Lanka to follow parties have not come forward to promote his/her religion has also come under attack in women’s political participation and leadership.
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Volume 10 / Issue 2 September 2013
flickr/PassionParade Photo by Dushiyanthini Kanagasabapathipillai ~ via ~ Kanagasabapathipillai Dushiyanthini by Photo
A woman supporter pasting posters in Koovil, Jaffna District
Even though a large number of families are women participating, society and political headed by women the promotion of women’s parties placed several obstacles and demands economic and political rights as equal to men on us. There was the war due to which we has not been advanced by these political could not mingle with the community. It was in parties. Democracy requires that all communi- such a context that I stood for elections. Even ties are represented in the political process so when you look at the LTTE which had been as to ensure the wellbeing of a nation. How- considering having progressive view of women ever in Sri Lanka democracy continues to be there were several limitations and women had majoritarian be it in race or sex. to follow the orders of these leaders, who were all men. Even in that space women’s opinions We will have to wait and see what these could not be freely expressed. Even in India, women candidates’ future steps will be. How- where I had gone to due to the war I was not ever most of these candidates have suffered allowed to express my views freely. Due to great losses due to the war and are clear that threats and fear several of my writings were no one, especially no women should suffer the destroyed. same kind of loss ever again. These women’s participation in the elections asserts that Elaborating further on women’s participation democracy and rights need to be protected. in politics, Sritharan states that ‘women must enter politics, they must become decision Mrs. Gnanasakthi Sritharan who is contesting makers. Women’s representation in political under the UFPA banner states that 25 years structures must increase, that is my primary ago when elections took place she was the only aim. Secondly I wish to further equality be- female member, ‘as a woman I faced several tween men and women in social economic and challenges and threats. I had to go into hiding cultural spheres. Only then can a society grow. and was also forced to leave the country for my There are over 40,000 female headed house- safety. 25 years later I still see that there is a holds. Many of them are still suffering psycho- lacuna when it comes to women candidates.” logically due to their losses. There is a need to Narrating her experience she says that there build their economic independence. There is were several obstacles for women to express also a need to integrate affected women with their opinions. Family members objected to
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the rest of society. There is a need for society’s acceptance and support of former women cadres and women who have lost their husbands. There is a need for us to ensure their protection and development.” Mrs. Ananthi Sasitharan who is standing under the TNA banner states that “there are several reasons I am standing for elections. I wish to ensure justice for the families whose loved ones surrendered to the government
and have now gone missing; I also wish to site Flickr http://passionparade.blogspot.com/ ensure speedy trials and release of several A woman supporter of Gnanasakthy Sritharan pasting posters in Koovil, Tamil political prisoners who have been Jaffna District ~ Picture by Dushiyanthini Kanagasabapathipillai ~ via languishing in detention centers for several flickr/PassionParade years. I want to take steps to ensure that violence against women and young girls is ploy to appropriate women’s resources such as prevented and that women should be able to land, water, jungles and other natural re- live their life with dignity and enjoy the rights sources. Due to this teenage pregnancy, child provided to us. This is why I am standing for marriages, rape and sexual abuse, poverty elections. I also hope through this opportunity I induced sex work, unequal treatment and will be able to raise the issues we have faced as abuse of women, economic dependence have a minority community at the national level and risen. find solutions for the same. And in instances where solutions for our problems cannot be Women have shown that when in positions of found locally I wish to take them to the interna- power they have taken decisions wisely and tional community. My victory in this election shy away from corrupt practices and have will provide me the space to do these things. provided solutions for many problems faced by Even though the powers of the provincial society. To date women have supported the council have been diluted it is important for us victory of men in elections. It is important that to show the world our victory in these elec- men too support women to win the upcoming tions as several women have come forward to elections, as women bring their experiences ensure that women’s rights are in the forefront and struggles and have the potential to lay the of this post war phase. Women are choosing groundwork for a vibrant and healthy democ- the democratic method to win their rights. racy. However yet again women are given very few There have been few reported acts of violence spaces to stand in these elections. against women candidates at this election and In the current context women are the primary we condemn these acts while saluting the income earners in the family. Poverty has been bravery of these women candidates, wishing imposed on women through several actions. for their victory and looking forward to their Women’s opinions are not being counted in entry into the Northern Provincial Council. developmental activities and women have Women’s Action Network is a collective of eight faced several disadvantages and detrimental women’s groups in the North and East of Sri outcomes due to these developmental mea- Lanka. sures. Due to poverty women are forced to work in sectors that are unsafe, have no mini- Article source: Groundviews.lk mum/equal wage or job security and have no legal protection. Development is used as to
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NO STARTING POINT TO RESOLUTION
Photo source: Author Twitter account Twitter Author source: Photo BY KUMARAVADIVEL GURUPARAN
The Northern Provincial Council (NPC) Buddhist nationalism to take hold. As the election is expected to take place later this calls for the 13th Amendment to be re- year. Colombo is entertaining hopes that pealed or amended into nothing grow, holding the elections will help win India’s President Rajapaksa’s stance appears support in multilateral venues. New Delhi increasingly duplicitous – silently encour- has made the 13th Amendment to the Sri aging the anti-13th Amendment hysteria, Lankan Constitution – a by-product of the while distancing himself from it to appear 1987 Indo-Lanka Accord – the centrepiece presentable to India and the West. For now, of a political solution. he seems to have shelved plans to dilute the 13th Amendment. The Indo-Lanka Accord purportedly ad- dresses the Tamil issue but most impor- Nevertheless, as Minister for Economic tantly for India, also contains important Development, Basil Rajapaksa’s recent provisions on security-related matters interview to The Hindu (‘Cannot risk a between the two States. Safeguarding the parallel Army in North: Basil’, 19 July 2013) 13th Amendment in some form is impor- confirms, Colombo has not given up totally tant to keep the Indo-Lanka Accord alive. on this goal – presumably, the 13th Amend- The Sri Lankan Government has been ment will be watered down after the NPC playing the ‘China card’ to lessen pressure election. Given the state of the judiciary in from India. New Delhi returned the favour Sri Lanka, following the impeachment of by its qualified support to the two US- the Chief Justice of the Supreme Court in sponsored resolutions on Sri Lanka at the January 2013, as well as the two-thirds UN Human Rights Council (UNHRC) in majority Rajapaksa enjoys in Parliament, March 2012 and March 2013. there seems to be no significant challenge to passing these amendments post elec- SHOW OF NATIONALISM tions. While some left leaning parties in President Mahinda Rajapaksa would have Rajapaksa’s coalition and the Sri Lanka liked to amend the 13th Amendment Muslim Congress (SLMC) have asserted before the NPC election, but has no option that they will not support any such move, but to leave it untouched, thanks to pres- these critics have previously proved them- sure exerted by India. Nonetheless, India’s selves to be politically amenable. For India, breathing down Colombo’s neck is allowing the NPC election being held without any for a more strident expression of Sinhala amendments to the 13th Amendment will
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suffice. the Provincial Council list but is also a subject in the concurrent list. The concur- The Tamil people have been reduced to rent list incorporates all that is crucial for mere spectators in this powwow between the immediate reconstruction of the liveli- the two governments. No one has asked the hood of the war-affected population, in- Tamil people what they stand to gain by cluding fisheries, agriculture, social ser- holding the Northern Provincial Council vices, and employment planning at the election or more widely, with the 13th provincial level. On top of all Amendment. this, there is the unconstitu- TAMIL CONCERNS tional, illegal Presidential The Tamil people Task Force, which has to The 13th Amendment is no have been approve every single develop- starting point to a political reduced to mere mental programme carried solution. It sits within a out in the North. As it is, the highly inflexible unitary spectators in this 13th Amendment has been State framework. The Gover- powwow between further weakened by succes- nor of the Province, a Presi- the two sive governments through dential appointee, must unilateral Central Govern- consent to any Bill that has governments. No ment legislation and execu- financial consequences and one has asked tive fiat. can delay legislation brought before the provincial coun- them what they Up to the end of the armed cil under the pretext of stand to gain by conflict, Tamils have consis- unconstitutionality. He/she holding the tently rejected the 13th has plenary powers (ap- Amendment – not only the pointment, dismissal and Northern LTTE, but also the Tamil transfer powers) over the Provincial Council United Liberation Front Provincial Public Service. election or more (TULF) which had initially State land alienation, prime been engaged in a dialogue among Tamil concerns, widely, with the with Prime Minister Rajiv continues to be vested 13th Amendment. Gandhi regarding its contents. almost exclusively with the Poignantly, at that time, the President. Most policing TULF asserted that Sri Lanka powers remain retained for the National did not show the final version of the 13th Police. Meanwhile, appointments to the Amendment to India before it was pre- Provincial Police Service will be strictly sented to Parliament. controlled by the Central Government. PART OF THE TRIO Even the appointment of the Deputy In- Current Leader of the Tamil National spector General of Police of the Province – Alliance (TNA), R. Sampanthan, was part of in the eventuality that the Chief Minister the trio who represented the TULF, in the and the IGP fail to reach a consensus – TULF-Rajiv Gandhi talks. becomes a matter for the President. Cru- cially, issues relating to the developmental The TNA is under pressure from India to and livelihood needs of the Tamil people accept a solution based on the 13th are not ‘devolved’ to the Provincial Coun- Amendment, and does not want to be seen cils. For example, ‘planning’ is mentioned in as rejecting something that President
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Volume 10 / Issue 2 September 2013 Photo source: npc.gov.lk source: Photo
Northern Province Governor meeting with the NPC
Rajapaksa is reluctant to offer. As a result, What then is the future of the 13th Amend- Tamil representatives are engaged in a ment? The more prudent sections of the Sri futile battle with those who call for it to be Lankan Government are likely to prevail repealed, to save whatever little is left in and the amendment, in some form or the the 13th Amendment. It is a wholly non- other, will be retained. However, it is prob- sensical debate: Those who want to repeal able that the Government after the North- the 13th Amendment argue, quite mislead- ern Provincial Council election may try to ingly, that it significantly devolves land and remove the symbolic references in the police powers to the provinces. They also 13th Amendment that create the impres- call for Parliament to be stripped of its sion of granting land and police powers to powers to enable a merger of the North the province; and make a merger of the and Eastern Provinces – when even the North and East a legal impossibility. India main Opposition Party (the United Na- may object to such measures: but in the tional Party) is against such a move. Just as midst of all this hysteria, any attempt misleading are attempts by those cam- towards finding a genuine political solu- paigning for the 13th Amendment, includ- tion will be lost. ing India and the TNA, to convey to the (Kumaravadivel Guruparan is a lecturer in Tamil people that it is a good starting point law at the University of Jaffna. This article to a political solution. was originally published in “The Hindu”)
Centre for Policy Alternatives 27 PEACE MONITOR Volume 10 / Issue 2 September 2013 RADICAL UNP AND ITS NEW CONSTITUTIONAL PROPOSALS: A RADICAL
FARCE? Photo source: www.colombotelegraph.com source: Photo BY KALANA SENARATNE
When regimes are dictatorial ‘radical change’ before Exec. and dangerous, alternative Comm”, Sri Lanka Mirror, 12 Oct forces which promise a better 2012). What transpired on society and future do tend to be further inspection was that the taken seriously by the people. UNP’s promise of radicalism This, quite simply, is because was firstly to keep Mr. Ranil the future promised by such Wickremasinghe as its leader. alternative forces tends to be This ‘radicalism’ was followed better than the present. But by Mr. Sajith Premadasa’s own one thing many people can’t do brand of radicalism when he about the present UNP is to recently admitted (on the take it seriously. The UNP’s Derana 360 programme) that new constitutional proposals/ his attempt to oust Mr. principles – which it claims will Wickremasinghe may have shape and form the new been a bit premature. constitution it hopes to place So it is this ‘radical’ UNP that before the people once elected now comes up with a docu- to power – tell us why this is ment promising a more demo- the case (see, ‘UNP draft cratic country. But even before proposal for new constitution’, you proceed to the end of the The Island, 30 May 2013). Preamble of the document, it When regimes are Apart from a few grand prom- begins to appear why the dictatorial and ises, the UNP’s guiding consti- grand promise of the UNP dangerous, tutional principles are gener- amounts to yet another grand ally known to the people and farce. alternative forces can be easily found, stated in different words, in the 1978 For example, the UNP begins which promise a Constitution. by stating that: “During the last better society and several years under Mahinda The new set of constitutional Rajapaksa’s regime, the office future do tend to be principles and proposals needs of Executive President has taken seriously by the to be viewed in the context of been completely desecrated, by people. the grand promise of radical destroying all the checks and transformation of party and balances that were built into polity which the UNP started the system.” The UNP also making sometime ago; a states that the “dignity and ‘radical change’ (see “UNP’s integrity of that office has been
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Volume 10 / Issue 2 September 2013 Photo source http://www.ft.lk source Photo
Ranil presenting the Republican Constitution proposal, May 2013
reduced to a despicable state…” radically changing the current and palpable restructuring of constitutional framework. So the State and its policies While it is true that the incum- the UNP begins its discourse towards religion, devolution, bent has done much to des- by glorifying the very thing etc. Without such changes, ecrate the office of Executive that it seeks to reform/abol- there will only be symbolic President (and much more), ish. And the internal contradic- changes, a different set of what is alarming here is the tion becomes clear. And words and phrases to explain implication of the statement: furthermore, what was that the post of ‘Executive Presi- i.e. the UNP believes that the statement made recently by dent’. Executive Presidential system the likes of Mr. Wijedasa that the UNP introduced was That the UNP is nowhere near Rajapaksa that the Executive actually one which had a lot of of promising such a radical Presidency will not be abol- checks and balances. In other transformation becomes very ished but be reformed? (see words, the UNP’s alleged clear when one observes its ‘Video: UNP says no abolishing radical programme begins by principles concerning ‘Restora- of Executive Presidency’, Daily justifying the 1978 Constitu- tion of the People’s Sover- Mirror, 16 May 2013). tion as well as the Executive eignty’ and ‘Devolution of Presidential system in particu- Apart from such total confu- Powers’. lar, which it promises (some- sion, it is also to be noted that So, for example, the UNP states what dubiously) to abolish. It any call for the abolition of the that: “Buddhism will be given constructs the idea that there Executive Presidency, has to be the foremost place while was a ‘pure’ form of Executive accompanied by a serious and assuring the rights of all other Presidency and a ‘pure’ 1978 radical transformation of a religions in compliance with Constitution which the number of fundamental the International Covenant on Rajapaksa-regime has now principles and policies under- Civil and Political Rights desecrated. This is reason lying the current constitution. (ICCPR).” But what’s the enough to make anyone The abolition of the Executive difference between this prom- cynical about the UNP’s Presidency will not mean ise and the current constitu- promise of abolishing the much, and cannot take place, tional provision on Buddhism Executive Presidency or without a more meaningful (Article 9 of the current Consti-
Centre for Policy Alternatives 29 PEACE MONITOR Volume 10 / Issue 2 September 2013
tution)? The only difference is ment under current circum- the deceiving and perhaps stances. If then, what’s so meaningless reference to the different between the UNP and ICCPR. Not that the ICCPR is what’s being promised by the meaningless, but inserting current regime (or the present reference to the ICCPR is Constitution)? meaningless if you are still And in yet another meaning- going to give ‘foremost place’ less fashion, the UNP promises to Buddhism. that in this regard, it will take The UNP cannot explain why into consideration a number of Buddhism should be given the documents such as the foremost place if all other Rajapaksa-Ban Ki Moon joint religions are also to be ac- communiqué, the UNHRC corded non-discriminatory resolutions on Sri Lanka and status as per the provisions of the LLRC report. Also prom- the ICCPR. To do so, it will have ised is the taking into consider- to adopt the line of the Sinhala- ation of the Tissa Vitarana Buddhist nationalists. But the Report and the papers ex- moment it does so, the rel- changed between the SLFP and evance of UNP’s ‘radical’ the TNA. The UNP also states alternative becomes useless. that it will take into consider- For the people, it would be far ation President Rajapaksa’s better to stick to the current speech of May 2009! regime and its Sinhala-Bud- At best, what these documents dhist nationalist groups who promise you is the 13th would do the same job for Amendment. But if 13th them. Amendment is what can be So too is the case about the promised, why not stick to the UNP’s principles on devolution present Constitution and the The UNP does not of powers. When the UNP said present regime. Furthermore, make clear whether it is going to be radical about there’s nothing clearly stated such matters, one thought about devolution in a number its version of whether its plan was to per- of these documents except for implementing haps discuss a political solu- the promise to implement the tion on the lines of extensive 13th Amendment. The UNP provincial-level devolution or perhaps some does not make clear whether its devolution includes form of a policy akin to that version of implementing the devolution of land advocated by the likes of Mr. S. provincial-level devolution Kajendren of the TNPF (i.e. includes the devolution of land and police powers, for ‘two nations, one country’). Not and police powers, for ex- example. Obviously it in a hundred years, the UNP ample. Obviously it cannot do says. What the UNP is promis- so, given that it was only cannot do so, given ing is as unclear as the promise recently that the UNP stated that it was only made by the present regime. that it is open to change on recently that the UNP For example, the UNP states devolution (see ‘UNP is open to that the country shall be a change on devolution’, Daily stated that it is open “unitary state” (but then, we Mirror, 22 May 2013). And it to change on have Article 2 of the current was stressed therein that the Constitution which sets that UNP would even think of devolution out in very clear and unam- constructing a new mechanism biguous terms). And this, to be based on the will of the people. sure, will not take you any What that is going to be, if further than the 13th Amend- opinion polls are to considered
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somewhat accurate, tells us Sinhala-Buddhist community that the best one could expect (which it has to please) and the from the UNP is either the international community 13th Amendment (sans land/ (which it attempts to please by police powers) or the rever- referring to the ICCPR, the sion to a different model, Latimer House Principles, the perhaps district-level devolu- Rajapaksa-Moon communiqué, tion. So there’s no meaningful the LLRC report, the UNHRC difference between this UNP resolutions, etc., in its propos- and the current regime. als). Ultimately, it knows that the former will be the deciding Also, one of the contentious force; hence the need to affirm issues concerning the 13th the unitary character of the Amendment is the fact that the State, the need to give Bud- Governor is appointed directly dhism its foremost place, the by the President, and has need to be extremely vague significant powers which about devolution, the need to negate the essence and rel- show that it’s confused about evance of devolution and the Executive Presidency, etc. autonomy at the periphery. This is why the people will Also, one of the con- One of the proposals of the ultimately decide that rather UNP is to abolish the post of than going with the confused tentious issues con- Governor and then give all and deceiving pseudo-Sinhala cerning the 13th those powers to the Head of Buddhist nationalists, it’s Amendment is the State. So the UNP pretends to better to go with the real thing: address the problem and then the Rajapaksa regime and the fact that the Governor re-introduces it in a different whole BBS/Sinhala Ravaya is appointed directly form. And it’s unclear how the jingbang. rest of the proposed provi- by the President, and In short, the UNP claims that sions on devolution can be it’s promising a radical future. has significant powers meaningful when all that has What it seems to be promising happened is simply a change of which negate the rather is a radical farce. The heads (from Governor to Head essence and relevance UNP shows no meaningful of State). hope in terms of radically of devolution and Given that the UNP’s policies changing the current political autonomy at the pe- on some of the most conten- and constitutional framework tious issues affecting the governing the country. In fact, riphery. One of the country are similar to those of it seems to be mimicking the proposals of the UNP the present regime, it is Rajapaksa-regime. What is is to abolish the post questionable how useful the necessary, it seems, is not a rest of the constitutional new leader for the UNP. What is of Governor and then principles (on the judiciary, required is an entirely differ- give all those powers independent institutions, etc) ent political formation; one would be. Also, promising which treats the UNP, not as an to the Head of State. people that they will have alternative force but as part of So the UNP pretends rights such as a “right to good the current regime – for that’s administration” is practically what the UNP actually is. to address the prob- questionable given the absence lem and then re-intro- [Editors note: This is an of ‘good administrators’. expanded version of an article duces it in a different In a sense, it does seem that that first appeared elsewhere form the UNP is stuck between the on the web.] Article source: Groundviews.lk
Centre for Policy Alternatives 31 PEACE MONITOR Volume 10 / Issue 2 September 2013
THE 13TH AMENDMENT AND EASTERN MUSLIMS
MOHAMED FASLAN
This article focuses on Muslim provincial council occasional clashes between Muslims and Tamils, politics in a context where issues related to the and the inactivity of the Indian military to defuse 13th amendment, powers of provincial councils, the situation collectively increased Muslims’ and elections to these, are being heatedly de- disappointment in the system. bated again in Sri Lankan politics. As far as As far as Muslims are concerned, though they provincial councils are concerned, Muslims do were not keen on devolution of power, and the not have an influential role except in the Eastern provincial council system was initially a big Provincial Council. There is no single Muslim disappointment for them. Then President J.R. minister in any provincial council other than the Jayawardhana’s executive power was a cause for Eastern Provincial Council. Therefore it is concern for Muslims, who expected to transform undeniable that any discourse regarding Muslim the Eastern province into a main political plat- provincial council politics essentially should form for their politics. In a nutshell, elections for concentrate on the Eastern province. the merged Northern and Eastern provinces The 13th amendment to the constitution was eliminated the aspirations of the Tamil and brought about by a Sri Lanka – India pact on July Muslim minorities. The Liberation Tigers of 29th 1987. Ensuring political rights for minori- Tamil Eelam (LTTE) too opposed this election. ties in the North and East was the main objective Only people who were sponsored by the Indian of the amendment, under which the provincial military and representatives of council system was established. It was agreed, J.R.Jayawardhana’s government were appointed according to the pact, to establish a provincial in the North - East province. council system, to merge provinces, to hold The inception of the provincial council system elections to the councils, to conduct a referendum itself was a disappointment for Muslims, and the in eastern province, and to implement an official system did not effectively function in the North language policy. Muslims are the second minority and East due to the conflict. However, the in Sri Lanka and they comprise 9% of the total merged North - East provincial council system population. Their proportion out of the total was in existence until 2006 despite the objection population in the eastern province is 32%. Since of the Muslims. In 2006, the North and East 1988, Muslim politics was centered in the provinces were de-merged separately in compli- Eastern province; in particular, the unique space ance with a decree by the Supreme Court. created under the leadership of Ashraf stemmed from there. In the following election to the Eastern Province in 2008, the United People Freedom Alliance Elections were held for the merged Northern and (UPFA) won the election, with 52% of the votes. Eastern Provinces in 1988 and Muslims, who Sivenesathurai Chandirakanthan alias Pillayan, were previously the majority with 33% of the who was a former rebel of the Liberation Tigers total population, became politically helpless soon of Tamil Eelam (LTTE) took office as the chief after the merging of North and East. Afterwards, minister. The Sri Lanka Muslim Congress
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(SLMC), which contested with the United Na- tional Party (UNP) could not win in this election and also the dream of Hisbullah, who contested under UPFA, to become a chief minister did not prosper. As a result, Muslims were disappointed for the second time in the provincial council system. http://www.ft.lk source Photo In the second election to the Eastern Province in 2012 the SLMC jointly formed the government with its 7 seats and the 14 seats won by UPFA. For the first time a Muslim was appointed as the representatives from SLMC were not included to chief minister to the Eastern Provincial Council. the committee as they oppose the proposed The SLMC contested in this election with an amendments. objective to appoint a Muslim as a chief minister. However, Muslims were again disappointed Eastern Muslims and the SLMC have never when the SLMC joined the UPFA to form the demanded a similar devolution system that government, securing Muslim votes after cam- Tamils continue to demand but their demand paigning against the government on its activities was, during the peace talks with LTTE, to provide and approaches to the Dambulla Mosque and powers to them as well if powers are to be Halal issues, also atrocities against Muslims by devolved to Tamils. They did not demand for a Bodhu Bala Sena. Though the Tamil National separate power devolution system. This demand Alliance (TNA) secured 11 seats, they did not by Muslims may be seen as a consequence of the have enough power to form a government. bitter experiences caused by liberation to them However it was criticized that the SLMC misused in the 1990s. an opportunity -that was created by the outcome The stand taken by the Muslim Congress, for the of the election - to form a government by minori- first time, to oppose the move by the govern- ties and that this was another example of SLMC’s ment to reduce the powers of provincial councils self-gaining politics to save ministerial posts and should be welcomed as far as minorities are other benefits. concerned in Sri Lanka. Nonetheless, it cannot be Now Muslims have been given ministerial posts compared to the struggle by Tamils for the and as a result, the benefits of developmental devolution of powers, as this stand by the SLMC activities have reached Muslim areas as well. is with the objective to sustain the political and Nevertheless, the powers of the governor of the economical benefits enjoyed by the Eastern Eastern Provincial Council cannot be under Muslims. Tamils’ struggle to devolve the power is estimated as he remains as a one who executes a psychological need which cannot be solved presidential powers directly within the province. easily but the struggle for the same by Muslims is This is why the Chief Minister of the council a material need which can be solved by provid- recently insisted on more powers to the council. ing some economical benefits. The SLMC and some Muslim politicians who usually withdraw Once again, discussions are on increase about their opposition for posts and benefits is a clear the 13th amendment, where elections have been example which explains the above situation. announced to the Northern Province. The government is of the opinion that the powers Within the provincial council system established related to police, land and merging provinces, by the 13th amendment, particularly in the given under the 13th amendment, should be Eastern Provincial Council, Muslims have started either reduced or controlled. The hard line to enjoy the power only since 2012. Therefore, it Sinhala extremist parties expect that these is not a surprise that the SLMC, which is based in powers should not go to Tamil minorities, if the the East, opposes the move to reduce the powers TNA were to win in the Northern Provincial of provincial councils. Council Election. A parliamentary select commit- Mohamed Faslan tee to discuss proposals to amend the 13th ASSISTANT LECTURER IN POLITICAL SCIENCE amendment also has been appointed. However, UNIVERSITY OF COLOMBO
Centre for Policy Alternatives 33 PEACE MONITOR Volume 10 / Issue 2 September 2013 INTERVIEW WITH
CHANDRIKA commons.wikimedia.org BANDARANAYAKE KUMARATUNGA
BY LIONEL GURUGE (Based on a translation of the solved satisfactorily. I can give original interview in Sinhala) any number of examples in the world including India. Q: The thirteenth amendment to the As soon as India gained Constitution transformed independence, if a federal the existing unitary government had not been framework of the state to a established and power had not broader arrangement of been given to the communities devolution of power. in those regions, by now India Whatever the opinion of the would be divided. I think that people, at that time both the 13th amendment is a you and Vijaya Kumaratunga satisfactory solution to were in favour of this. what maintain the unity and the is your opinion now? unitary status of this country by not allowing it to be divided In order to maintain the into two states. unitary status of this country, the peace between all ethnic The policy of “let us distribute groups and minority power and not divide the communities can be country”(lit “balaya beda rata strengthened by the 13th no bedamu”) during the time of amendment, which is my presidency, is still relevant. absolutely necessary. Even People who did not understand minorities in other countries this policy protested loudly. have asked for a different form How many of these laymen of government, if they, for and non laymen have been to The army personnel whatever reason, are not university? I am not saying treated as well as others. In that going to a university is said “Madam, they some countries, a broader such a great thing (but) people are terrorists.” I said devolution of power who have had a higher even if they are (federalism) has been education can read and demanded. In some forms of understand. This is relevant to terrorists they are my power devolution, either by a some of the leaders of this citizens. amendment to the country. I see this as a ploy for constitution or by a less some to remain in power, in powerful distribution of order to gain political power, the problem has been advantage and to rouse the
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population, at times when they 75% of the LTTE controlled (the people) are dissatisfied areas were freed. with the current regime. When we came, the LTTE said
If Sri Lanka adopted a federal that the problem could be asiantribune.com constitution like India, this solved by the devolution of situation would change. there power. Eight months after this is no need to distribute a very discussion, Prabhakaran wide range of power. I think kicked the whole decision and that the least that a left without any reason. Next, government with a political the war started. I said if it is vision should do, is to adopt war, it is war, peace if it is the 13th amendment. peace. We too fought the war. During the time I was Eight months after he president, the devolution commenced the war, we had package and power sharing the entire Jaffna Peninsula was proposed. At that time liberated. I did not achieve there was a war in the country this alone - my deputy - I did not need to go crazy minister Anuruddha Ratwatta making new amendments at and the army commanders at such a time. the time carried out a great In 1994 when I came into service. At the time, all the power, there were five districts soldiers contributed to and in the north under the rule of worked according to the plan. the Liberation Tigers of Tamil I found the money (for this Eelam (LTTE) Prabhakaran effort), I curbed crime and was seated in the Jaffna thefts as much as possible, and Kachcheri, giving orders to all finally, when I handed over the the officers like a king. The government to Mahinda After the Tsunami, government had control only Rajapakse there was only in 5 or 6 army camps - Palali, when the LTTE were 25% of the North to be Kankesanthurai, Mullaitivu, recovered. helpless, they went Silawathura, Vavunia, and everywhere in the Mannar were the limits of the They (the LTTE) had only army camps. Our soldiers who Mullaitivu and the area world, trying to find were in Palali, could not drink around Kilinochchi. Many donations, asking for the water as it was brackish. people have asked me why I funds to be given When they needed water they was unable to forcibly go and had to call Prabakaran and get take the rest, the way they did. directly to them. In his permission to go to a well If we had taken the remaining every country, they outside. Only with his 25% what happened now were reminded that permission could they venture would have happened then – outside Palali! still many are questioning the this was not necessary We saw this, which is why we actual happenings of the last and Chandrika’s gov- are saying this. Vijaya, who phase of the war and ernment was request- disputing that two or three was in the Mahajana Party ing them to come and reported this to us. He stayed lakhs of innocent people would two days in that camp. So the have been killed because of settle the war entire North was relieved of the heinous act Prabhakaran this problem; during my rule did.
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In Jaffna at the time we chased We couldn’t ask for ID cards at the LTTE, about five lakhs of that time, the way they were people in the Jaffna peninsular asking - how could we ask for were forcibly taken away at ID cards from refugees who
asiantribune.com gun point by Prabhakaran. had run away? That was a guerrilla tactic - the belief was that when they Out of five lakhs of people, were surrounded by civilians, around three and a half lakhs the Sri Lankan army would not had returned. We settled them be able to approach and kill gradually. Many went back to them. It was my plan to get their own homes. During our them back to Jaffna before attempt to capture Jaffna, they go to stay in Mullaitivu. I many homes had been could not allow them to stay destroyed. It did not take three near Prabhakaran. The army years for us to build them like personnel said “Madam, they it has now. I gave them money are terrorists.” I said “even if immediately, we also received they are terrorists they are my a great deal of international citizens.” My aim was to aid - we gave funds to them to convert terrorists into good rebuild their homes - we were citizens. Therefore experiencing shortages of Prabhakaran had to be singled materials - whatever cement out and something had to be we had, we shipped it there. done. We knew that we could Somehow Prabhakaran not save him, he was a forcibly detained about one terrorist to the core, he would and a half lakhs of people - never change. In order to among them some stayed corner Prabhakaran, these willingly. These one and a half people had to be taken away - lakhs of people are the ones they were mostly ordinary who lived surrounding the civilians - Prabhakaran had luxurious bunkers in which forcefully used them - they Prabhakaran and the LTTE were not terrorists. commandos hid. Surrounding Somehow I sent them very these were two or three circles powerful loudspeakers called of civilians, living in houses. “loud hedges”. The people had In order to capture the LTTE faith in the army, yet some leaders, all of these people sections did not approve. would have to be killed. To Isn’t it reasonable for These loudspeakers were given prevent this loss of life, I the Tamil people in to trusted army personnel at dispatched the (Catholic) the borders - they stayed in bishops, continuously asking the North and East to Kilinochchi and Mullaitivu in them to come for negotiations be afraid when Sinha- the jungles with nowhere to go (they had good relations with and no place to sleep other them,) but they did not come. lese people attack than on tree tops. them, burn their Announcements were made to Later on, Norway sent the extent possible and leaflets international negotiators. houses, dismember were dropped by air. “Come During Ranil and kill them? back, we wont harm any of you. Wickremasinghe’s time, a We would only check for settlement of sorts was weapens, we didn’t want reached. When my anything” government was in power, an
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Volume 10 / Issue 2 September 2013 https://www.colombotelegraph.com/ Photo: by Gabriel Lago Gabriel by Photo: https://www.colombotelegraph.com/
Chandrika Kumaratunga agreement was signed. I and stated that they were Court decision. Three months believe this was the best willing to work with us. Let us later he issued the other agreement signed by the LTTE rebuild this again. decree. Actually he did not with the Sri Lankan completely discard the relief government. It was a forward After that, in my Peace mechanism- yet he set aside its looking agreement. If it had Secretariat, Dr Jayantha most important components, been allowed to become Dhanapala and others saying they were against the reality, we could have solved discussed this with Pulidevan law. The LTTE then said that the problem to a great extent. and others sent by (that accord) was of no use to Prabhakaran, and we signed them. After the Tsunami, when the an agreement. For the first LTTE were helpless, they went time, the LTTE accepted the I told them not to worry about everywhere in the world, trying government of Sri Lanka. Until them - due to the executive to find donations, asking them then they had considered it as power I cannot be jailed. I will to be given directly to them. In the Colombo government and sign all proposals as if the every country, they were North government. For the disregarded portions are still reminded that this was not first time they also joined the valid, and we will be able to act necessary and Chandrika’s Sri Lankan government and sat accordingly. Let us carry it out. government was requesting in committees and agreed to I told him to believe in me. The them to come and settle the accept their policies on LTTE did not say anything - war – in effect: “Stop the war reconstruction and they just waited. Then I was and we will give the redevelopment. told to go home. From that government funds, it can be moment everything was over. taken from there.” What happened next is that It can be said that Sarath Silva Mahinda Rajapakse struck up caused that. At that time, they arrived at a a secret pact with Sarath Silva, good decision and without our the then Chief Justice - he told Now they are voluble about the asking, the LTTE came to us the CJ he wanted to defeat the 13th Amendment. I think that and requested a discussion LTTE, he issued that Supreme you should have got some clear
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answers to your questions. Provincial Councils police The 13th Amendment will and land powers would definitely not cause division of cause considerable the country into two. problems. Is there any truth dbsjeyaraj.com in that? A country that is going to be divided can be united again. The Secretary of Defence has The Tamil population say a not made any inquiries about great injustice has been done this. Possibly, it is only to them - some people ask recently that he heard about what is the injustice done - power sharing. There is no injustice has been done. I have need to name others. Many worked in the public service. educated ministers of the They will swear at me in filth, government had answered and it is not impossible to this, saying that it is not so. I throw a bomb at me, but I think so too. There were so have to speak the truth. I have many newspaper articles been in public service for 5 about it. It was the years in the Agricultural government that also made Ministry in the Land Reform some people scold those Commission in 1972. people. In the Land Reform It is not right to hit the south, Commission, nearly 500 saying that police powers people were working - not a were given - the police are single Tamil person worked only given the problems under there. Later when my their jurisdiction. department was in need of an accountant, we chose the most When a Provincial Council is suitable person after several established, they appoint a DIG interviews (he had worked in to handle issues in the region. the parliament also). Then my But the overall control of the chief officers rushed over and Police is by the Centrally asked me: “Madam, why have appointed Inspector General of you chosen a Tamil person?” Police (IGP) He becomes in (In 1973) there had been no effect the head, in charge of the Tamil problem, by then all North, and the police. It is the government officers had the I.G.P. who takes complete same problem. After that I responsibility – so how can it began to make inquiries about be said, that they (the the question. Provincial Council) are doing anything they want? In truth the Provincial I employed a person who had the suitable qualifications I We will look at this practically Councils were brought needed. By then I was a – since such a thing has under the 13th Marxist. With my Marxist happened in Sri Lanka, it’s the LTTE who became a threat Amendment, in order ideas I began to pry into government departments. Only when such a thing is being to solve the problem a few Tamil people worked in done. The LTTE did not take these departments. over the Sri Lankan army, they in the North and East. gathered another army and Q: The Secretary of Defence hit. It is true we have to be and other parties careful; however nobody from proclaimed that giving the police or army went to join
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them like they do in other and amass an army that went countries. In Syria for example, on to prepare for a massive large numbers of police and war. Therefore they had the army personnel joined the freedom to collect and train rebels. Such a thing never cadre. Only a few police happened in Sri Lanka. stations were present in the North, with 4 or 5 police Isn’t it reasonable for the officers - they were not given Tamil people in the North and sufficient arms. East to be afraid when Sinhalese people attack them, Now when military camps are burn their houses, dismember present everywhere, equipped and kill them? In spite of the with the most sophisticated prevailing peace, some weapons in the world (mostly members of the security forces what I supplied), how can they rape Tamil widows. About one use police power, even if it is year after the war was over, a given to them? Even if people large number of 13, 14, and 15 say no, I challenge you! Am I to year old girls were found to be say that 83 Black July did not pregnant. Is it reasonable to happen? That in 1958 people put some of our own people to were not attacked? That even the police force to prevent after the war ended, the Tamil such crimes from happening? civilians who were captured It is under the D.I.G’s command did not have problems from that these cases can be this government? Then, is it investigated. Also these people not reasonable for them to say want to catch the previous that they needed a police force LTTE people - this should be under their democratically done carefully. elected provincial councils, parliamentary officials, at least There is control from the those who will protect them moment these people are and not harm them? But the taken on. Also the army police force has to be personnel are everywhere in controlled. If President the North. In truth the police Mahinda Rajapakse wants, I is a force only concerned with can give him a plan of how this civil matters. can be done.
During the time of my Q: There is an accusation that government, Minister Ratwatta during the ten years of your Our country is sup- argued with me that the police stay, you did not give the posed to be a democ- should be involved in the war. necessary powers (Land and For several years I refused Police powers) to strengthen racy according to the this, and I agreed to finally the provincial councils. Please constitution but that accept it. Later on, explain. unprecedented levels of democracy is not corruption began to occur in The main reason for that is the implemented. There the police. Therefore we provincial council system was cannot take as an example brought about without the are white vans, what happened in the past. Sinhalese people even asking threats, and murders. The Sri Lankan army was not for it. Now the extremist present in the north when the groups like the Bodu Bala LTTE started to collect cadre Sena(BBS) and Jathika Hela Urumaya,(JHU) and a few extremists in the Sri Lanka Centre for Policy Alternatives 39 PEACE MONITOR Volume 10 / Issue 2 September 2013
Freedom Party (SLFP) say it other regions, then the tasking If what I said earlier is solved, was forcefully brought up, of taking a democratically this also would be solved without the Sinhala people obtained development to reach automatically. Some Tamil asking for it. Therefore they the citizens of those regions. sections of people in India want to completely abolish the have brotherly connections provincial councils. Even Min. But Provincial Councils have with Tamil people in Sri Lanka. Wimal Weerawansa says so - many more powers to be They ask that Tamil people there is a certain truth in it - implemented. They did a lot of here be given their rights back without the Sinhalese people work in Education and Health. at least now. If the Sri Lanka even asking, it has been given I have something else to say: government gives power to to the whole country. After Tamil people here, the this, the bad thing President J. the system of national animosity with the Tamil R. Jayawardene did was to not education was started by the people in India will be cleared. give a cent to the originally UNP. The ministers in the The Indian government is formed North and East Central government are asking why the 13th Provincial councils, thereby constantly asking for more making them redundant. powers to be given to the Amendment can’t be Health and Education implemented. After that, Prabhakaran did the ministers. The cabinet worked remaining things to destroy Q. The LLRC report has said to get schools and hospitals them. In truth the Provincial that in order to strengthen under the Provincial Councils, Councils were set up under the this 13th amendment, there to be nationalised. I rejected 13th Amendment, in order to should be more devolution of solve the problem in the North this. I didn’t legalise the taking power. Next the independent and East. If this was done, it over of things, not under the commissions brought by the would have been best to do the Central government by the constitution should be same to the other regions also. Provincial Councils strengthened and brought It was generally accepted that back again. The Q: In Sri Lanka as a primary in that case power sharing was recommendations of the form of power devolution, a good thing. LLRC which was formulated they are attempting to hold after the war, have not been Without the North and East elections, instead of giving implemented. What are your Provincial Councils, my power to the existing views regarding this? government deceitfully giving Provincial Councils. We are all powers to the other areas coming close to being This question has to be posed but nothing to the North and ostracised by India and to President Mahinda East, is not reasonable. That’s neighbouring countries. Rajapakse. It is he who formed the main reason. This is why I Madam, what kind of the commission. It was not said that someday when the reconciliation do you formed as a joke - it should be North and East war is over, we recommend? implemented, as it was formed, will devolve power by some wasting the money of the means; it has to be given to Personally I don’t see any public, wasn’t it? The president everyone somehow. Without other solution. The present should be aware that it should this happening in the government need their brains be implemented. necessary PCs, giving others cleared. With a clear mind, such powers is no use. realising the seed of this Q. In your opinion, by problem and evaluating it, they The most important thing in abolishing the 17th Provincial Councils is statutes need to work on giving some Amendment to the which devolve power and rights to the minority Tamil Constitution and promote a culture supportive and Muslim people, for establishing the 18th of devolution. In the case of governing their own interests, Amendment, how practical statute formulation the under the control of the Central are the powers in the 13th Wayamba PC is ahead of the government. Amendment?
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I am saying that the 17th selected every 2 or 3 years. In in both these governments, Amendment should also be the present party, that instead of choosing from given. The 18th should be democracy is in name only. bottom to top, the person who abolished. I am the one who They hold elections suits the party leader is chosen brought about the 17th fraudulently, and threaten as party organiser In this case, Amendment. I didn’t keep on people. Now, democracy is by internal democracy (the right appointing sham committees name only, in the constitution for people in the party to like these people did. This is of the party, and they don’t choose their representative what we brought about by allow it to be implemented. has been lost for both parties. asking the people to share If there was a democratic ideas, and evaluating them structure it would have been thoroughly. more successful, wouldn’t it? Q.So do you think that we The structure is available can achieve positive results legally in the SLFP. During the by keeping the 13th 62 years that we were the Amendment and 17th chairman in our party, we did Amendment parallel? not force anything. This is absolutely right - it will If the extreme majority of happen so. village wise committee, some organisers joined their seats. Q. Madam, do you think the They called everybody and present political parties in controlled them? During the Sri Lanka are democratic? Is time I was chairperson of the the SLFP a democratic party? party, the officers of party branches were elected Yes, the SLFP was democratic www.thesapri.org until recently. I have said so in democratically. If democracy public speeches. In a free Sri Our country is supposed to be was strong, there is no such Lanka, the most democratic a democracy according to the thing as being unable to tell party was and still is the SLFP. constitution but that the party chairman anything. On principal never killing democracy is not implemented. The party chairman has people (for our advantage.) There are white vans, threats, democratic rights to appear in The United National Party and murders. Also there are the place of someone else. Both (UNP) government killed issues within the party. The parties had rights. The Tamil people. We have never moment he came to power, the population will elect the best done this. The two Marxist president had told all the person (until June 1996 the parties also didn’t do this. In ministers to take care not to constitution of the party was communist countries during talk to me. Now people run that.) certain times, such things have away in fear when they see If there were to be a happened, but it didn’t happen me. But when they speak to democratic culture there would in our country. The LTTE has me confidentially , they are have been a solution to this murdered people. summoned and scolded. An problem, to a large extent. This example is Mangala Within our party, officials were Samaraweera. problem is not only in Sri always appointed Lanka but in India also. In democratically. I, my mother The constituents committees truth, this method should be and father have been lead are made of all party members expanded. characters for over 62 years. in a village. In the committees Those days according to the it is the person one likes who (Based on a translation of an constitution, chairmen were becomes the candidate. Now interview originally in Sinhala)
Centre for Policy Alternatives 41 PEACE MONITOR
Volume 10 / Issue 2 September 2013 www.youtube.com
OPTIONS FOR PROCRASTINATING ON THE 13TH AMENDMENT
By Gomin Dayasri
Hark, hark, dogs do bark; Difference stands out - the TNA sleeping dogs – the procrasti- is greedy for power while nators, warm stools in high Tamil people seek relief for places without attending to the many of their unresolved imperatives after securing a 2/ problems. The TNA will never 3 majority. Awake before it’s seek reconciliation between too late- this could be the last the Sinhalese and the Tamils, call on the 13th Amendment. with or without the 13th amendment, since it needs the The impact of the 13th amend- issue survival and strives for ment can be diminished or acrimony between communi- demolished, satisfactorily, if ties, as did the LTTE. the legitimate grievances of Tamils, as identified in the Procrastination on the LLRC/ Option A is LLRC report and accepted by Action Plan will be felt more in the government in its Action March 2013 than November comprehensively Plan presented to Hillary 2012 at the UNHCR. Be ready outside the Clinton, is implemented/ This to face allegations of sub- Rajapaksa agenda is a preferred alternative. It standard and undone work at means directly addressing the the coming sessions. Peal and probably not problems of Tamil people in every bell in temple, kovil or favored by the UNP in the North/East, satisfying their church - it falls on deaf ears. conferring police prime necessities. Political Failure to push officials who power the TNA seeks through failed to present positive powers to the the 13th amendment to reach results gives us a bad name. Provincial Councils. a circumscribed federal status Timely action on promised is ancillary and could be premise would have assuaged averted. India and the USA and helped
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Volume 10 / Issue 2 September 2013 http://www.np.gov.lk/ Governors Convention
to prevent efforts of a silent sions, notwithstanding talk and mission to back the security regime change that is being more talk. A task, only Mahinda forces to the hilt, in more engineered from outside our Rajapaksa is capable of fulfill- gruesome times, to snatch a shores. ing in the present political victory from the jaws of defeat. context if he is sufficiently Sri Lankans have the spirit and The government specifically fired up and possesses a team the dedication to achieve the sought a 2/3 majority and to achieve it - instead of nitwit impossible, asking hostile voters nearly provided it to a voodoo advisors. nations to mind their affairs government that had gained without interfering in our confidence by successfully Government faults the 13th domestic matters. wiping out terrorism. Defec- amendment and there is little tions that followed provided else beside its loose talk of a 13 Has Lanka’s euphoria waned the needed numbers. Has plus/minus situation to irritate and the dedication dimmed anything worthwhile material- India: the Opposition supports with the post war architecture ized out of this majority? Why the 13th amendment and is where skeptics have gained was it sought and why was it totally discounted, as shown ground? Gone back for a provided? The answer is when the vote is exercised at snooze in the land of nod? It’s obvious - to change the consti- elections. The 13th amend- more convenient to do nothing tution. ment continues to reign and sit on your rear, allowing supreme and a woeful future the 13th amendment to wend Imposed forcibly by India, it awaits Sri Lanka if the ten- it way on tiptoe on interpreta- being no home grown remedy: dency to dawdle remains tions given by the judiciary. the 13th amendment has been untouched. in existence for nearly 30 Unconsciously, we are entrust- years, without any beneficial National experience shows Sri ing the upkeep of the constitu- impact. It’s a wasteful extrava- Lankans can make things turn tion to the judiciary – a matter gance that has remained for the better if decisions, that was never contemplated without repair or replacement: however hard, are made. by the founding fathers who no undertaking to rectify or Rallying around the national later had to helplessly watch revoke its obnoxious provi- flag the people undertook a the weaving of an Indian
Centre for Policy Alternatives 43 PEACE MONITOR
Volume 10 / Issue 2 September 2013 http://www.sundaytimes.lk
National Freedom Front leader Minister Wimal Weerawansa signs his party's public petition to collect two million signatures urging the Government not to go ahead with the Northern Provincial Council elections. design around the 13th amend- sively unitary or a semi-federal unpredictable. It was safe ment, mother of most prob- structure. If judicial interpreta- under Sarath Silva in the lems, in the time of J.R. tion swings in favor of the Supreme Court as in his Jayewardene. ‘federophiles’ it would lead to patriotic moments he would federalism and a division of not permit a swing towards The 13th amendment has the country. federalism after his decision in resurfaced with suggestions it the de-merger case. be leveled to the ground, Option A: ironically coming from sources Option B deemed influential and persua- This is the desire of the TNA sive. The country is in it’s last and left elements within and This is the procrastinators’ lap with a 2/3 majority on its outsize the government. The dream world and a likely final journey before being laid TNA craves through the 13th eventuality that will be satis- to rest– it’s a now or never amendment and with favorable factorily to the TNA, as they opportunity - with five options judicial interpretations, to would look forward to achiev- to choose from- (A) Confer reach the promised land of ing their objective in the years powers so far not delegated, Eelam via federalism through a ahead through a Supreme including police and land legislative cum judicial pro- Court veering towards their powers, to the Provincial cess. For the left, with its thinking under a changed Councils and attach the concur- ageing leadership more ready administration. Leaving the rent list to the provincial for nursing homes than 13th amendment in its present council list. (B) Leave the 13th parliament, their political form places the Supreme Court amendment as it is and pro- philosophy been laid to rest in in a pivotal position to inter- crastinate with idle small talk. the mausoleums of Stalin and pret the constitution to confer (C) Eliminate police and land Mao Tse-tung by the voters. more or less powers to Provin- powers conferred on the They do not count any more cial Councils – like tossing a provincial councils and redis- except as votes in securing a coin in the air to watch tribute the subjects dealt in the desired majority in Parliament whether it flips heads or tails. Such are the ways of interpre- three schedules whereby - a heavy price to be paid for tation. national interest is safe- having them as appointed MPs guarded (D) Take the 13th on the parliamentary payroll. Option C amendment comprehensively off the constitutional map and Option A is comprehensively If a constitutional change is redraft provisions to provide outside the Rajapaksa agenda envisaged, it is the least contro- for the hiatus, (E) Leave it to and probably not favored by versial route to take on the judiciary through interpreta- the UNP in conferring police 13th amendment. If properly tion to determine whether Sri powers to the Provincial marketed using a bipartisan Lanka’s constitutional charac- Councils. But the trends in approach, the UNP may come ter is bent towards a exclu- judicial interpretations are on board. Only a few left
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leaners will be left out from the 13thamendment in place: the southern block. More likely, the dividing line is running thin - a UNP may change course to use most disturbing aspect. This is it as a bargaining chip to make the route to follow to get on It’s a wasteful ex- inroads into the minority vote. the federal highway and the If the wrong option is taken, the TNA is already on a by-road. travagance that has UNP will have many more years Jurisprudential schools believe remained without in the opposition if the national that interpretation by the repair or replacement: fervor reaches a climax. If judiciary is often a discretion- option C is taken the venomous ary inclination based on no undertaking to sting is de-fanged out of the individuality and is the reason rectify or revoke its 13th amendment but the for a judge in the USA to have extravagances associate with his track record minutely obnoxious provisions, the Provincial Councils will examined before appointment. notwithstanding talk remain. To reach grassroots, The fault is more with the and more talk. A task, Grama Sabha system would be legislature for placing the an imperative need to supple- judiciary in jeopardy by only Mahinda ment the vacant mezzanine introducing the dubious 13th Rajapaksa is capable floor that exists between the amendment to the constitution of fulfilling in the tiers of the Central Government leaving scope for interpreta- and the People at ground level. tion. Leaving such power of present political con- Option D interpretation in a body not text if he is sufficiently elected by the people means fired up and possesses This is the most favorable that the fate of a nation could option from a country perspec- be decided by a few. Loyalty of a team to achieve it - tive to restructure the entire the Supreme Court to a unitary instead of nitwit voo- constitution to satisfy the needs state as declared by the Consti- doo advisors. of people after ending terrorism tution, will be the decider and - jettisoning the Indian edition composition of a single bench of the 13th amendment. It to hear a crucial case can requires a bold initiative Presi- change history. dent Rajapaksa alone is capable of taking and if accomplished Sinhala lobbyists maintain that in the North /East and 92% of satisfactorily will be of lasting grievances are common to the the Sinhalese in the South as value. The people will undergo people of all communities revealed at recent survey any economic hardship to which is an over simplification undertaken by the government. achieve the objective if attended of a grave issue. True, most Naturally the TNA does not with a sense of justice and grievances are but not all, with support the venture. equity. Opposition from hostile a few of the prominent being local and international forces exclusive to varied ethnic Even at the cost of being would be immense. Would the groups. Language rights in the accused of being chauvinists by government be strong enough use of Tamil conferred in 1958 the extreme Tamil elements to overcome the onslaught as by legislation have yet to be and as ‘Tigers’ in sheep’s during the war? The blessing of fully functional and are indeed clothing by a few in the Sinhala the majority will be with such a belated for which all govern- diaspora, we must realize that venture. ments should take the blame. If we can live in harmony pro- a trilingual society emerges, as Option E vided we understand rationally currently envisaged, problems the problems others face The Supreme Court can freely can be solved by a direct instead of thinking only of our interpret the Constitution and dialogue and learning the problems alone. should not be faulted on inter- others language has been pretation with the endorsed by 94% of the Tamils Article Source: www.island.lk
Centre for Policy Alternatives 45 PEACE MONITOR Volume 10 / Issue 2 September 2013 THE POLITICS OF THE 13TH AMENDMENT AND ELECTION TO THE NORTHERN PROVINCIAL source: Colombo Telegraph Photo COUNCIL:
THE STAKES INVOLVED - PERSPECTIVE FROM THE LEFT
SURENDRA AJIT RUPASINGHE
The constitutional assault on enforce this form of absolute the 13A is the follow up to the hegemonic dictatorship? It is military conquest and occupa- not a simply a problem of a tion and political subjugation poisoned ideology, nor of a of the Tamil Nation by the Sri deranged megalomania. It is Lankan State commanded by not an issue about extremism the Rajapakse Regime. The and fundamentalist forces on legal and constitutional denial the fringe bearing on the of any form of nationhood and Regime. statehood to the Tamil people The legal and constitutional cohabiting historically in the decimation of the 13th Amend- North-East is the singular ment has to do with the politi- objective behind the mounting cal economy of the Regime and assault on the 13A. This its conditions of survival. The What is the driving assault is to constitutionally construction of a highly cen- declare the nullification of the tralized unitary State under the need for the Regime political and legal status of the banner of Sinhala Buddhist to establish this chau- Tamil Nation and establish the supremacy whose absolute vinist supremacy and undivided and undisputed writ shall prevail throughout supremacy of the Sinhala- the length and breadth of the enforce this form of Buddhist Nation throughout country is the prerequisite for absolute hegemonic the Land. the consolidation, expansion dictatorship? What is the driving need for and perpetuation of the the Regime to establish this Rajapakse dynasty and its chauvinist supremacy and Regime. The insatiable appe-
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Pakistan and other foreign powers, like slicing a cake. This is while the World Bank and the IMF devour the life lines of our economy. The 18th Amendment, then the Divi Neguma, followed by the impeachment of the Chief Justice and her replacement by a trusted agent of the Regime,
http://i1.ytimg.com and now the assault on 13A are ultimately driven by the Uma Maheswaran political economy of the Regime. It is the condition for tite for absolute power, wealth of the region in a state of consolidating and perpetuating and glory and the need to political subjugation and dynastic Comprador Capitalist perpetuate it through dynastic military occupation provides rule and ensuring uninter- succession has to be fed by a the economic basis for driving rupted succession. particular form of political the neo-liberal, crony-mafia The war to militarily liquidate economy. A political economy Comprador Capitalist agenda of the LTTE and eradicate the based on astronomical corrup- the Rajapakse Regime. A threat of ‘separatist terrorism’ tion and illicit, underground subject mass of dispossessed, paved the way for the estab- financial transaction that can oppressed people, deprived of lishment of the political and grease the machinery of a any means of survival, desper- ideological hegemony of the crony-mafia-narco political ate, dependent and vulnerable Rajapakse dynasty. The move economy. Securing untram- offer the most fertile soil for to decimate the 13th Amend- meled access to the economic unmitigated expropriation, ment has now become the exploitation and plunder of the exploitation and plunder. The centerpiece for entrenching human and natural resources envisioned – and on-going- and enforcing a Sinhala- of the North-East region, in expansion of tourism, agro- Buddhist, chauvinist-militarist, alliance with foreign predatory industry, trade and commercial hegemonic dictatorship under powers is a foremost economic activities, and sprawling the Rajapakse troika. The compulsion and priority of the development zones require the proposed amendments are Regime. It is backed by a whole priority given to mega designed to strip the Provincial range of corrupt, parasitic class infrastructural projects. Councils of any real power and agents tied to the Regime. It is Projects which are also the any sense of autonomy, while the foul smell of filthy lucre, of sources of immediate commis- centralizing and concentrating naked plunder, pillage and sions of truly astronomical even more State power in the profit that drives the political proportion, feeding a class of Executive Presidency. This economy of the Regime and its parasitic contractors and a agenda requires a continual retinue. whole state bureaucracy, tied stoking of religious and com- The North-East region is being to the comprador economy. munal hatred against all opened up as one of the most This development agenda and ‘aliens’. This ideological rot is lucrative regions for wholesale its political economy requires manufactured, reproduced and pillage and plunder. The con- exercising unlimited, untram- multiplied in a routine and centration on building infra- meled and undisputed political incessant way - institutionally, structure as opposed to giving hegemony and territorial socially, culturally and psycho- priority to issues of livelihood, consolidation of the entire logically. This is the role of security, dignity, justice and North-East Region. Like the grandiose victory parades and democratic freedom has its rest of the country, the North- constructing houses and war economic logic. Maintaining East is being split up between memorials for the armed the Tamil and Moslem people China, India, US, EU, Japan, forces, while desecrating and
Centre for Policy Alternatives 47 PEACE MONITOR Volume 10 / Issue 2 September 2013 erasing all monuments, besides the traditional social memory and legacy of the base consisting of the back- Tamil national liberation ward and superstitious rural struggle. This ideological rot is Sinhala masses that feed the served to infuse, energize and Buddhist priesthood. A priest- mobilize an inspired, noble, hood which has become a self-sacrificing sense of powerful political and ideologi- patriotism equated with blind, cal institution of hierarchic devoted allegiance to the privilege and obscurantist Regime. When you have a reaction. A political marriage political ideology that deeply between the rot of an archaic invokes a sense of religious feudalism and a corrupt, crony, devotion and faith and identi- neo-colonial Capitalism. When you combine fies this passion and devotion The Rajapakse agenda is these economic, po- with the ruling regime; When greased by a political economy litical and ideological the Regime is identified as that is entrenched in a whole being the historic repository of range of corrupt financial elements, you have a that faith, along with its ancient brokers, speculators and Regime that can exer- civilization, as its true guardian racketeers, cohabiting along- cise absolute, hege- and defender, then you have a side drug lords, war lords and most potent form of wielding a casino barons. A whole class of monic power-that is, neo-fascist Capitalist dictator- marauding crony-mafia-narco undisputed and undi- ship, based on a solid ideologi- Capitalists. When you combine cal core among the predomi- these economic, political and vided dictatorship. A nant majority of Sinhala and ideological elements, you have Regime that rules Buddhist masses. This political a Regime that can exercise with inimitable semi- and ideological hegemony has absolute, hegemonic power- its social base in this predomi- that is, undisputed and undi- fascist sophistication, nant majority which effectively vided dictatorship. A Regime under the cover of a wields political and administra- that rules with inimitable semi- five star democracy. tive dominance- and bureau- fascist sophistication, under cratic privilege- at all levels of the cover of a five star democ- state power –national, regional racy. and local- through its political representatives. This ideology This ideology and its political gives expression to a wide agenda is most cleverly ma- range of highly privileged and nipulated from the within the provide ample testimony. The upwardly mobile, urban and subliminal consciousness of overarching sweep, depth and semi-urban bourgeois and powerless, hopeless and power of this perverted and petit-bourgeois economic and terrified masses, who are made inverted consciousness is all technocratic strata. This to feel some sense of self- the more potent when it is fed comprador agenda falls in line worth, dignity and pride – with doses of hyped-up ‘anti- with the new and rising some misguided, deluded imperialist’ bourgeois nation- Sinhala mercantile, commercial arrogance- in being Sinhala alist jingoism. Creating a sense and industrial bourgeois class and Buddhist. This false con- of being besieged and threat- who would frequent Odel, sciousness could be- and has ened by enemies both from Keells and the Cinnamon been – used to incite racial outside and inside is crucial for Grand, live in luxury residen- hatred and violent conflict of the Regime. It manufactures a tial complexes, drive around in the most bestial and gruesome solidarity of fear and survival. BMW’s and educate their order. The long litany of com- It invokes a sense of a collec- children in elite private educa- munal pogroms and genocidal tive, tribal, historical destiny at tional institutions. This is atrocities, and the war itself, a most ‘perilous’ hour. This is
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the daily infusion of patriotic to reinstate the 17th Amend- blood that is driven into the ment!” Once the blood has veins of the Sinhala masses, been spilt, Ranil will clean up where the Tamil Nation, along the mess with a new Constitu- with other nationalities and tion and hope to revive the ethnic-religious communities, game wearing a clean shirt- are made out to be the devour- just as Chandrika did. Only to ing enemy. This is the ideologi- spill more genocidal blood in cal blood being fed into the the name of democracy! veins of the armed forces. In The emerging political sce- the most ironic historical logic, nario and the cut-throat drama the semi-fascist, barbaric being shaped over the 13th terrorism of the LTTE, al- Amendment to the Constitu- This ideology and its though a reaction to the tion and the proposed election structured and systemic to the Northern Provincial political agenda is fascism of the State, has fed Council is portentous and most cleverly into this agenda. When these decisive. It could have the most aspects are combined into a dire consequences beyond our manipulated from the form of image manufacture, it borders. The future of the within the subliminal confers the aura of mystique of Tamil nation and of the people consciousness of a legendary warrior con- of Lanka will be decided by the queror/ liberator upon the intensifying rivalry and con- powerless, hopeless reigning King, his State, his tention among the various and terrified masses, Retinue and his Realm. imperialist and regional who are made to feel Besides, any loosening up of hegemonic powers, and the the iron dictatorship would let role of the puppet neo-colonial some sense of self- the steam out and blow the ruling class in keeping the worth, dignity and whole game to history. Neither system afloat. There is a pride – some the UNP nor the SLFP and all pitched effort to place the 13A their class allies- none of the and the proposed election to misguided, deluded corrupt, criminal, parasitic the Northern Provincial arrogance- in being agents that live by robbing and Council at the center of the terrorizing the people- could political stage. This issue is Sinhala and Buddhist. face a People’s Revolutionary being intensified into a most Tribunal. Certainly not the momentous and decisive Rajapakse Regime. So, by all political confrontation, means, absolute power must wherein the existence of the and intensifying conjuncture be consolidated and perpetu- Tamil people as a Nation is to would be most decisive, having ated. The feigned malaise, be decided and settled, once an impact on the evolution and decrepitude and political and for all. The military liqui- definition of the Land and the impotence displayed by Ranil dation of the LTTE is now to be People of Lanka. The defense of Wickremasinghe is very much followed by a political-consti- 13A is not only an issue of the part of the game of preserving tutional decimation of the Tamil Nation. It is a decisive the system and the Capitalist historical status of the Tamil historic battle in defending dictatorship. You cannot rock Nation. The Bodu Bala Sena, freedom and democracy the boat when it is about to be the Sinhala Ravaya, the against semi-fascist dictator- overturned in mid-sea by Mahasona Brigade and such ship in the Land of Lanka. desperate masses. This is what are the ideological shock The writer is the Secretary: Ceylon he means when he mutters troops of the agenda. The JHU Communist Party (Maoist) that “overthrowing the and the NFF function as the Article source: http:// Rajapakse Regime is not on the ideological vanguard of the rise www.srilankabrief.org/ agenda. The need of the hour is of semi-fascism.The emerging
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Volume 10 / Issue 2 September 2013 Photo source: YATV screen capture screen YATV source: Photo GENDER ISSUES IN CONSTITUTIONAL REFORM: A REVIEW OF THE REPUBLIC AT 40 by Kumudini Samuel
The Sri Lankan Republic at 40: activists, advocates and femi- Reflections on Constitutional nists alike and has been History, Theory and Practice, written about fairly exten- edited by Asanga Welikala is an sively. This chapter extends important contribution to the and nuances this discussion discussion on the problems significantly, offering a timely concerning the republican exploration of political repre- constitutions of Sri Lanka and sentation within the Sri constitution-making projects Lankan republic vis-à-vis its and processes. women citizens and gender issues. It asks critically if the Finally the author The volume contains three state has indeed represented goes beyond review to chapters dealing specifically the interests of women as a with gender concerns in collective sex/gender; looks at warn that relation to Sri Lanka’s constitu- the dominant political repre- constitutions are tional history which I subject sentation of women within the to brief review here. state, their exclusions and often drafted by men The chapter authored by inclusions and the problems who assume that the Maithree Wickremesinghe and relating to such representation. interests of women Chulani Kodikara deals with The chapter offers new in- “Representation in Politics: sights to dispel a number of are similar to that of Women and Gender in the Sri popular beliefs – among them men. Lankan Republic”. The inad- that women enter or are equacy of women’s representa- compelled to enter the political tion in politics has been a arena primarily to strengthen vexed subject for Sri Lankan family or party politics; and
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context of the over-dependence on formal equality, which has failed to increase women’s representation in politics at either the national or the local level. The discussion is further extended to interrogate the refusal to accept identity and difference, and a rejection of any form of affirmative action in favour of women despite the rhetoric. In a comprehensive discussion of the sexual contract of the liberal demo- cratic project, which privileges the male subject – conceptualising equality as
Sundaytimes.lk sameness starting with the assumption of formal equality and not with the concept of difference – the authors note The Soulbury commissioners the insufficiency of this ap- proach to deal with the ques- that women only enter politics and critiques. This is a timely tion of the inclusion/exclusion at the death of a husband or analysis that melds activism, of women in politics and in the relative relying on family advocacy and scholarship in an exercise of their citizenship. connections. The authors attempt to understand The chapter by Susan H. argue instead that there is an women’s citizenship and Williams discusses “Gender often-ignored element of formal political engagement Equality in Constitutional political persuasion behind and representation in Sri Design: An Overview for Sri such compulsion and that Lanka today. Discussing the Lankan Drafters”. Her overview women do exercise agency in framing of constitutions – a includes commentary on the such decisions. It also points central theme of the book – the structure of rights, looking at out that reliance on family authors note that the republi- the distinction between connections is a phenomenon can constitutions were inher- positive and negative rights, that holds true in the case of ently framed to promote and the distinction between both males and females enter- Sinhala Buddhist interests and the vertical and horizontal ing politics, as parties rely on had no intent to protect application of rights: both these connections to garner citizenship and rights of any basic issues that have pro- votes where ‘nepotism is not disadvantaged category found implications for the only a customary political including women. Thus the ability of women to use and stipulation but has also be- authors note that women have enjoy their constitutional come an acceptable political not been able to rely on the rights effectively, and goes on practice.’ republican state to deliver on to interrogate the effect and their rights in the face of other Interesting discussions on desirability of limitation dominant identity interests and women’s campaigning and clauses. The author discusses politics (especially when strategising to increase politi- extensively the over-depen- founded on religion and cal representation historically dence on formal equality in ethnicity). and in the current context and constitutions and its shortcom- parliamentary debates on the This deep-seated flaw in the ings, and makes a strong case issue underpin the analysis constitution is discussed in the for adopting a substantive
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Volume 10 / Issue 2 September 2013 http://www.flickr.com/photos/vikalpasl/sets
The ‘Republic at 40’ edited by Asanga Welikala/available at http://republicat40.org/ model of equality in constitu- status of religious or custom- who assume that the interests tions. Bringing in an important ary law – here the author notes of women are similar to that of insight, the author notes that that the harmonisation of men. Therefore the author constitution drafters often customary/religious law and calls for serious consideration limit their thinking on gender equality is a delicate of the ways different constitu- women’s equality to rights and important issue in many tional choices affect women provisions and moves on to countries and a timely consid- and makes a fervent case for consider many of the structural eration for Sri Lanka. An taking women’s interests and aspects of a constitution that interesting commentary is also perspectives seriously in every can have critical impact on the made on the role of interna- aspect of constitutional design realisation of gender equality. tional law, making a call for the and at every stage of the In this context she discusses constitution to provide for a process. In a perceptive structural provisions such as mechanism for women to use proposition, she calls for ‘fully electoral systems and quotas to powerful international legal internalising the simple but increase women’s representa- instruments such as CEDAW shocking idea that the constitu- tion, and decentralisation that effectively in the domestic tion should be as much the can enhance and enable gender arena. In an important endeav- product of women’s concerns equality. As importantly, she our to assist future constitu- and perspectives as men’s.’ notes that there is an opportu- tion drafting, the chapter This idea, she notes, will nity to promote gender equal- reviews the Sri Lankan consti- revolutionise everything about ity in the section of the consti- tutions of 1972 and 1978 in constitution design and draft- tution that addresses the terms of these issues. ing and enable the equal legislative process. Also citizenship of women. discussed are provisions Finally the author goes beyond concerning the executive and review to warn that constitu- Ambika Satkunanathan writes provisions concerning the tions are often drafted by men a refreshingly different
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chapter in style and approach woman remained ‘largely on “Whose Nation? Power, invisible within Tamil party Agency, Gender and Tamil politics’ even when they were Nationalism”. The discussion is active in the public sphere, and Discussing the placed in the context of post- the author goes on to critique war Sri Lanka, but looks at the historical inability of Tamil framing of narratives, personal journeys, political parties to acknowl- constitutions – a reflections, strategising and edge women’s concerns and central theme of the activism of Tamil women who provide space for their politi- book – the authors engaged with Tamil national- cal participation, a situation ism in its formative years post- that continues to date. note that the independence, to those within Another interesting proposi- republican the armed movements, and to tion made by the author is that constitutions were those who chose to challenge the LTTE’s puritanical rules on Tamil nationalism from outside inherently framed to sexual behaviour were used ‘to and create alternative forms of promote Sinhala create an environment which engagement. was conducive for the partici- Buddhist interests and The uniqueness and impor- pation of women; an environ- had no intent to tance of the chapter is in its ment that would be acceptable protect citizenship new empirical evidence that to conservative Tamil society.’ seeks to ‘nuance and and rights of any However, with the end of the problematise existing scholar- disadvantaged war, Tamil women combatants ship on women and Tamil are impaled on the horns of a category including nationalism.’ It asks if the dilemma. Through a set of ‘reproduction of norms in the women. poignant vignettes the author course of women’s participa- records the narrations of tion result in re-making former women combatants gendered reality along new who trace their agency within lines…Were women able to the LTTE and their current exercise agency even within conundrum of having to deal very restrictive contexts, and with the securitised state that thereby shape and even continues to perceive them as challenge the Tamil nationalist the enemy ‘other,’ and a struggle?’ It thus looks at the resurging conservatism within ‘domestic sphere as a site of Tamil society that also seeks to political resistance’ over the erase them from history for years of the multi-faceted the very ‘transgressions’ they Tamil nationalist struggle, were once valorised. The arguing that women who author suggests that this is to engaged in political activism be expected in a community within party structures ‘unwit- that sees themselves under tingly transgressed and siege, and makes a strong case thereby challenged traditional for recording ‘Tamil women’s norms and restrictions’ on civic and political activism in their agency, an historic legacy the past to mobilise women to that allowed latter day Tamil become active participants in women to leverage engage- social change’ in the present. ment within the militant movements. Despite this, Tamil Article source: Groundviews.lk
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THE APRC: A FORGOTTEN RESOLUTION by Amita Arudpragasam
Four years after the end of the an ethnic conflict that has Sri Lankan civil war, Hindu blighted Sri Lanka for decades. temples are being destroyed in Similarly, the All Party Repre- the North, Muslim retail stores sentative Committee (APRC) are being attacked in the South was instituted by the and Sinhala Buddhist extrem- Rajapaksa administration to ism has become organized into resolve the nation question. its own brand. In other words, The APRC’s recommendations ethnic-religious tension within imagined a more pluralistic, the nation is still very much accommodative and inclusive alive. The Round Table confer- state within the constraints of a ence convened in 1984 by J. R. unitary framework. The Jayewardene, the All Party expectations and hype fabri- Conference convened by cated around it led to an President Premadasa in August anticlimactic conclusion 1989 and the draft constitution unworthy of its grand concep- titled ‘The Government’s tion, steady evolution, and Proposal for Constitutional notable final products. This Reform’ fashioned under paper explores not why the President Chandrika highly commended APRC was Kumaratunga are all initiatives so hastily dismissed, but what by Sri Lankan Presidencies to it actually was and why it is deal with the ethnic conflict still important. After three years of through constitutional reform. deliberation and 128 They are key not only because What is the APRC? meetings, the APRC they paved the way for future The 11th of July 2006 was an ended uneventfully reforms but also because they important day in the history of were the basis for change, the Sri Lanka. It marked the date and without anything result of significant positive on which the President made to show for it. political will and because they credible first steps towards promised the re-evaluation of seeking a political solution to past failures in constructing the national question, and the new strategies of dealing with date on which the All Party
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government approval based on the final draft discussion papers and amendments made by the APRC at the final APRC meetings. The unofficial Final Report, arguably the most important of the documents produced at the ARPC, recommends a Parlia- ment at the Centre comprising
the House of Representatives http://www.nation.lk elected by the people and the Senate elected by the provin- cial legislatures. It recommends Professor Tissa Vitharana that the unit of devolution be the province, that law and Representative Committee standing solution to the ethnic order including public order (APRC) came into existence. conflict, it was certainly a and the exercise of police Fifteen political parties were platform for dialogue through powers be devolved on the initially represented at the which solutions could be provinces, and that a provin- APRC. It consisted of a seven- envisaged and advanced. cial Government be entitled to teen-member expert panel to The APRC produced quite a exercise rights in or over State facilitate the process, one land that the province should representative from each few documents. The expert panel produced two reports, take over within the province political party, and the chair- (subject to the rights of per- man Professor Tissa Vitharana. called the Majority Report, and the Minority Report in Decem- sons in lawful possession or The members of the APRC met occupation of such land). In weekly, almost every week, ber 2006. Tissa Vitharana amalgamated these reports to addition, the Final Report deliberating more than three recognizes the supremacy of to four hours each time. produce “Main proposals to form the Basis of a future the Constitution, and advo- Besides the prolific time and Constitution” (also called the cates that a Constitutional energy spent on the APRC the Vitharana Proposals) in Janu- Court protect it, identifies APRC was a momentous feat ary 2007. A document known Tamil and Sinhala as national because it represented a local as the Interim report, “Action to languages and recognizes solution to resolving the be taken by the President to group and individual rights. national question. Unlike the fully implement relevant Among these promises, the recent Parliamentary Select provisions of the present APRC Final Report conceptual- Committee that was founded to Constitution as a prelude to the izes the state as an undivided, address similar issues, it APRC proposals”, recommend- unitary and integrated state acknowledged several different ing that the government structure where state power is perspectives, bestowing them endeavor to implement the shared between the Centre and each with a degree of political 13th Amendment and ad- the provinces. influence over what was equate funds be provided to Failed Promises and Expecta- assumed would become the facilitate the effective function- tions future constitution of the Sri ing of Provincial Councils was Lankan nation. It was a politi- released in January 2008. “Finding a political and consti- cal arena in which these Finally on July 19th 2010, R. tutional solution to the na- eclectic views, representative Yogarajan UNP MP and M tional question requires a of Sri Lanka’s ethno-cultural Nizam Kariapper Deputy multi-party effort and an diversity, clashed, converged Secretary General of the Sri inclusive approach”, an- and reached consensus. Lanka Muslim Congress nounced president Rajapaksa Perhaps not itself a lone- released a final report without at the inaugural meeting of the
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All Party Representative (UNP), and thwarted by the Committee in 2006, “I will take government on the grounds whatever measures necessary that the report did not have to bring peace with honour authority to be tabled. The and justice to my country; your APRC was forgotten, and the country; our country.”[1] The promises extolled to the
solution to the national ques- international community and MUNIR UZ ZAMAN UZ MUNIR tion, to the achievement of by Images/Photo Getty to Sri Lanka about striving for Robert Blake peace on behalf of all Sri peace and justice through Lanka’s people, he declared, Sri Lanka government.” He finding a political solution to would be the APRC. The APRC argued that it was always used the national question re- was promoted as the solution as a façade for India and the mained unfulfilled. to ethnic conflict both locally International Community, and and internationally to Indian that if the farce was continu- Why the APRC is still impor- Prime Minister Dr. Manmohan ally tolerated that “they [the tant Singh, the government of Japan international community] will Under the façade of Victory Day and the U.S’s Robert Blake, only be abetting the genocidal parades, development and among others. program of Colombo.” Others construction, newly erected also shared this view. For monuments in praise of the An Official Spokesperson for example, Dr. Paikiyasothi the High Commission of India military, and reconciliation Saravanamuttu, director of aligned cultural and sporting in a Press Release[2] on 25 Colombo-based think-thank, in events, a deep underlying January 2008, called the APRC the Saturday edition of Daily disharmony permeates Sri “a welcome first step”, a state- Mirror[6] said that Professor Lankan society, fracturing the ment issued by the Japanese Tissa Vitharana’s omission nation along linguistic and Foreign Ministry[3] said “the from the ministerial list ethnic lines. This is reflected in Government of Japan appreci- “reinforces the contention that the polarization of Sinhala and ates this as an important step the APRC [All Party Represen- Tamil local news-media on towards the political solution tative Committee] was set up events such as the U.S. resolu- of the conflict” and U.S’s for the sole purpose of placat- tion on Sri Lanka at the Robert Blake said “Sri Lanka ing the international commu- UNHRC, the Halal controversy now has an important opportu- nity and India in particular.” nity finally to achieve peace and the Northern Provincial and that opportunity must be After three years of delibera- Council (NPC) elections. The seized.” [4] But although on tion and 128 meetings, the trauma of the Tamil commu- the international stage the APRC ended uneventfully and nity from over thirty years of APRC was being promoted as without fruit. The government war, the rising hostility against an important political step failed to publish the final Muslims, and the outrage of towards resolving the ethnic proposals even over a year the International community conflict, some local observers after the APRC Chairman will continue to foster unrest were more skeptical. They presented the draft report to and discord if there is no clear argued that the APRC was President Mahinda Rajapaksa political resolution reflecting merely a tool used to counter in May 2009. In January 2010, genuine conciliation with Sri international pressure on Sri President Rajapakse publicly Lanka’s minority groups. That Lanka, and to distract the rejected proposals put forward seemingly superficial ethnic international community away by the APRC and instead said, tension can lead to large-scale from the war that was reach- “after the present election I am military movements, which ing its climax in the North. going to put forward my own then threaten the unity of the solution to the problem”. [7] On state, is a truth ascertained In an interview[5] in May July 20 2010, the much- through Sri Lanka’s turbulent 2010, Suresh Premachandran awaited Final Report of the history. At this juncture, four of the Tamil National Alliance, APRC was tabled in parliament years after the war and in the said “The APRC is a farce of the by United National Party midst of reconciliation efforts,
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preventative strategies for the Select Committee has been President, Wednesday, future are necessary. criticized heavily because of its May 15, 2013, Ministry of inability to give voice to Defence and Urban In June 28 2009,[8] the JHU opposition views. To date, in Development, http:// Spokesperson, Nishantha Sri light of its non-majoritarian, www.defence.lk/ Warnasingha said “There’s no representative and new.asp?fname=20060711_04 validity in APRC after elimina- multipronged approach and tion of the Liberation Tigers of the fact that it is the most [2] PACT Jan 2008, http:// Tamil Eelam (LTTE) on May 18. recent document on power pact.lk/24-january-2008/ [The] APRC was set up back in 2006 to bring about a political [3] Japan welcomes APRC settlement when the LTTE had proposals, 31 January significant military power.” The 2008, http:// insinuation, therefore, is that Land grabbing in www.dailynews.lk/2008/ without the military parity of and militarization 01/31/pol01.asp the LTTE, political concessions to the minority, and especially of the North are [4] February 21, 2007, Tamil, communities do not genuine issues Remarks by U.S. Ambassa- need to be made. However, that dor Robert Blake at the line of thinking is in itself that the Tamil National Peace Council responsible for encouraging community, and Symposium, http:// minority communities to take srilanka.usembassy.gov/ up arms. If military power is a thus the Sri feb212007.html requirement for political Lankan nation, [5] Tamil Net, Final nail in parity and for devolution and power sharing, then does this face today. APRC’s coffin , Tamil not incentivize fringe commu- Guardian, Wednesday May nities to take up arms? 12, 2010, http:// www.tamilguardian.com/ For genuine reconciliation, the sharing receiving Southern tg417/p14.pdf words of the president in 2006 consensus, the APRC Final [6] Tamil Net, Final nail in still ring true. Political accom- Report is still one of the most modation of historically relevant modern strategies for APRC’s coffin , Tamil oppressed groups must tackling the continuing na- Guardian, Wednesday May parallel assimilatory and tional question. One way 12, 2010, http:// difference-blind models of forward is to actually officially www.tamilguardian.com/ national citizenship. Peace, publish the Final Report tg417/p14.pdf honour and justice for this produced by the APRC; an- [7] Charles Haviland, Presi- country, our country, require a other step would be to evaluate dent rejects APRC propos- political solution that is seriously the suggestions als, January 2010, http:// agreeable to all the parties contained within it as the basis representative of our multi- for future negotiations. In light www.bbc.co.uk/sinhala/ ethnic society if we are evolve of the crisis of the dilution of news/story/2010/01/ into a truly pluralistic state. the 13th Amendment and the 100115_mahinda_tamil.shtml The defeat of the LTTE does not failures of the PSC, it is impera- [8] Warnasingha, APRC does imply that the Tamil commu- tive to hold the President to the not represent all parties, nity ceases to have sincere words he uttered in 2006, and The Nation, June 28 2009, socio-political concerns. Land to the promises preached in http://www.nation.lk/ grabbing in and militarization the hopes of a better future for 2009/06/28/inter1.htm of the North are genuine issues every Sri Lankan. that the Tamil community, and [1] “Only alternative to Peace Article source: thus the Sri Lankan nation, Groundviews.lk face today. The Parliamentary is Peace” – H.E. The
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CELEBRATORY MEMOIRS OF THE LIFE OF COMRADE SUNILA
ABEYSEKERA www.colombotelegraph.com by Lionel Bopage Last Thursday, I was reading rights organisation. My first an article about Joan Jara, the impression of her is indelibly widow of renowned Chilean etched in my mind. I saw an activist, singer, songwriter and attractive young woman of theatre director Victor Jara, about 25 years of age, vehe- and her family. They are mently striking a manual seeking long-delayed justice for typewriter trying to finish off the kidnap, torture and brutal an article she was writing. I murder of Victor in 1973, by remember her apologetically the Chilean secret police. My asking me to wait a little while. memories immediately went That was our first encounter. back to November 1977, when Later on, I came to know that all political prisoners including she had deep roots in theatre me were released in Sri Lanka. and music. In the 60s and 70s, A couple of months later, she had taken the Sinhala comrade Sunila Abeysekera theatre by storm with her and I were discussing at her haunting voice and breathtak- parents’ house in Nawala, the ing performances. She had inspiration Victor Jara brought been conducting notable to those who were working for performances on stage in her social change for a better early twenties, in Indian During the periods of world. This morning, Chitra classical and Kandyan dance. In armed conflict in Sri and I were greatly saddened by the seventies, she had com- the news that comrade Sunila, Lanka, Sunila menced lending her voice to one of the best, exceptional film music and had also be- denounced human and inspiring human rights come a familiar figure at rights violations activists of our time. had concerts. Even to date, the passed away in Sri Lanka. committed by all beautiful melodies ‘Udumbara parties to conflicts. I first met Sunila in late 1977 at Hinahenawa’ (Udumbara a bookshop in Colombo, to smiling) in ‘Bambaru Avith’ mainly discuss the formation (Wasps are Here) and ‘Hemin of a grass roots based human Sare Piya Sala’ (Flying Slowly)
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The 1971 youth insurrection had left an indelible mark on Sunila’s conscience. In her early 20s, Sunila with other young colleagues had started visiting young detainees held in Sri Lankan prisons. Taking them food and clothing, letters from family, she gradually became involved with their legal defence. It was at this time that she left the stage and began her life of activism. When we finally organised the ‘Human Rights Organisation’ (HRO), its President was Regi Siriwardena, a former LSSP veteran, with Sunila as the Secretary. The HRO opened branches in rural areas, and the JVP was also looking for recruits for the HRO among the clergy and the intellectuals. Sunila had known Chitra before photo by Patricia Williams of the New York Times York New the of Williams Patricia by photo I came to know her. It was Sunila Abeysekera, 2007 while working in these projects that Sunila became the inter- in ‘Hansa Vilak’ (A Swan Lake) mediary of my relationship continues to resonate and be with Chitra leading to our life in demand in Sri Lanka. partnership. How did such a vibrant artistic I recollect grabbing Sunila from career in film and music give a film studio in Narahenpita, way to human rights activism? where she was recording the Human rights had emerged as theme song of the film a major issue in the 1970s, as ‘Bambaru Avith’, to record successive governments in Sri ‘Vimukthi Gee’ songs at Ogee Lanka responded to youth Studio in Bambalapitiya. On militancy in the south and another occasion, I attended north with repressive legisla- her singing, when she contrib- She was branded a tion, arbitrary arrest and uted to the popular drama traitor and an enemy detention, torture and curbs on ‘Angara Ganga Gala Basee’ the freedom of expression, (River Angara Flows Down). of the state. A woman including censorship. Sunila However, her appearance on from the Sinhala had been active in civil society the ‘Vimukthi Gee‘ stage in the majority defending groups since the late 1970s, late seventies and early eight- untiringly working for the ies was very different from her the rights of Tamils, release of political prisoners previous role as an artiste. and advocating a negotiated Now she was singing for the political solution to the na- ordinary folk in villages and tional question. towns where she with other
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songs of struggle, protest and ued to keep in touch. liberation. She was the best In my mind, this did not and female vocalist in the troupe. should not diminish the role At the time, she was also she played in defending human working as a writer and rights including the rights of translator for the journal ‘Red women and non-majoritarian Power,’ which I was editing. communities in Sri Lanka. She She also did political work on was a powerful figure not only behalf of the party in the lower in the Sri Lanka women’s middle and upper-class niches movement of Sri Lanka, but in Colombo. This was the time, also of the international when the second wave of movement. She played a major feminism had reached a high role in the collective effort to singers and musicians, sang water mark in Western coun- draw the UN’s attention to the tries. The JVP manifesto need to include women’s supported the rights of women concerns, voices, and perspec- in terms of a fair wage and tives in peace building and appropriate working condi- conflict-transformation. Her tions. The idea of the person work extended to the situation being political, a woman being of civilians in war-affected an independent sexual being, areas, the rights of communi- that the home was just as ties such as sex workers, exploitative as the workplace people living with HIV/AIDS, and that patriarchy, not capital- and lesbian, gay, and ism, was the primary cause of transgender persons, and the oppression of women had sexual and reproductive rights not touched the political of women. consciousness of a JVP cadre. During the periods of armed Therefore, Sunila’s journey had conflict in Sri Lanka, Sunila several major hiccups. Being denounced human rights brought up in the better part of violations committed by all Colombo and having received a parties to conflicts. She was western tertiary education, her one of the first Sri Lankans to work and cultural ethic was so raise the issue of disappear- different to the rural Sinhala, ances in the nineties, when Buddhist, semi-proletarian and hundreds of young people, Sunila was an enor- lower middle-class background particularly in the South were mously courageous of the average JVP cadre. They disappearing at the hands of were extremely conservative the State and the JVP. She and inspiring friend, a and patriarchal in their think- addressed the United Nations caring mother, a tire- ing on cultural issues. Sunila Human Rights Council at its less and committed was passionate, bohemian and opening session in 2006. Being demonstrative; we of the JVP critical of the government, she activist, a professional were the complete opposite. shrugged off the risks that artiste, writer and Ultimately, the relationship posed to her own safety. She critic, and an ardent between her and the party was branded a traitor and an came to an abrupt end. Later, enemy of the state. A woman feminist. in the eighties, I met Sunila a from the Sinhala majority couple of times, but the inten- defending the rights of Tamils, sity of our friendship has not they could not stand. However, been the same. Yet we contin- she never wavered. Hers was
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an uncompromising struggle courageous and inspiring against the entrenched culture friend, a caring mother, a of impunity of withholding tireless and committed activist, accountability of those who a professional artiste, writer had been responsible for and critic, and an ardent enforced disappearances and feminist. She struggled for four killings of civilians. decades seeking justice for victims of human rights abuses She began highlighting rights in Sri Lanka. We, including all violations in Sri Lanka, perpe- those who suffered and con- trated under the guise of the tinue to suffer human rights Prevention of Terrorism Act violations are going to miss her and later through the promul- deeply. The only way to fill the gation of Emergency rule and vacuum she has left and her the various Emergency regula- legacy is to further strengthen tions. Her work also included our role in the protection of protection of the displaced due human rights and to armed conflict. At peak unswervingly commit to the periods of repression, she cause of social justice. arranged to document disap- pearances, and frequently took We extend our sincere and this information to the UN and most heartfelt sympathies to other international agencies. her family and friends. Her Because of her fearless and friendship, commitment to tireless advocacy and commit- social justice and activism on ment to human rights and behalf of the dispossessed will social justice, she faced death be solely missed by us all. threats and had to leave the The author was jailed twice and country, as her life was in tortured for his role as a former danger in the nineties and in leader of a mass liberation recent times. In recognition of movement in Sri Lanka in the her human rights activism, she 1970s and 1980s, called the was awarded the 1998 UN Janatha Vimukthi Peramuna Human Rights Award for Asia (People’s Liberation Front). He and the Pacific. rose to the position of general The last time we sang together secretary of the JVP but re- as a group was in the year signed from the group in 1984 She had been active in 2008, in Colombo in com- over a number of differences, civil society groups memoration of those who laid including his principled support down their lives during the for the right of national self- since the late 1970s, April 1971 insurrection in Sri determination for the Tamil untiringly working for Lanka. In 2010, Chitra and I people. He was eventually the release of political had the occasion to visit Sunila forced into political exile in Malaysia, when she was together with his wife, Chitra. prisoners and undergoing treatment for They now live in Melbourne, advocating a cancer. She was as determined Australia, where they continue negotiated political as ever to carry on with her to be outspoken defenders of struggle for human rights and human rights and social justice. solution to the social justice. (Article Source : Green Left national question. Sunila was an enormously Weekly/Groundviews.lk
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PRESS RELEASE ON NEW LAWS SEEKING ACTION AGAINST PUBLICATIONS THAT ‘DEFAME THE ORIGINAL TEACHINGS AND TRADITIONS OF THE MAJOR RELIGIONS’
21 AUGUST 2013, COLOMBO, SRI LANKA: academic freedom and minority cultural The Centre for Policy Alternatives (CPA) is rights. deeply concerned by reports that the Minis- The Bill, if enacted into law, will stamp a fur- try of Buddha Sasana and Religious Affairs ther official seal of approval on Sri Lanka’s is to introduce new laws seeking action slide towards majoritarian religious extrem- against publications that ‘defame the origi- ism and sectarian violence. The recent up- nal teachings and traditions of the major re- surge in ultranationalist violence by certain ligions’. These reports state that as a first Buddhist groups, marked by numerous at- step, a draft Bill providing for the establish- tacks on Islamic and Christian places of wor- ment of a ‘Buddhist Publications Regulatory ship, threatens to further undermine the Board’ that will be empowered to regulate fragile peace in post-war Sri Lanka. There is any publication purportedly ‘in violation of a very real danger that by seeking to protect Buddhism, its philosophy or traditions,’ has ‘the original teachings and traditions’ of re- been sent to the Attorney General for review. ligions, the Bill will lead to the arbitrary im- We are at a loss to understand how such a position of government-sanctioned versions measure is a priority, when so many other of religious belief on the public and effec- matters demanding the urgent attention of tively prohibit theological teaching, aca- the government in respect of communal rec- demic inquiry or critical commentary, across onciliation and amity have not received the all media, that questions government ortho- same consideration, including implementing doxy. Inevitably, the passage of the Bill will the recommendations of the Lessons Learnt seriously threaten efforts to interpret reli- and Reconciliation Commission (LLRC) on gious teaching in a manner that is respect- promoting religious harmony. CPA also notes ful of dialogue and tolerance. the context in which these measures are pro- posed is one in which national security con- The draft Bill, if enacted, will also manifestly siderations, as defined by the government, violate Article 10 of the Constitution, which consistently override democratic freedoms, guarantees to any person the ‘freedom of and serious incursions are being made into thought, conscience and religion, including
62 Centre for Policy Alternatives PEACE MONITOR Volume 10 / Issue 2 September 2013 the freedom to have or to adopt a religion or Jayaprakash Tissainayagam, Sarath Fonseka belief of his choice.’ The Constitution, it is and more recently, Azath Salley. Yet, the same important to recall, does not permit any re- provisions have not been used to prohibit striction whatsoever on this fundamental and prosecute brazen acts of physical vio- right. The measure would also have a chill- lence on places of minority religious worship. ing effect on the freedom of speech and ex- This history of selective application of other pression including publication restrictions on free speech se- protected by Article 14 of the riously calls into question the Constitution, and Article 19 of CPA also notes motives behind the introduc- the International Covenant on that existing legis- tion of the instant draft Bill. Civil and Political Rights lation already CPA therefore calls on the gov- (ICCPR) to which Sri Lanka is prohibits the ernment to desist from intro- a state-party. In our conten- inciting of vio- ducing the draft Bill to Parlia- tion, neither the Constitution ment. We also call on all those nor the ICCPR permits the wide lence through variety of potential restric- hate speech. concerned with the rule of law, tions on the freedom of expres- fundamental rights and reli- sion that may be imposed by gious harmony in Sri Lanka to the new measures, including of course, the prevail on the government that the draft Bill scope for abuse that is inherent in any at- – and the motives for its introduction – are tempt at state regulation of religious faith utterly unacceptable. and morality. CPA further recommends that if the govern- CPA also notes that existing legislation al- ment is truly serious about arresting the rise ready prohibits the inciting of violence of religious extremism and intolerance and through hate speech. Section 3 of the ICCPR promoting religious co-existence, it should: Act of 2007 prohibits the advocacy of ‘na- 1. Take immediate steps to implement the tional, racial or religious hatred that consti- LLRC recommendations on promoting tutes incitement to discrimination, hostility religious harmony and co-existence, or violence.’ In this respect, we are concerned which call for establishing a mechanism that the proposed Bill will be selectively ap- in consultation with inter-faith groups plied to harass and persecute dissenting that can serve as an early warning and voices. We are mindful that section 2(1)(h) diffusing system of potential religious of the Prevention of Terrorism Act (PTA) that tension, and which has not been in- prohibits speech which ‘causes or intends to cluded in the government’s LLRC Action cause commission of acts of violence or reli- Plan. gious, racial or communal disharmony or feelings of ill-will or hostility between dif- 2. Put an end to the culture of impunity and ferent communities or racial or religious ensure that law enforcement authorities groups’ has been exclusively used in the re- investigate, arrest and prosecute perpe- cent past to detain and prosecute journalists trators of attacks on places of religious and opponents of the regime; including worship.
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Volume 10 / Issue 2 September 2013 http://www.srilankabrief.org
real life army drill at Weliweriya
STATEMENT ON THE VIOLENCE IN WELIWERIYA
CENTRE FOR POLICY ALTERNATIVES
6th August 2013, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) notes with the greatest alarm and anxiety the distressing events that transpired at Weliweriya in the Gampaha District of the Western Province last Thursday, 1st August 2013. It is not the first instance in post-war Sri Lanka of unarmed citizens exercising their democratic right to protest being tear-gassed, fired upon and killed by the security forces: in the export processing zone at Katunayaka in 2011 and in Chilaw in 2012, respectively, 01 innocent citizen was killed. Likewise, media personnel covering the event were manhandled and their equipment confiscated, damaged or destroyed. The number of fatalities recorded in Weliweriya currently stands at 03, with many more injured.
These incidents of the killing of unarmed citizens – and in the Weliweriya incident, two young students reportedly not directly involved in the protest – are tragic and shameful reminders of the collapse of the rule of law in our country, and most importantly, of the mind-set of the government in respect
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of the exercise of democratic rights by its citizens. Serious and fundamental questions come to the fore with regard to the rule of law and the maintenance of law and order by the government, in the context of the complete disregard of the constitutional and legal framework governing the circum- stances in which the armed forces may legitimately be called out in aid of the civil power. In this extra-legal sphere, is it now a standard operating procedure for the police to abdi- cate its responsibilities for law and order, on account of incapacity or otherwise, and call in special forces and the army? What are the orders given to the latter in such a situation? Use live ammunition? Shoot and shoot to kill? Indeed, who gives such orders? Who takes responsibility for them? What is the operational chain of command and who answers to Parliament? What are the prospects for an unhin- dered judicial process?
An internal inquiry has been ordered by the new Commander of the Army, on whose first day of office, this reprehensible event occurred. There is also, apparently, an on-going police investigation. The Human Rights Commission too, has com- menced an investigation. Adding insult to injury, government spokespersons are also quoted as alleging foreign involve- ment in the event, political party sponsorship of the violence, and ascribing responsibility to the media for the events. Not only does it seem that the Sri Lankan state is fast becoming a predator rather than a protector of the people, but also that it holds the credulity and goodwill of its citizens in utter con- tempt.
Nothing short of a credible, independent and impartial inves- tigation, the findings of which should be made public, can allay the concerns of the citizens of Sri Lanka as to the alarm- ing extent of the collapse of the rule of law and law and order in the country. The failure to conduct such an investigation, and the necessary judicial punishment of the perpetrators, would be a major miscarriage of justice, a fundamental It is not the first in- failure of the primary duty of protection that the state owes stance in post-war Sri its people, and an invitation to continued adverse interna- tional attention to Sri Lanka’s human rights record. The Lanka of unarmed government and its political allies including sections of the citizens exercising clergy would do well to heed these considerations in their their democratic right response to the Weliweriya incident.
to protest being tear- The fullest demonstration of the government’s genuine gassed, fired upon commitment to the rule of law and law and order with regard and killed by the secu- to this incident should be seen in turn as a measure of its willingness and ability to ensure democratic governance in rity forces Sri Lanka. Its failure to do so will only further increase the burgeoning democratic deficit and retard our prospects for reconciliation, unity and prosperity.
Centre for Policy Alternatives 65 PEACE MONITOR Volume 10 / Issue 2 September 2013 SUPREME COURT DECISION ON LAND POWERS 26 SEPTEMBER 2013
MOHAN PIERIS - CHIEF JUSTICE asiantribune.com In the matter of an Application 1. The Superintendent for Special Leave to Appeal Stafford Estate, against judgment of Court of Ragala, the 2nd Respondent- Appeal dated 08.08.12 in Case Halgranaoya. Respondent-Petitioner. No. CA (PHC) Appeal 37/2001 2. S.C.K. De Alwis and in the High Court (Kandy) Y.J.W. Wijayatillake, P.C. Consultant/Plantation Expert, of the Central Province Case Solicitor General with Vikum Plantation Reform Project, No. Certi 42/97. de Abrew, S.S.C. And Yuresha Ministry of Plantation Solaimuthu Rasu, Industries, Fernando, S.C. for the 3rd Dickson Corner Colony, Colombo 04. Respondent- Respondent- Stafford Estate, Petitioner. Ragala, 3. The Attorney-General, Halgranaoya. Attorney-General’s M.A. Sumanthiran with Petitioner-Appellant Department, Ganesharajah and Rakitha S.C. Appeal No. 21/13 Colombo 12. Abeysinghe for the Petitioner Appellant-Respondent. S.C: Spl. LA 203/ 12 Respondents-Respondents- CA/PHC/Appeal No. 37/2001 Petitioners WRITTEN SUBMISSIONS By HC/CP Certi. 42/97 the 2nd Respondent Petitioner Vs. Vs. on: 24th July 2013 and 23rd Solaimuthy Rasu, August 2013. 1. The Superintendent Dickson Corner Colony, Stafford Estate, FILED : By the 3rd Respondent Stafford Estate, - Respondent Petitioner on: Ragala, Ragala, Halgranaoya. 13th March 2013 and 25th Halgranaoya. July 2013 2. S.C.K. De Alwis Petitioner -Appellant- ARGUED ON : 11th July 2013 Consultant/Plantation Expert, Respondent Plantation Reform Project, 17th July 2013 Ministry of Plantation BEFORE: : Mohan Pieris, P.C., DECIDED ON : 26th September Industries, C.J., Sripavan, J. Wanasundera, 2013 Colombo 04. P.CJ. Mohan Pieris, PC CJ 3. The Attorney-General, COUNSEL : Manohara de Silva, Attorney-General’s P.C. with Palitha Gamage for This is an application for Department, the 1st Respondent- special leave to appeal from Colombo 12. Respondent Petitioner. Gomin the judgment of the Court of Dayasiri with Palitha Gamage Appeal dated 08.08.12 Respondent-Respondents and Ms. Manoli Jinadasa and wherein the Court of Appeal AND NOW BETWEEN Rakitha Abeygunawardena for set aside the judgment of the
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Provincial High Court dated Court of Nuwara Eliya in terms application and upheld the 25.10.2000. I have read in of the provisions of the State preliminary objection. draft the judgment of my Lands (Recovery of Thereupon the Respondent brother Sripavan J and while I Possession) Act No 7 of 1979. preferred an appeal dated agree with his reasoning and The Petitioner-Appellant- 22.11.2000 to the Court of conclusion on the matter, I Respondent (hereinafter Appeal on the basis that the would set down my own views referred to as the reasoning of the Learned High on the question of law before “Respondent”) filed an Court judge was erroneous us. application in the High Court vis-à-vis the provisions of the of the Province holden in The instant application before Constitution of the Democratic Kandy praying for a writ of us raises important questions Socialist Republic of Sri Lanka. certiorari to quash the quit of law and at the inception of notice filed in the case. The It was the contention of the the judgment it is pertinent to 2nd Petitioner filed statement Respondent that the Provincial observe that the Respondent- of objections and affidavit, on High Court had misdirected Respondent-Petitioners 27.02.96 and raised the itself in holding that the Court (hereinafter called and following preliminary was devoid of jurisdiction to referred to as “Petitioners”) objections.’ inquire into and determine the obtained special leave from application for writs in respect this Court on the following two (a) The said land is a State of notices filed under the questions - Land. provisions of the State Lands (i) Did the Court of Appeal err (b) The second Petitioner, as (Recovery of Possession) Act by deciding that the Provincial the duly designated competent No 7 of 1979 as amended. By High Court has jurisdiction to authority in terms of the its judgment dated 08.08.12 hear cases where provisions of the State Lands the Court of Appeal states, dispossession or (Recovery of Possession) Act inter alia, as follows encroachment or alienation of No 7 of 1979 issued quit (i) The subject of State Land is State Lands is/are in issue? notice dated 7.10.1997 to the included in Appendix II of the Respondent by virtue of (ii) Did the Court of Appeal err “Provincial Council List” (List Section 3 of the said Act; by failing to consider whether I) to the 9th Schedule to the there is a right of appeal (c) Thus the Respondent has 13th Amendment to the against the Order of the High no legal basis to invoke the Constitution; Court dismissing the writ jurisdiction of the (ii) Therefore State Land application in limine for want Provincial High Court; becomes the subject of the of jurisdiction? Be that as it (d) The High Court of the Provincial Council List even may, when this matter came Province stands denuded of though State Land continues to up before us on 17.07.13, all jurisdiction to hear and vest in the Republic; (iii) Counsel agreed that they determine the matter as the Therefore, the High Court of would make their submissions subject of the action pertains the Provinces has the power to only on the first question of to State lands and the subject hear and determine law and accordingly this Court does not fall within the applications for prerogative proceeds to make its Provincial Council List - remedies filed to quash quit determination on the first namely List I. notices issued under the State question. Lands (Recovery of The Provincial High Court, The Facts Possession) Act No 7 of 1979 after hearing the oral as amended. The 2nd Petitioner the submissions and written competent authority initiated submissions of the parties, by The Court of Appeal in proceedings to recover a State Order dated 17.11.2000, held arriving at its conclusion Land in respect of an illegal that it had no jurisdiction to placed reliance on the occupation in the Magistrate’s hear and determine the Determination of this Court
Centre for Policy Alternatives 67 PEACE MONITOR Volume 10 / Issue 2 September 2013 dated 10.02.2013 on the Bill of Appeal came to the correct could be translocated and if the titled “Land Ownership “(S.D. finding when it held that the entirety of state land is not No. 26/2003 - 36/2003). The Provincial High Court could assigned but a portion with Court of Appeal has also exercise writ jurisdiction in conditions, the se are the alluded to the judgment of the respect of quit notices issued attendant circumstances that Supreme Court in Vasudeva under the provisions of the would demonstrate an Nanayakkara v Choksy and State Lands (Recovery of unequivocal intention not to Others (John Keells case) Possession) Act No 7 of 1979 cede what belongs to the {2008} I Sri.LR 134 wherein it as amended. Republic. One would be driven to the conclusion that the was stated - “a precondition The resolution of this question subject matter in its entirety laid down in paragraph 1:3 is necessarily involves an would belong to the dominant that an alienation of land or examination of the nature and owner of property. disposition of State Land content of the subject matter within a province shall be done of State Land that lies with a If there is a reservation in List in terms of the applicable law Province by virtue of the 13th II, the inescapable inference only on the advice of the Amendment to the follows that what is reserved Provincial Council. The advice Constitution and it is quite to the Republic could only be would be of the Board of convenient to begin this the larger entirety out of which Ministers communicated examination by looking at the the 13th Amendment chose to through the Governor, the apportionment of land as assign some portions of State Board of Ministers being delineated by the terms of the Land to the Provincial Councils responsible in this regard to Supreme Law of the country and the pertinent question the Provincial Council.” In the that are found in the 13th before us is the parameters end after having stated that it Amendment. The 13th with which of what is was bound by the principles Amendment to the entrusted to the Provinces. All laid down in the judicial Constitution refers to State this has to be gathered from decisions, the Court of Appeal Land and Land in two different the settlement that the 13th concluded that State Land and distinct places. In my view amendment chose to make in becomes the subject of the the entirety of State Land is 1987 and one cannot resile Provincial Council. referred to in List II (Reserved from their explicit terms of the 13th Amendment and there It is from the said judgment of List) and it is only from this germinal origin that the must be deference to that the Court of Appeal that the Republic could assign to the intendment. If the Constitution petitioners have preferred this Provincial Councils land for contains provisions which appeal and submissions of whatever purposes which are impose restraints on Counsel were addressed to us, deemed appropriate. It is institutions wielding power, as I have stated at the therefore axiomatic that the there cannot be derogations beginning of this judgment, on greater includes the lesser from such limitations in the the question of law- (Omne majus continent in se name of a liberal approach. It Did the Court of Appeal err by minus) and having regard to must be remembered that a deciding that the Provincial the fact that in a unitary state Constitution is a totally High Court has jurisdiction to of government no cession of different kind of enactment hear cases where dominium takes place, the than ordinary statute. It is an dispossession or Centre has not ceded its organic instrument defining encroachment or alienation of dominium over State Lands to and regulating the power State lands is/are in issue? the Provincial Councils except structure and power in some limited circumstances relationship; it embodies the It remains now for this Court as would appear later in the hopes and aspirations of the to engage in an analysis of the judgment. people; it projects certain basic Constitutional provisions and values and it sets out the judicial precedents to It is only from a reserve or objectives and goals. I now determine whether the Court pool or a mass that a portion
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proceed to indulge into an List II and List I As contended by the Learned inquiry as to the power Counsel for the 2nd Petitioner, In List II (Reserved) it reads as structure and power the use of the phrase “that is follows: relationship as delineated in to say” carries with it the the 13th Amendment to the “State Lands and Foreshore notion that what is allocated Constitution. except to the extent specified as land is all that is specified in in item 18 of List I” Teleological as it may appear, item 18 and nothing more. one has to go from List II to In List I (Provincial Council) Having set out a narrow scope List I. As the Counsel for the appearing in item 18 the of the corpus of land in item 2nd Petitioner submitted, Land sentence reads as follows 18, the Constitution in the same breath answers the in Sri Lanka consists of lands “Land - Land that is to say, belonging to individuals, question as to what extent rights in and over land, land corporate bodies, land powers have been settlement, land tenure, unincorporated bodies, extended to Provincial transfer and alienation of land, charitable, social institutions, Councils. The next phrase land use, land settlement and local authorities, temples, delineates and demarcates the land improvement to the kovils, churches, mosques and extension - “rights in and over extent set out in Appendix II” trusts etc. The bulk of the land land, land settlement, Land is vested in the state as state A perusal of the above two tenure, transfer and alienation lands and are held by the state provisions unequivocally of land, land use, land and/or its agencies. points to the fact that State settlement and land Lands as referred to in List II improvement to the extent set State can make grants embraces the comprehensive out in Appendix II”. absolutely and more often it entirety of the corpus of State does so provisionally with Thus the Constitution, in item Land out of what is carved out conditions attached or by way 18 of List I circumscribes the of leases, permits, licenses as Land. It is not just land but land land powers in that there are per provisions governing that is to say, rights in and over two terminals between which disposition of state lands. Such land, land settlement, land one encompasses the land conveyances can be made by tenure, transfer and alienation given to provincial councils. the State to any person/ of land, land use, land The first terminal, namely the organization entitled to hold settlement and land use of the phrase “that is to land including Provincial improvement to the extent set say” indicates the limited Councils. All this partakes of out in Appendix II” powers conferred on the the dominium that the State List II connotes the greater Provincial Councils and the enjoys in having ownership mass of State Land that second terminal “to the extent and its attendant incidents of includes List 1 as the lesser. set out in Appendix II” ownership such as its use and But what has been given as indicates as to how far consistent with these land for purposes to be Provincial Councils can go in characteristics it is pertinent gathered from Appendix II is exercising the land powers to observe that the itself circumscribed by the that have been bestowed Constitution unequivocally in qualification namely - “rights in and over List II and in Appendix II has land, Land settlement, land placed State Lands with the -That is to say... One begins tenure, transfer and alienation Centre, “Except to extent from the larger namely List II of Land, Land use, land specified in item 18 of List I” out of which List I originates. settlement and land [quoted from List II]. Thus the What is allocated remains improvement.” Constitution as far as State embedded in item 18 of List I which demarcates the extent I now proceed to examine Land is concerned traverses Appendix II which is an delivered to Provincial from List II via List I to final annexe to List 1. destination Appendix II. Councils.
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We have seen that it was the Minister and other Ministers Special Provision 1.1 - State intention of the framers of the of the Cabinet of Ministers, the Land required by the Constitution to give an exalted Chief Justice and other Judges Government of Sri Lanka position to State Lands in List of the Supreme Court, such State land required for the II and leave it in the hands of grounds and disposition of the Republic and deliver a lands and immovable property purposes of the government in specified portion of State listed in the Republic as he is a Province, in respect of a Lands to the Provinces namely by law required or empowered reserved or concurrent subject - “rights in and over land, land to do, and use the Public Seal may be utilised by the settlement, land tenure, for sending all this whatsoever Government in accordance transfer and alienation of that shall pass the Seal.” with the laws governing the Land, land use, land settlement matter. The Government shall Limited Extents of Powers and land improvement.” and consult the relevant Provincial Over Lands call it “Land” in List I The Council with regard to the lesser nomenclature “Land” in Having set out the overarching utilisation of such land in List I connotes the subsidiarity dominium of State Lands with respect of such subject. of the role that lands assigned the Centre, Appendix II sets The consultation specified in to Provincial Councils play and out special provisions which this special provision would it becomes patently clear upon would qualify as further not mean that the Government a reading of Appendix II which limitations on State Lands brings out the purposes for has to obtain the concurrence assigned to Provincial of the relevant Provincial which land has been assigned Councils. These special to Provincial Councils. Council. State Land continues provisions apart from to vest in the Republic and if Appendix II demonstrating the limited there is a law as defined in extents of Provincial Councils Appendix II begins with an Article 170 of the Constitution over Land also display unequivocal opener -”State that governs the matter it is Land shall continue to vest in unmistakably that State Land open to the Government to the Republic and may be continue to be a subject of the make use of the State Land in disposed of, in accordance Centre. the province of the purposes with Article 33 (d) and written Having grafted the brooding of a reserved or concurrent laws governing the matter. presence of the Republic on all subject. Consultation would “This peremptory declaration State Lands in List II, List I and mean conference between the is a pointer to the fact that then the Appendix II and Government and the State Land belongs to the subject to these pervasive Provincial Council to enable Republic and not to a provisions, State Land is them to reach some kind of Province. The notion of declared to be a Provincial agreement -S.P. Gupta v Union disposition of State Land in Council Subject in the second of India A.I.R 1982 SC 140. accordance with Article 33 (d) paragraph of Appendix II but Such consultation would not and written laws governing the that declaration is only detract from the fact that that matter establishes beyond explanatory of the purposes particular State Land which the doubt that dominium over all for which the Provincial government requires “State Land” lies with the continues to vest in the Republic and not with the Councils have been assigned Provincial Councils. In fact the with lands. Those purposes are Republic. relevant portion of Article 33 evident in the special Special Provision 1.2 (d) would read as follows - provisions 1.1, 1.2 and 1.3 of Appendix II. Government shall make “33 (d) - to keep the Public available to every Provincial Seal of the Republic, and to These special provisions also Council State Land within the make and execute under the strengthen the position that Province required by such Public Seal, the acts of State Lands continue to be a Council for a Provincial appointment of the Prime subject located in the Centre. Council subject. The Provincial
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Council shall administer, the absence of a total for the purpose of persuading control and utilize such State subjection of State Lands to the the government to alienate or Land, in accordance with the domain of Provincial Councils. dispose of the land made laws and statutes governing available for a worthy cause. It A perusal of the special the matter. has to be noted that the provision 1.3 also strengthens absence of the word “only” We saw in item 18 of List 1 the view that State Lands do before the word advice that the Provincial Councils not lie with Provincial indicates the non-binding have “rights in and over land, Councils. nature of the advice the land settlement, land tenure, Special Provision 1.3 Provincial Council proffers. transfer and alienation of land, Thus these inbuilt limitations land use, land settlement and Alienation or disposition of on the part of the Provincial land improvement.” These the State Land within a Council establish beyond rights, as item 18 of List I itself Province to any citizen or to scintilla of doubt that the states, are subject to the any organization shall be by Centre continues to have State special provision 1.2 of the President, on the advice of Lands as its subject and it does Appendix II. the relevant Provincial Council in accordance with the laws not fall within the province of The resulting position, on a governing the matter. Provincial Councils. harmonious interpretation of This Court observes that if the the Constitution would be that The provision once again advice of the Provincial when the State makes available emphasizes the overarching Council is non binding, the to every Provincial Council position inherent in the 13th power of the President to State Land within the Province Amendment to the alienate or dispose of State required by such Council for a Constitution that State Land Land in terms of Article 33 (d) Provincial Council subject, the will continue to vest in the of the Constitution and other Provincial Council shall Republic and may be disposed written laws remains administer, control and utilize of by the President in unfettered. In the such State Land, in accordance accordance with Article 33 (d) circumstances I cannot but with the laws and statutes and written laws governing the disagree with the erroneous governing the matter. matter. The use of the definite article “the” before the word proposition of the law which In other words, Provincial State Land in this provision this Court expressed in the Councils in exercising “rights in conclusively proves that the determination on the Land and over Land, land settlement, state land referred to in this Ownership Bill (SD Nos. 26 - land tenure, transfer and provision is confined to the 36/2003) that the power of alienation of land, land use, land made available to the disposition by the President in Land settlement and land Provincial Council for terms of Article 33 (d) has improvement to the extent set utilization for a Provincial been qualified by 1.3 of out in Appendix II (conferred Council subject by virtue of Appendix II. This view by List I) are limited to 1.2. If after having made expressed in that administering, controlling and available to a Provincial determination is patently in utilizing such State Lands as Council a state land for use, the error and unacceptable in view are given to them. In terms of government decides to dispose of the overall scheme of the Article 1.2 State Land is made of this land to a citizen or 13th amendment which I have available to the Provincial organization, the government discussed herein. In the same Council by the Government. In can take back the land but an breath the observations of the the background of this element of advice has been Supreme Court in Vasudeva constitutional arrangement it introduced to facilitate such Nanayakkara v Choksy and defies logic and reason to alienation or disposition. In Others (John Keells case) conclude that State Lands is a the same way the Provincial {2008} 1 Sri.LR 134 that “a Provincial Council Subject in Council too can initiate advice precondition laid down in
Centre for Policy Alternatives 71 PEACE MONITOR Volume 10 / Issue 2 September 2013 paragraph 1:3 is that an Appendix II which provides for Re The Thirteenth Amendment alienation of land or the establishment of a to the Constitution (1987) 2 disposition of State Land National Land Commission by Sri. LR 312 at p 319 referred to within a province shall be done the Government declares in 3.1 the two essential qualities of a in terms of the applicable law that the National Land Unitary State as (1) the only on the advice of the Commission will be supremacy of the Central Provincial Council” is also not responsible for the formulation Parliament and (2) the supportable having regard to of national policy with regard absence of subsidiary the reasoning I have adopted to the use of State Land. It is sovereign bodies. He analyzed in the consideration of this all apparent that Provincial the provisions of the 13th important question of Law. Councils will have to be guided Amendment Bill in order to This reason is a non sequitur if by the directions issued by the find out whether the one were to hold the advice of National Land Commission Provincial Council system the Provincial Council binding and this too reinforces the proposed in the Bills was having regard to the absence contention that State Lands lie contrary to these two of the word “only” in 1.3 and with the Centre and not with principles. He referred to the the inextricable nexus between Provincial Councils. essential qualities of a federal 1.2 and 1.3. Further there are other state and compared them with It is unfortunate that the Court provisions that indicate that those of the unitary state. It is of Appeal fell into the cardinal State Lands lie within the pertinent to recall what he error of holding that the legislative competence of the stated in the judgment. Provincial Council has Centre. Article 154 (G) (7) of The term “Unitary” in Article 2 jurisdiction to hear and the Constitution provides that is used in contradistinction to determine applications for a Provincial Council has no the term “Federal” which discretionary remedies in power to make statutes on any means an association of respect of quit notices under matter set out in List II semiautonomous units with the provisions of the State (Reserved List). One of the the distribution of sovereign Lands (Recovery of matters referred to in that List powers between the units and Possession) Act No 7 of 1979 is “State Lands and Foreshore” the Centre. In a Unitary State as amended. This wrong except to the extent specified the national government is reasoning of the Court of in item 18 of List I. Thus, it is legally supreme over all other Appeal is indubitably due to within the legislative levels. The essence of a Unitary the unsatisfactory treatment of competence of Parliament to State is that this sovereignty is the provisions of the 13th enact laws in respect of “State undivided - in other words, Amendment that resulted in Lands” bypassing the powers that the powers of the Central patently unacceptable assigned with Provincial Government power are precedents that need a revisit Council, on the premise that unrestricted. The two essential in the light of the fact neither the subjects and functions not qualities of a Unitary State are Counsel nor the Bench in the specified in List I and List II (1) the supremacy of the cases cited above has fall within the domain of the Central Parliament and (2) the subjected the relevant Reserved List. The Provincial absence of subsidiary provisions to careful scrutiny. Councils are also expressly sovereign bodies. It does not debarred from enacting Be that as it may, I would mean the essence of statutes on matters coming observe that the national subsidiary lawmaking bodies, within the purview of the policy on all subjects and but it does mean that they may Reserved List. functions which include State exist and can be abolished at Lands in terms of List II is also All these features I have the discretion of the central dispositive of the question adumbrated above features authority. It does, therefore, within whose competence redolent of the unitary nature mean that by no stretch of State Lands lie. Paragraph 3 of of the state. Sharvananda C.J in meaning of words can
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subsidiary bodies be called Councils would have legislative exercised his power of issuing subsidiary sovereign bodies competence to make statutes a quit notice under a law and finally, it means that there only to administer, control and namely State Lands (Recovery is no possibility of the Central utilize State Land, if such State of Possession) Act as amended. and the other authorities Land is made available to the But was it in respect of any come into conflicts with which Provincial Councils by the matter set out in the Provincial the Central Government has Government for a Provincial Council List? Certainly the not the legal power to cope…. Council subject. As I pointed answer to the question must On the other, in a Federal State out above, if and when a respond to the qualifications the field of government is National Land Commission is contained in 1.2 of Appendix II divided between the Federal in place, the guidelines namely administering, and State governments which formulated by such controlling and utilizing a State are not subordinate one to Commission would govern the Land made available to a another, but are co-ordinate power of the Provincial Provincial Council. The power and independent within the Councils over the subject exercised must have been in sphere allotted to them. The matter as interpreted in this respect of these activities. The existence of co-ordinate judgement in relation to State act of the Competent authority authorities independent of Lands. in issuing a quit notice for ejectment does not fall within each other is the gist of the When one transposes this the extents of matters federal principle. The Federal interpretation on the phrase specified in the Provincial Government is sovereign in “any matter set out in the Council List and therefore the some matters and the State Provincial Council List” that is Provincial High Court would governments are sovereign in determinative on the have no jurisdiction to others. Each within its own ingredient necessary to issue a exercise writ jurisdiction in sphere exercises its powers writ in the Provincial High respect of quit notices issued without control from the other. Court in relation to State Land, under State Lands (Recovery of Neither is subordinate to the the vital precondition which is other. It is this feature which Possession) Act as amended. found in Article 154P 4 (b) of distinguishes a Federal from a the Constitution is sadly In the circumstances the Court Unitary Constitution, in the lacking in the instant case. In of Appeal erred in law in latter sovereignty rests only terms of that Article, a holding that the Provincial with the Central Government. Provincial Council is High Court of Kandy had It is my considered view that empowered to issue jurisdiction to issue a writ of the reasoning I have adopted prerogative remedies, certiorari in respect of a quit having regard to structure of according to law, only on the notice issued under State power sharing accords with following grounds – Lands (Recovery of the gladsome jurisprudence set Possession) Act as amended. (a) There must be a person out as above by Sharvannda The order made by the Court of within the province who must C.J. Appeal dated 08.08.12 is set have exercised power under Having adopted the above aside and the order of the analysis and in light of the (b) Any law or Provincial High Court of Kandy structure and scheme of the (c) Any statute made by the dated 25.10.2000 is affirmed. constitutional settlement in the Provincial Council The question of law considered 13th amendment to the (d) In respect of any matter set by this Court is thus answered Constitution, the irresistible out in the Provincial Council in the affirmative. conclusion is that Provincial List. Council subject matter in document source: relation to State Lands would No doubt the Competent supremecourt.lk only mean that the Provincial authority in the instant
Centre for Policy Alternatives 73 PEACE MONITOR Volume 10 / Issue 2 September 2013 SUPREME COURT DECISION ON LAND POWERS 26 SEPTEMBER 2013
JUSTICE SIRIPAVAN
COUNSEL : Manohara de Silva, 3. The Attorney-General, P.C. with Palitha Gamage asiantribune.com Attorney-General’s for the 1st Respondent- Department, Respondent- Colombo 12. Petitioner. Gomin Dayasiri with Palitha In the Supreme court of the Respondent-Respondents Democratic Socialist Republic of Sri Gamage and Ms. Manoli Jinadasa for the 2nd Lanka In the matter of an AND NOW BETWEEN Respondent- Application for Special Leave 1. The Superintendent Respondent-Petitioner. to Appeal against Judgment of Stafford Estate, Y.J.W. Wijayatillake, Court of Appeal dated Ragala, P.C.,Solicitor General 08.08.12 in Case No. CA(PHC) Halgranaoya. Appeal with Vikum de Abrew, S.S.C. And Yuresha Fernando, S.C. For 37/2001 and in the High Court 2. S.C.K. De Alwis (Kandy) of the Central the 3rd Respondent- Consultant/ Plantation Expert, Province Case Respondent-Petitioner. Plantation Reform Project, No. Certi 42/97. M.A.Sumanthiran with Ministry of Plantation Solaimuthu Rasu, Ganesharajah and Rajitha Industries, Dickson Corner Colony, Abeysinghe for the Petitioner- Colombo 04. Stafford Estate, Appellant-Respondent. Ragala, ARGUED ON : 11th July 2013 3. The Attorney-General, Halgranaoya. 17th July 2013 Attorney-General’s Petitioner-Appellant WRITTEN SUBMISSIONS Department, Vs. FILED : By the 2nd S.C. Appeal No. 21/13 Colombo 12. Respondent-Respondent- S.C.Spl. LA 203/12 Respondents-Respondents- Petitioner CA/PHC/Appeal No. 37/2001 Petitioners on :- 24th July 2013 & 23rd HC/CP Certi. 42/97 1. The Vs. August 2013 Superintendent Solaimuthu Rasu, By the 3rd Respondent- Stafford Estate, Dickson Corner Colony, Respondent- Ragala, Stafford Estate, Petitioner Halgranaoya. Ragala, on :- 13th March 2013 & 25th Halgranaoya. July 2013. 2. S.C.K. De Alwis Petitioner-Appellant- DECIDED ON : 26th Consultant/ Plantation Expert, Respondent September 2013 - Plantation Reform Project, BEFORE : Mohan Pieris, Ministry of Plantation P.C.,C.J., The Respondent-Respondent- Industries, Sripavan, J. Petitioners(hereinafter called Colombo 04. Wanasundera, P.C.,J. and referred to as the
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“Petitioners”) sought, special him by the second Petitioner as a preliminary matter. The leave to appeal against the in terms of the State Lands Provincial High Court after judgment of the Court of (Recovery of Possession) Act hearing oral and written Appeal dated 08-08-12 No.7 of 1979 as amended , submissions of the parties, by whereby the Court its order dated 25.10.2000 held (b) A Writ of Prohibition, that the Provincial High Court prohibiting the first and the of Appeal set aside the had no jurisdiction to second Petitioners from judgment of the Provincial entertain the said application High Court dated 25-10-2000, proceeding any further with and dismissed the same. The holden at Kandy. the Writ of Execution evicting Respondent thereafter on him from the land morefully 22.11.2000 preferred an On 31.01.13 this Court granted described in the schedule to Special Leave to Appeal on appeal to the Court of Appeal the petition; and (c) A Writ of thefollowing two questions :- on the basis that the Provincial Mandamus directing the First High Court had misdirected (i) Did the Court of Appeal err and the Second Petitioners not itself by holding that the Court by deciding that the Provincial to interfere with his lawful lacks jurisdiction to inquire High Court has jurisdiction to possession of the said land.The into and to make a hear cases where Petitioners filed their determination relating to dispossession or Statement of Objections on notices filed under the encroachment or alienation of 27.02.96 and took up the provisions of the State Lands State Lands,is/are in issue? position that :- (Recovery of Possession) Act (ii) Did the Court of Appeal err (a) the land in question is No. 7 of 1979 as amended. The by failing to consider whether “State Land”; Court of Appeal delivered its there is a right of appeal judgment on 08.08.12 holding, against the order of (b) the “quit notice” dated inter-alia,as follows :- 07.10.97 was issued by the the High Court dismissing the designated Competent (i) that the subject of “State application in limine for want Authority in terms of Section Land” is included in Appendix of jurisdiction? 3 of the State Lands II of the “Provincial Council th However, at the hearing before (Recovery of Possession) Act List” (List 1) to the 9 Schedule us on 17.07.13, all Counsel No. 7 of 1979 as amended; to the 13th Amendment to the Constitution.(ii) that therefore agreed to confine their (c) the Respondent has no submissions only on the first “State Land” becomes a subject legal basis to invoke the writ of the Provincial Council List question referred to above; jurisdiction of the Provincial thus, this Court did not even though State Land High Court in view of the continue to vest in the consider the second question facts of the case; and in this judgment. Republic.(iii) that therefore, (d) in any event, the High the High Court of the The facts in this application Court of the Province lacks Provinces have jurisdiction to were not disputed by Counsel. jurisdiction to hear and hear and determine Writ It would appear that the determine the matter as it Applications filed to quash the Petitioner-Appellant- relatesto a “State Land”. quit notice issued under the Respondent (hereinafter called provisions of the State Lands and referred to as the The jurisdictional issue with (Recovery of Possession) Act “Respondent”) instituted an regard to the powers of a No. 7 of 1979 as amended.It action in the Provincial Provincial High Court to grant must be noted that the High Court of Kandy seeking, a Writ of Certiorari to quash demarcation between the inter-alia - the quit notice issued under Centre and the Provinces with the provisions of the State regard to “State Land” must be (a) A Writ of Certiorari to Lands (Recovery of clearly identified. quash a quit notice issued on Possession) Act was taken up
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As observed by Fernando, J. in Appendix II sets out as This Appendix imposes the the Determination of the follows: restriction on the land powers Agrarian Services. given to Provincial Councils. Land and Land Settlement (Amendment) Bill [S.C. Special The Constitutional limitations Determination 2/91 and 4/ “State Land shall continue to imposed by the legislature 91], it is not possible to decide vest in the Republic and may be shows that in the exercise of whether a matter is a List 1 or disposed of in accordance with its legislative powers, no List 111 subject by merely Article 33(d) and written exclusive power is vested in looking at the headings in lawgoverning this matter. the Provincial Councils with those lists. The headings may Subject as aforesaid, land shall regard to the subject of “land”. not be comprehensive and the be a Provincial Council descriptions which follow do Subject,subject to the following The restrictions and/or not purport to be all inclusive special provisions:- limitations in respect of the definitions of the headings. utilization of “State Land” as Exclusions may be set out in 1. State land - stated in Appendix II may be summarized as follows:- the detailed descriptions which 1.1 State Land required for the again may indicate that the purposes of the Government in 1. In terms of 1.1 above, the headings are not a Province, in respect of a Government of Sri Lanka can comprehensive. As far as reserved or concurrent subject utilize State Land “in respect of possible, an attempt must be may be utilized by the a reserved or concurrent made to reconcile entries in Government in accordance with Lists I ,II and III of the subject.” However, this could the laws governing the matter. only be done in compliance Constitution and the Court The Government shall consult must avoid attributing any with the laws passed by the relevant Provincial Council Parliament and in consultation conflict between the powers of with regard to the utilization of the Centre and the Provinces. with the relevant Provincial such land in respect of such Council, so that the subject. Therefore it becomes Government and the necessary to examine and 1.2 Government shall make Provincial Council reach scrutinize the relevant Articles available to every Provincial consensus with regard to the contained in the Constitution Council State land within the use of such “State Land”. in relation to “Land” and “State Province required by such Land” . Article 154(G)(1) 2. According to 1.2 above, it is Council for a Provincial Council grants power to every subject. The Provincial Council important to note that a Provincial Council to make shall administer, control and Provincial Council can utilize statutes applicable to the utilize such State land, in “State Land” only upon it being Province for which it is accordance with the laws and made available to it by the established with regard to any statutes governing the matter. Government. It therefore matter set out in List 1 of the implies that a Provincial Ninth Schedule (hereinafter 1.3 Alienation or disposition of Council cannot appropriate to referred to as the “Provincial the State Land within a itself without the government Council List”). On an Province to any citizen or to any making “State Land” available examination of the Provincial organization shall be by the to such Council. Such “State Council List, it would appear at President on the advice of the Land” can be made available by item 18 as follows : relevant Provincial Council, in the Government only in accordance with the laws “Land- Land, that is to say, respect of a Provincial Council governing the matter.” rights in or over land, land subject. The only power casts (emphasis added) tenure,transfer and alienation upon the Provincial Council is of land, land use, land Thus, it is important to bear in to administer, control and settlement and land mind that “land” is a Provincial utilize such “State Land” in improvement, to the extent set Council subject only to the accordance with the laws out in Appendix II “ extent set out in Appendix 1I. passed by Parliament and the
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statutes made by the Provincial powers no exclusive or and land settlement schemes, Council.(emphasis added) independent power is vested in State Land and plantation the Provincial Councils. The agriculture) Here again, the 3. Paragraph 1.3 above, deals Parliament and President have subject relating to “State Land with alienation or disposition ultimate control over them and and plantation agriculture” is of “State Land” within a remain supreme.” excluded from the legislative province upon an advice made competence of Provincial by such Provincial Council. It Shirani A. Bandaranayake, J. Councils. cannot be construed that the too in the Determination of advice tendered by the the Bill titled”Land Article 154 (G)(7) further Provincial Council binds the Ownership” [S.D. No. 26/2003 provides that a Provincial President. However it must be – 36/2003 Determination Council has no power to make emphasized that if the dated 10th December 2003] statutes on any matter set out President after an opinion or noted as follows:- in List II of the Ninth Schedule advice given, decides to (hereinafter referred to as the “With the passing of the dispose of the State Land, such “Reserved List”). One of the Thirteenth Amendment to the disposal has to be in matters referred to in the Constitution, such compliance with the laws Reserved List is “State Lands Constitutional power vested enacted by Parliament.Thus, and Foreshore, except to the with the President was with regard to the extent specified in Item 18 of qualified by virtue of administration, control and List I”. Thus, it s competent for paragraph 1:3 of Appendix II to utilization of “State Land”, the the Centre to enact laws in the Ninth Schedule to the legislative power of a respect of “State Lands” Constitution. By such provision Provincial Council is confined avoiding the powers given to the authority for alienation or and restricted to the extent set the Provincial Councils as out in paragraph 2 above. The disposition of the State land specified in item 18 of the within a province to any citizen Provincial Councils do not Provincial Council List, on the therefore exercise sovereign or to any organization was yet basis that the subjects and vested with the President...... In legislative powers and are only functions not specified in List I subsidiary bodies, exercising effect, even after the (Provincial Council List) and establishment of Provincial limited legislative powers List III fall within the ambit of subordinate to that of Councils in 1987, State land the Reserved List. continued to be vested in the Parliament. Republic and disposition could In view of the foregoing At this stage, it may be relevant be carried out only in analysis, and considering the to quote the observation made accordance with Article 33(d) true nature and character of by Sharvananda C.J. Re The of the Constitution read with the legislative powers given to Thirteenth Amendment to the 1:3 of Appendix II to the Ninth Provincial Councils one could Constitution [(1987 ) 2 S.L.R. Scheduleto the Constitution.” safely conclude that 312 at 320].”The question that “Provincial Councils can only Learned President’s Counsel arises is whether the 13th make statutes to administer, for the First Petitioner drew Amendment Bill under control and utilize State Land, the attention of Court to item consideration creates if such State Land is made 9:1 of the Provincial Council institutions of government available to the Provincial list under the heading of which are supreme, Council by the Government for “Agriculture and Agrarian independent and not a Provincial Council subject. It Services” which reads thus:- subordinate within their must be emphasized that Agriculture, including defined spheres. Application of Appendix II in item 3:4 agricultural extension, this test demonstrates that both provides that the powers of promotion and education for in respect of the exercise of its the Provincial Councils shall be provincial purposes (other legislative powers and in exercised having due regard to than inter-provincial irrigation respect of exercise of executive the national policy formulated
Centre for Policy Alternatives 77 PEACE MONITOR Volume 10 / Issue 2 September 2013 by The National Land According to the said Article, a attribute an intention except Commission. The National Provincial High Court shall that which appears from the Land Commission which have jurisdiction to issue, words used by Parliament. I find includes representatives of all according to law:- Order in the nothing suggesting a general Provincial Councils would be nature of Writs of Certiorari, intention of devolving power to responsible for the formulation prohibition, procedendo, the Provinces; insofar as the of the National Policy with mandamus and quo-warranto three Lists are concerned, only regard to the use of State against any persons exercising, what was specifically Lands. within the Province, any power mentioned was devolved, and under:- “all subjects and functions not There is nothing to indicate specified in List I or List II” that “State Land” which is the (I) any law; or were reserved – thus subject matter of this (II) any statue made by the contradicting any such general application and in respect of Provincial Council established intentions.... There was nothing which a quit notice was issued for that Province; more than a re-arrangement of by the second petitioner was a the jurisdictions of the land, made available to the in respect of any matter set out judiciary.” If powers relating to relevant Provincial Council by in the Provincial Council List Recovery/dispossession of the Government for a (emphasis added) There is State Lands, encroachment or Provincial Council subject. alienation of State Lands are Hence, the said land is not much significance in the use of the words “any matter set out not in the Provincial Council under the administration and List, matters relating to them control of the relevant in the Provincial Council List.” The fundamental principle of cannot be gone into by a High Provincial Council and no Court of the Province. statute could have possibly constitutional construction is Accordingly, I hold that the been passed by the said to give effect to the intent of Court of Appeal erred in Provincial Council with regard the framers and of the people holding that the Provincial to the utilization of such Land. adopting it. Therefore, it is the High Court of Kandy had Therefore, this land does not paramount duty of this Court jurisdiction to issue a Writ of fall within the ambit of any to apply the words as used in Certiorari, in respect of a quit matters set out in the the Constitution and construe notice issued under the State Provincial Council list. Even if them within its four corners.In Lands (Recovery of the Government makes Weragama Vs. Eksath Lanka Possession) Act. The order available State Land to a Wathu Kamkaru Samithiya & made by the Court of Appeal Provincial Council, the title to Others (1994) 1 S.L.R. 293, this dated 08.08.12 is set aside and the land still vests with the Court opined that a Provincial the order of the Provincial State. In such a situation, one High Court could in fact High Court of Kandy dated has to consider whether entertain matters that are 25.10.2000 is affirmed. recovery of possession of State strictly within the purview of Land is a Provincial Council the devolution of powers with The question of law, subject. regard to the subject matter as considered by this Court is set out in the Provincial thus answered in the The jurisdiction conferred Council List. Fernando, J. at affirmative. upon on Provincial High Court page 298 said “As to the with regard to the issue of intention of Parliament in document source: writs is contained in Article adopting the Thirteenth Supremecourt.lk 154P 4(b) of the Constitution. Amendment, this Court cannot
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SUPREME COURT lankaenews.com DECISION ON LAND POWERS 26 SEPTEMBER 2013
JUSTICE EVA WANASUNDERA
In the Supreme court of the 2. S.C.K. De Alwis Respondent-Respondents- Democratic Socialist Republic of Sri Consultant/Plantation Expert, Petitioners Lanka In the matter of an Plantation Reform Project, Vs. application for Special Leave Ministry of Plantation Solaimuthu Rasu, to Appeal against Industries, Dickson Corner Colony, Judgment of Court of Appeal Colombo 04. Stafford Estate, dated 08.08.12 in Case No. CA 3. The Attorney General, Ragala, (PHC) Appeal Attorney General’s Halgranaoya 37/2001 and in the High Department, Petitioner-Appellant- Court (Kandy) Colombo 12. Respondent of the Central Province Case Respondent-Respondents No. Certi. SC. Appeal 21/2013 42/97. SC. Appeal 21/2013 Before : Mohan Pieris, P.C. Solaimuthu Rasu, AND NOW BETWEEN C.J., Dickson Corner Colony, 1. The Superintendent Sripavan, J Stafford Estate, Stafford Estate, Wanasundera, PC,J. Ragala, Ragala, Counsel : Manohara de Silva, Halgranaoya Halgranaoya. PC. with Palitha Gamage for Petitioner-Appellant 2. S.C.K. De Alwis the 1st Vs. Consultant/Plantation Expert, Respondent. SC. Appeal 21/2013 Plantation Reform Project, Gomin Dayasiri with Palitha S.C. Spl. LA. 203/12 Ministry of Plantation Gamage and Ms. Manoli CA/PHC/Appeal No. 37/2001 Industries, Jinadasa and HC/CP Certi. 42/97 Colombo 04. Rakitha Abeygunawardena 1. The Superintendent 3. The Attorney General, for the 2nd Respondent- Stafford Estate, Attorney General’s Respondent- Ragala, Department, Petitioner. Halgranaoya. Colombo 12.
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Y.J.W. Wijayatillake, P.C., had jurisdiction to hear cases state land continuing to be Solicitor General with Vikum where disposition or vested in the Republic. There de Abrew, encroachment or alienations is no doubt that the SSC. And Yuresha Fernando, of state lands is/are in issue President’s power to make SC. for the 3rd Respondent- or where there is a challenge grants and dispositions Respondent-Petitioner. to a quit notice issued in according to existing law M.A. Sumanthiran with respect of a State Land. remains unfettered. The Ganesharajah and Rakitha interpretation in my view to At this point may I quote Abeysinghe for Lord Denning in Magor and be given to all the provisions the Petitioner –Appellant- St. Nallons RDC. Vs. Newport governing this matter as set Respondent. out in the judgments of my Corporation (1950) 2 AER Argued On : 11th July 2013 1226, 1236 CA with regard to brothers is that the exercise 17th July 2013 the onus of a Judge, “We do of existing rights of Written Submissions: ownership of state lands is not sit here to pull the By the 2nd Respondent- language of Parliament and of unaffected but restricted to Respondent-Petitioner Ministers to pieces and make the limits of the powers given Filed : on : 24th July & 23rd to Provincial Councils which nonsense of it. That is an easy August 2013. thing to do and it is a thing to must be exercised having : By the 3rd Respondent- which lawyers are too often regard to the national policy, Respondent-Petitioner that is, to be formulated by prone. We sit here to find out on: 13th March 2013 & 25th the intention of Parliament the National Land July 2013 and of Ministers and carry it Commission. This Court’s Decided On ‘: 26th determination in the Land out, and we do this better by September 2013 filling in the gaps and making Ownership Bill (S.D. No. 26/ sense of the enactment than 2003 – 36/2003) ignores by opening it up to everything else in the 9th Wanasundera, PC.J. destructive analysis.” As such, schedule and errs in its An application was filed for I am strongly of the view that interpretation of Appendix II special leave to appeal from the interpretation and 1.2. The resultant position is the impugned judgment of analysis the provisions in the that the centre would cede its the Court of Appeal dated 08- Thirteenth Amendment to seisin over state lands to the 08.12 wherein the Court of the Constitution should never Provincial Councils except in Appeal set aside the judgment pave way to destruction of some limited circumstances dated 25th October 2000 of any sort. I would refrain from as set out in the judgments of the Provincial High Court. I going into the facts in the my brothers. It is observed have had the benefit of case as they have been dealt that the draftsmen of our reading in draft the erudite with exhaustively in the Constitution have given List II judgments of my brothers, His judgments of my brothers. It primacy leaving state lands in Lordship the Chief Justice and is abundantly clear that land the safe dominium of the His Lordship Justice Sripavan in item 18 cannot include the Republic and only delivered a with both of which I agree. I dominium over State Land specified segments of state would also, however, set down except the powers given over lands in well delineated in brief my own views on the State Land in terms of the situations namely - “rights in single important question of Constitution and any other and over land, land settlement, law which this Court decided powers given by virtue of any land tenure, transfer and and that is whether the Court enactment. The devolution of alienation of land, land use, of Appeal erred in deciding State Land to the Provinces land settlement and land that the Provincial High Court undoubtedly is subject to improvement” and this is what is described as land in
80 Centre for Policy Alternatives PEACE MONITOR Volume 10 / Issue 2 September 2013 list I. As His Lordship the the Constitution (1987) 2 vs Eksath Lanka Wathu Chief Justice has adumbrated Sri. LR 312 went on to explain Kamkaru Samitiya and in his judgment, item 18 of the term unitary in contrast others (1994) 4 Sri.LR 293 List I is itself qualified by with the term Federal. His when he went on to observe paragraph 1.2 of Appendix II Lordship went on to identify that as to the intention of namely Government shall the supremacy of Central Parliament in adopting the make available to every Parliament and the absence 13th Amendment, the Court Provincial Council State Land of subsidiary sovereign cannot attribute the intention within the Province required bodies as two essential except that which appears by such Council for a qualities in an unitary state from the words used by Provincial Council subject. and that subsidiary bodies Parliament and that all The Provincial Council shall should never be equated or subjects and functions not administer, control and treated as being subsidiary specified in list 1 or list II utilize such State land, in sovereign bodies and that it were reserved thereby accordance with the laws finally means that there was contradicting any such and statutes governing the no possibility of a conflict general intention to do matter. This limited cession arising between the Centre otherwise. It is also my view of state lands which must be and other authorities under a that if powers relating to for purposes of unitary Constitution. The recovery/disposition of state administration, control and Federal bodies are co- lands, encroachment or utilization of State lands ordinate and independent of alienation of state lands are made available by the each other. In other words, a not in the Provincial Council government to a provincial federal body can exercise its list, any review pertaining to council subject must be own powers within its such matters cannot be gone understood in the context of jurisdiction without control into by the Provincial High the two important features of from the other. In a Unitary Court. a unitary state when state sovereignty of legislative document source: examining the matters in power rests only with the supremecourt.lk issue. His Lordship Chief centre. I am also mindful of (The Supreme Court decision will Justice Sharvananda in The Mark Fernando J’s be reviewed in the next issue of Thirteenth Amendment to observations in Weragama Peace Monitor)
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Photography by Vikalpa NORTHERN PROVINCIAL COUNCIL PRE ELECTION SURVEY
SEPTEMBER 2013
SOCIAL INDICATOR, CPA
KEY FINDINGS
This poll did not intend to forecast the election results but rather to assess the views of the people with regard to the upcoming election, issues that are important to the community and changes experienced since the end of war.
Job opportunities, improving education, housing and improving roads and transport appear to be the most important issues for people and their community. In the last four years, majority of the respondents (63.7%) believe that development in the Northern Province has somewhat improved while 26.1% say that it has greatly improved. When it comes to personal security, 41.3% state that it has somewhat improved in the last four years while 21.6% say that there has been no change. Almost 40% believe that their livelihoods have somewhat improved while 33.9% say that there has been no change.
When selecting candidates the most important factor that matter to most respondents is that candidates are engaged in community service and village development while honest, suitable candidates with good policies come a close second. Most respondents appear optimistic about the upcoming election with 34.2% believing that the NPC elections will be free and fair and while 24% say they maybe free and fair. Almost 34% of respondents believe that the TNA will win the elections while 21.7% believe it will be the UPFA.
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Leaving aside the period of elections, how much The three most important issues to the local interest would you say you have in politics and community - public affairs in general? 1. Job opportunities 2. Improving education 3. Housing
What is the basic objective of the 13th Amendment?
Strengthen the power of the President against Parliament – 9.7% Devolve more powers to the Provinces – 24.1% 15.1% Make Sinhala an official language of Sri Lanka – 2.6% 29.0% Increase the centralisation of power in Sri Lanka – 2.6 % 3.9% 48.9 % Don’t know/ Not sure – 38.1% 4.4 % No response 26.1%
88.8% of respondents were aware of the Government’s development programme ‘Uthuru Wasanthaya’ (Northern Spring). When asked if they have benefited from the programme, 54.2% said no while 11.6% said they have got roads and 9.8% said they have got electricity.
Uthuru Wasanthaya was launched in 2009 with a focus on three main aspects - security, resettlement and infrastructure development, to be implemented in three stages - a 180 day plan, short term plan and long term plan.
Please state to what extent the following conditions have changed in the Northern Province over the last four years? No change No change No change Greatly improved Greatly improved Greatly improved Somewhat improved Somewhat improved Somewhat improved Greatly deteriorated Greatly deteriorated Greatly deteriorated Don’t know/Not sure Don’t know/Not sure Don’t know/Not sure Somewhat deteriorated Somewhat deteriorated Somewhat deteriorated
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With regard to the upcoming NPC elections, Do you think the NPC elections will be free which party do you think will win? and fair?
33.9% 34.2% 21.7% 11.5% 24.6% 24.0% 7.6% 27.4% 12.2% 2.9%
When selecting your candidate, what is the most important factor that matter to you?
Involvement in community service/village development – 26.4% Honest and suitable candidates with good policies – 26.1%
METHODOLOGY
This poll was conducted among 617 registered voters in the Northern Province. 54.5% of respondents were male and 45.5% were female. The sample was spread across the 5 districts in the Northern Province (Jaffna, Mullaitivu, Kilinochchi, Vavuniya and Mannar) using Population Proportionate Sampling based on the 2010 Census of the Northern Province. Ethnic proportions were accounted for. The sample was stratified across districts and within each district electorates were selected randomly. 60 respondents were selected in each selected electorate using the snowball method due to the current situation in those areas. However, up to the selection of electorates, random sampling techniques were employed. Fieldwork was conducted by 11 field researchers from 5 – 15 August 2013.
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