Mahinda Gunasekera

By E-mail                                                                                January 4, 2016

His Excellency, Maithripala Sirisena
President of Sri Lanka

Copes to: Hon. Ranil Wickremasinghe, PM and Senior Cabinet Minister/MPs

Your Excellency,

I have pleasure in re-submitting the memorandum sent by me on March 28, 2011 to the Secretary of the Commission of Inquiry on Lessons Learnt and Reconciliation wherein I have outlined historical facts relating to the separatist conflict carried out by extremist elements of the Tamil community led by the internationally designated terrorist movement known as the LTTE, aka Tamil Tigers with intent to break up the unitary, sovereign state of Sri Lanka.  I have also proposed revisions to the Second Republican Constitution of 1978 currently in force, with a view to eliminate the district-wise electoral process and make provision for election of representatives for each electorate while permitting outstanding citizens with special qualifications being co-opted proportionate to the total votes polled by each political party.

It is my view that the peripheral provincial councils be replaced by District Councils with scaled back powers whilst providing for sharing of more powers at the Centre thereby creating a more cooperative parliament where the government and opposition parties, majority and minority community representatives, will be called upon to contribute for the betterment of the country in a non-confrontational role envisioned therein.

Sri Lanka, being a civilizational state with a recorded history dating back to over 2,500 years, it is incumbent on the present generation to give due recognition to the unique heritage and culture of the people.  It must be reminded that even the last colonial ruler, namely, the British, undertook to safeguard the ‘Religion of the Budhoo’ in the treaty signed in 1815 known as the Kandyan Convention entered into between Britain to whom power had been ceded by the Chieftains of Sinhale.

Whilst building friendly ties with all nations, we must strive to retain the limited protection enjoyed by us as an island nation, that has helped us to develop our own traditions and customs based on time tested values upheld by our people.  It would indeed be foolish to spend enormous sums of borrowed money on building bridges and/or tunnels to the Indian Sub-Continent
in a region from which numerous invasions have been launched into our territory, and in recent times engaged in destabilizing Sri Lanka by arming, training and funding terror groups including the LTTE which sought to break up the island nation by carving out territory to form a separate state. Even today, the Indian side continues to blatantly violate our territorial waters by sending hundreds of boats to illegally catch our fish stocks and also damage the breeding grounds by resorting to internationally banned bottom trawling methods.  We would also face a much higher problem of illicit immigration from Southern Indian states and furthermore bring back the dreaded Malaria scourge which Sri Lanka’s Health authorities have after a sustained campaign of over 50 or 60 years succeeded in eliminating this disease from our land.  There is certainly no need for a bridge or tunnel to link our country with India when the ocean water separating the two countries is less than 25 miles which is easily navigable throughout the year.  Although the Sri Lankan authorities had not made a formal announcement of the proposed linkages, the Hindu newspaper quoted India’s Minister of Transport as having said that the plans are being implemented and that Sri Lanka’s Prime Minister had given the nod when he last met with India’s Prime Minister Modi in India.  If Sri Lanka claims that the new administration is committed to ‘Yahapalanaya’, then the leaders must be forthright and not be devious, or rule by stealth or subterfuge.

Is the matter of Constitutional revision being handled by the Ministry of Justice, or by a foreign funded NGO with a somewhat negative record which sought proposals from me by email?  I have not responded to the CPA as I am not aware if they have been entrusted with this important task by the Sri Lankan authorities, which need not outsource this matter which concerns the vital interests of all the people of the country.

Yours sincerely,

Mahinda Gunasekera

Encl.
—– Original Message —–

From: M. Gunasekera

To: Secretary, Commission of Inquiry on Lessons Learnt and Reconciliation

Sent: Monday, March 28, 2011 5:20 PM

Subject: Submission to the LLRC

By E-mail                                                                        84 Tambrook Drive

Agincourt, Ontario

Canada M1W 3L9

March 28, 2011

Mr. S.B.Atugoda

Secretary to the Commission of Inquiry on

Lessons Learnt and Reconciliation

Lakshman Kadirdamar Institute of International

Relations and Strategic Studies

24 Horton Place

Colombo 7, Sri Lanka

Dear Sir,

Submission to the Members of the Commission of Inquiry:

I have pleasure in sending the following submission for reference of the Commission of Inquiry and shall be glad if you would kindly bring same to the attention of the Chairman and other Commissioners for their study and consideration.  Although I have been a permanent resident of Canada since 1975, I have been closely following developments in the motherland and actively contributing to the ongoing discussion of national issues in the capacity of the Executive Vice President of the Sri Lanka United National Association of Canada (SLUNA) from 1983 and latterly as its President since 1995.  I have also served as the first General Secretary of the World Federation of Overseas Sri Lankan Associations in 1985-1986 and of recent times been affiliated to the World Alliance for Peace in Sri Lanka (WAPS) headquartered in Melbourne.

Ceasefire Agreement of February 21, 2002:

Whilst the Commission’s mandate is primarily concerned with the Cease Fire Agreement (CFA) of February 21, 2002 and subsequent events, I feel it is important to review prior periods to determine the causes for the ethnic divide and flagrant violations that took place. The CFA itself was poorly drawn up in virtual secrecy without even proper consultations between the President, Prime Minister and Cabinet of Ministers, or discussed in parliament, but put in place with the hope and intention of striving towards a negotiated settlement between the opposing forces comprised of the legally and democratically elected Government of Sri Lanka and the armed militant group led by the Liberation Tigers of Tamil Eelam (LTTE) which had been designated as an international terrorist movement by the UN Security Council Resolution Number 1373 of September 2001, which had unlawfully and through violent means taken possession of parts of the sovereign territory belonging to the legitimate state of Sri Lanka in the northern Vanni region and areas of the eastern province.  This illegal occupation was described as defacto control of territory by the LTTE, and the MOU and CFA drawn up to govern the peace process tended to almost equate the legitimate government of the GOSL with an internationally recognized terrorist group.

The Ceasefire Agreement was a flawed document which allowed the LTTE cadres to enter into government controlled areas whilst barring unarmed representatives of the GOSL from entering the illegally controlled areas held by the LTTE.  Even the requirement to keep the A9 Highway open for through traffic from the south to the north and vice-versa was obstructed by the LTTE which installed barriers at the entry points to their areas, and even resorted to extorting funds from civilians passing through.  It was a lopsided agreement prepared by the Norwegian facilitator with input from the LTTE’s theoretician and adviser, the late Anton Balasingham who was a close associate of the  Norwegian representative and cabinet minister, namely Eric Solheim, who was the key architect of the failed peace process put in place in 2002.

Even though the Government of the day and the Norwegian facilitator had stated that the LTTE have signaled their willingness to give up their claim for ‘Eelam’, it is clear from the following quote of Prabhakaran’s speech published in the TamilNet on November 27, 2001, wherein he reiterates the same goal of a separate state using a different set of words which have equally serious implications:

“The Tamil people want to maintain their national identity and to live in their own lands, in their historically given homeland with peace and dignity.  They want to determine their own political and economic life; they want to be on their own.”

Despite the selection of Norway as the peace facilitator, establishment of the Sri Lanka Monitoring Mission made up of members of the four Nordic countries and the creation of a high powered overseeing body named the Co-Chairs of the Peace Process represented by the USA, EU, Norway and Japan, there was no effective machinery to penalize the violator of the accord except for keeping scores of the violations.  The SLMM reported that there were 7300 complaints against the LTTE between the period 2002 to 2006, and of the investigations carried out at the time, they ruled that the latter had violated the CFA on 3471 occasions including the killing of over 400 members of the security forces, political leaders such as the late Hon. Lakshman Kadirgamar, former Minister of Foreign Affairs, and other civilians, whilst there were 1313 complaints against the government’s armed forces mainly relating to obstructions at checkpoints of which 162 were deemed as violations of the CFA  In addition, the UNICEF reported the abduction and forced conscription of nearly 6000 Tamil youth, many under the age of 15 years which falls into the category of a war crime.  Conscription of underage Tamil youth by the LTTE continued in spite of repeated undertakings given to the Special Rapporteur, Olara Otunnu of UNICEF of discontinuing this practice and releasing the youth to the care of UNICEF for restitution of the child soldiers to their respective families.

Furthermore, the LTTE which agreed to international mediation during the ceasefire period never negotiated in good faith, but continued to build its fighting forces and amass an enormous stockpile of weapons including a squadron of night bombers, showing their intent of establishing their mono-ethnic, separate Tamil racist state by grabbing terrain extending to over 1/3^rd of the island’s land area bounded by 2/3rd of the coastline by force of arms.  The international community which supported the peace process publicly intimated their firm and unwavering backing for Sri Lanka’s territorial integrity whilst their policies tended to slant towards a two state solution or in the alternative a federal arrangement which would serve as a stepping stone to separation or division into two states.  The powerful foreign powers engaged in the peace process funded both local NGOO as well as the INGO serving in Sri Lanka to carry out their end strategy by promoting federalism that would provide a platform for separation by adopting the Quebec Option by merely holding a referendum in the region opting for self-determination and independence.  They later discovered that federalism was not acceptable to the people of Sri Lanka and deemed the ‘F’ word as intimated by the Hon. Bob Rae a senior Liberal Party politician of Canada who sought to push federalist ideas and a federal structure through the Canadian Forum of Federations of which he was the President, in partnership with the Sri Lankan Centre for Policy Alternatives heavily funded by Canada and other western countries.

Sri Lanka’s newly elected President, H.E. Mahinda Rajapakse called on the Norwegian facilitator to arrange for a renewed round of peace talks in November of 2005, to which the LTTE consented, but did not come to the table and instead used their visits to Geneva and Oslo to meet with their international representatives to seek enhanced funds to pursue their military option.  In fact, the Human Rights Watch report dated March 15, 2006, titled ‘Tamil Tigers Extort Diaspora For Final War Funds’ confirms the fact that the LTTE was merely going through the motions and buying time to rebuild their forces and weapons stockpile for resumption of hostilities.  The following quote taken from the News Release issued by HRW confirms the LTTE’s decision to adopt the military route to achieve their goal of a separate state:   “ In late 2005, the Tamil Tigers launched an aggressive and systematic fundraising drive in Canada and parts of Europe to pressure individuals and business owners in the Tamil diaspora to give money for what they called the “final war” between the Tamil Tigers and the Sri Lankan government. The fundraising campaign coincided with an escalation of LTTE attacks against Sri Lankan forces that threatened Sri Lanka’s four-year-old ceasefire.”

Continuation of the CFA any longer would have seriously jeopardized Sri Lanka’s territorial integrity, her ability to function as a viable independent sovereign state, facing division and hostile borders resulting in unending military incursions and war readiness to defend the remaining land and territorial waters.  The Sri Lankan regime called the LTTE’s bluff in time and successfully carried out a military action to defeat the terrorists and regain the country after a three decade long period of death and destruction, whilst at the same time rescuing the 300,000 plus Tamil civilians who were held hostage by the LTTE and upholding the right to life of all her citizens who had earlier been subjected to claymore mine attacks, train, bus and shopping centre bombings, suicide bomb attacks, ethnic cleansing massacres and every form of violence on a daily basis by these very terrorists. 

Separatist aspirations and political maneuvering by the Tamil community:

The propaganda carried out by the Tamils tend to claim that their desire to establish a separate Tamil state began after the adoption of Sinhala as the official language in 1956, which they say resulted in discrimination of Tamils in education and employment.  On the contrary, the separatist cries of Tamils in South India represented by the ‘We Tamil Movement’ and the Tamil Justice Party’ around 1918 seeking a separate country for the Tamils to be called ‘Dravidastan’ had its echoes in Sri Lanka (then Ceylon) as well.  The Sinhala Language Act introduced in 1956 was to take effect in 1961without depriving Tamils of education in the mother tongue up to the university level.   In the interim, ‘The Reasonable Use of Tamil Language Act’ was passed in 1958.  As the Tamils pointed out the shortcomings of this legislation, moves were made in 1965 to provide further concessions in the operation of the language regulations.  Even though the Official Language Act recognized the language spoken by 76 percent of the population, the Tamil minority felt shortchanged, resulting in the further enhancement of Tamil by the Second Republican Constitution of 1978 making Tamil a National Language and language of administration in areas with a Tamil speaking majority, thereby providing far more linguistic rights than that enjoyed by French in bi-lingual Canada where the French Canadians are recognized as one of two founding nations.  Tamil has since been elevated as an official language on par with Sinhala, and it is hoped that the Tamil community will cooperate with the authorities in its implementation which they abandoned during the 33 year long violent separatist campaign which ended in 2009.

After the British took possession of the Dutch territories of Ceylon in 1796, they openly implemented a discriminatory policy by providing better educational facilities to the Tamils in their main areas of residence in the north and east, with few and far between in the Sinhala areas under their divide and rule policy.  The Tamil community benefited greatly from the favored treatment extended to them by the British colonial administration, which also gave preference to Tamils in employment in the public service of Ceylon but also in the British colony of Malaya.  As a result, the Tamils came to dominate the public service, the commercial and private sector as well as the professions holding a far greater ratio of jobs than any other community in Sri Lanka.  They used their new found dominant position to favour members of their community in the filling of vacancies ensuring their continued dominance which was tantamount to discrimination of other communities in the island.

When the British government was taking steps during the second world war to grant independence to many of her colonies in South Asia, the Tamil leaders of Sri Lanka sought 50 percent of the seats of the new parliament of independent Sri Lanka to be reserved for the minorities describing it as balanced representation allowing for communal parity, whilst the Sinhalese comprising 76 percent of the population was required to contest and win the balance 50 percent of the seats of the legislature.  This was apparently a move to retain the dominant place gained on account of the largesse extended by the colonial ruler to the Tamils numbering 12 percent, even in post-independent Ceylon.  Lord Soulbury who headed the Commission to hear the views of the British subjects in the island rejected this request which met with severe disapprobation by the commissioners. They stated that “any attempt by artificial means to convert a majority into a minority is not only inequitable, but doomed to failure”

Tamil cooperation with the majority community following the grant of independence from Britain was short lived, as a section of the Tamils led by Mr. S.J.V. Chelvanayakam broke away from the Tamil Congress as early as 1949 to form what they called the ‘Ilankai Thamil Arasu Kadchi’ (Lanka Tamil State Party) where they conjured up a Tamil Nation, but disguised it in English as the ‘Federal Party’ which would stay within the Sri Lanka state, masking their hidden agenda of establishing a separate state for the Tamils.  They also claimed that there was no state without Tamils, but that the 70-80 million Tamils lacked a state of their own.  The reasons for adopting the separatist path were other than Sinhala being made the official language or their perceived discrimination which were negotiable, but the hidden motives of using the combined resources available to the Tamils worldwide including the power base of Tamilnadu where 55 million Tamils lived just across the narrow Palk strait to break up the tiny island state of Sri Lanka to create their dreamland of “Tamil Eelam”.  Towards this end, they carried out a systematic campaign to distort the history of the island’s people by claiming to be the original inhabitants and misleading the Tamil youth and the rest of the community into acts of civil disobedience, smuggling of weapons which led to 30 plus years of violence including suicide terrorism for a cause based on deceit and dishonesty.

Post–Military defeat of the LTTE:

Following the military defeat of the LTTE in May 2009, the Sri Lankan authorities were faced with the enormous task of registration, providing housing, food and water, medical, educational and other facilities to the nearly 294,000 Tamil civilians rescued from the illegal control of the Tamil Tiger terrorist cadres who had forced them to abandon their villages and move with the retreating LTTE fighting units to be exploited for their labour, conscripted to replace fallen cadres and to be herded behind the high earthen dams and deep ditches put up to bolster their defenses, and to also serve these terrorists as a human shield.  There were also the 11,000 odd former Tiger cadres that had surrendered to the security forces to be held separately and processed for re-habilitation and prosecution of charges if any, and in addition the task of screening the IDPs to detect any cadres who were hiding amongst the displaced civilians.

Although the GOSL estimated their ability to de-mine the villages, repair and rebuild homes, restore the infrastructure and administrative set-up and re-settle the IDPs within the space of six months, it proved to be a much more difficult task as the LTTE had laid almost 1.5 million landmines including explosives laden booby traps, and had also removed the roofing sheets of the buildings which suffered heavy damage through exposure to the elements.  Nevertheless, they succeeded in re-settling about 95 percent of the IDPs within a space of 18 months to re-engage in farming and fishing activities. The GOSL was creating the ground for both private and public sector livelihood ventures that will help sustain the newly re-settled Tamil civilians that had been forced to wander across the Vanni from west to east for a period in excess of two years under orders of the LTTE.  The UN and leading members of the international community were complaining about the delay in re-settling the displaced Tamil civilians probably at the behest of the Tamil Diaspora who were being wooed for their votes in their respective electorates, despite the fact that the USA, the world’s richest nation is still grappling with the re-settlement of the victims of Hurricane Katrina even after a lapse of five years.

Reconciliation Process to bring about Peace and Harmony in the wider Community:  

Whilst reconciliation is foremost in everyone’s mind, it is not something that could be achieved though legislation or by government action alone, as it is a multi-way process where the parties concerned both as individuals and communities should reach out and touch the other in meaningful ways that will lead to healing and reconciliation.  It is not a quick process but that which is achievable on an incremental scale both in the short and long term.   No community can be considered blameless.  All have suffered in different ways with some perhaps more so than others because of the situation faced by the country during the 33 year insurgency of the militant Tamils led by the LTTE.

The members of Sri Lanka’s Security Forces that made it possible for the suffering mass of displaced Tamil civilians to escape from the control of the Tamil Tiger Terrorists who forcibly confined them within the high earthen dams put up in the narrow 14 sq. km strip of land in the Puttumatalan area to be used as a human shield for their final stand, not only breached these well defended dams under unrelenting fire risking their life and limb, but also helped the elderly and weak among them by carrying them to safety and even handing over their meal rations to the freed IDPs.  We also saw these brave men and women of the Sri Lankan Army hurriedly providing medical attention to those civilians who had suffered bullet wounds as the LTTE trained their guns on these Tamil people who abandoned their tormentors to reach the safety of government controlled territory. They further displayed their compassionate and kind ways by preparing warm meals to feed the mass of people that sought refuge amongst them in the midst of doing battle with the vicious enemy.  The Tamil IDPs who were so cared for should realize that their welfare was foremost in the minds of all Sri Lankans who rushed to their aid with stocks of food, clothing, bottled water, medicine, toys, and other essentials to comfort them in their time of need.

It must also be stated here that the people of the south almost entirely from the Sinhalese community rallied to fill over 14 railway goods carriages hitched on to the train from Matara in November 2008 specially named the ‘Brotherhood Train’ organized by the Thawalama Development Foundation, with food, water and other essentials valued at over Rs.35 million for delivery to the 40,000 Tamil IDPs provided refuge at Vavunia at the time.  Among the donors were very poor persons who delivered a pound of rice, a packet of sugar or a coconut, which was a substantial part of their day’s income in order to help their fellow countryman from the Tamil community who were in dire straits awaiting re-settlement.  We too contributed money for this most noble act of goodwill from the Sinhalese of the south to the displaced Tamils of the north.  

We for our part, as a patriotic overseas association, namely, Sri Lanka United National Association of Canada (SLUNA) also shipped two lots of medicine valued at $70,000.00 obtained from Relief Aid International and Health Partners International of Canada, which we shipped by air in February and March 2009 to be dispensed to the IDPs via the Government Medical Officers Association of Sri Lanka.   We also provided school supplies to Tamil children attending a newly built junior school at Shanthimale in the eastern province, and 500 mosquito nets to the Tamil villagers of Omanthai. Whereas, the almost million members of the comparatively affluent Tamil Diaspora living in the west only contributed monies to the LTTE to purchase explosives and weapons to kill and maim the people of Sri Lanka including the abduction and forced conscription of underage Tamil children into the Tiger fighting units, but little or nothing for their own people who had been dispossessed by their heroic Tamil Tigers.

A ‘Truth Commission’ like in South Africa is meaningless with the elimination of the LTTE leadership and them not being present to admit to their wrongdoing.  Regurgitating the unsavory aspects may open up new wounds instead of healing the heavy hearts which is required at the moment.  It is not a good guys versus bad guys issue, but acceptance of the fact that decisions made from time to time are not necessarily perfect and meeting the aspirations of all competing sectors.  The nation has to adopt a forgiving and tolerant attitude to seek well balanced policies in attempting to rectify any shortcomings while ensuring that all citizens are secure from harm and treated justly.  Action that may be taken by the authorities on an urgent basis in assuring the people, especially the minorities who loudly proclaim injustices and discrimination, would be as follows:

1. a) State authorities should without delay take steps to have a full complement

of competent staff to implement the language laws in the Statute Book;

1. b) Take immediate action to appoint independent Commissions made up of

competent and distinguished persons to administer the Police Service,

Public Service, Judicial Service, and Elections Department in a manner

that would win the confidence of the public at large.

1. c) The leaders should lead by example, by adopting simple lifestyles and

taking all necessary steps to reduce graft, corruption and waste.

1. d) Take steps to curb political interference in public life and ensure that due

process will be speedily applied in accordance with the laws of the land.

1. e) Scale down the level of politicization and resultant political rivalry which

unduly pits one against the other within society, by at least allowing for the

election of members of local government bodies based on individual

preferences instead of on party lines for each ward or electorate without the

need to confront each other on party lines on a district basis, as prevailing in

most countries.

In addition to the above, it is necessary to have the reputed historians, archaeologists and other qualified persons of related disciplines from all communities who are knowledgeable on the history of the island of Sri Lanka and her people to come together and determine the real and unadulterated history. This is necessary, as distorted versions invented recently by separatist Tamils have not only misled the members of the Tamil community to seek to violently break-up Sri Lanka to establish what they believed was their homeland of “Eelam” which had been usurped by the majority Sinhalese community who arrived at a later date and grabbed their land, depriving them of their ancient homeland.  In fact, the very word “Eelam” according to the Tamil Lexicon published by the Madras University states that same had been derived from the Pali word SIHALA meaning Sinhala, which was Tamilised as SIHALAM ( or SINKANAM) and later shortened to “ILAM”, also spelt as “EELAM”. The authority on Tamil language and history, Prof. S. Krishnaswamy Aiyangar of the Madras University stated on the 29^th of August 1926, writing the foreword to Mudliyar C. Rasanayagam’s book titled ‘Ancient Jaffna’ that “Eelam” did not mean the homeland of the Tamils, but meant the Land of the Sinhalese.  Not only should the correct history be presented to the people but it should be taught to all as it will give an insight to one’s roots and bring about an understanding of our past and place in the evolving world.

Certain Tamil leaders and some foreign powers including India have said that a meaningful power sharing arrangement which gives the Tamils a due place must be put on the table in order to create the stage for reconciliation to take place between the majority Sinhalese community and the minority Tamils.  Some want the 13^th Amendment introduced as a result of threatened military intervention by India bringing about the infamous Indo-Lanka Accord of 1987 (where India failed to fulfill her obligations) fully implemented, whilst several Tamil leaders seek 13 A Plus, and yet others advocate a federalist model.  The Tamils who today number around 8 percent of the total population following the large scale migration of over a million Tamils to the west and other developed countries, have moved out of the north and east with almost 54 percent now living in the rest of the country with a high percentage in and around the capital city of Colombo, in mixed ethnic surroundings.  The Tamils also form the largest single ethnic group in the capital city.  Whilst the voluntary relocation of the Tamils is welcome, it is best to similarly arrange for other communities to be settled amongst the Tamils of the north and east in order to form similar multi-ethnic societies that will live side by side as in the more densely populated areas of the south to build better human relations leading to peaceful co-existence of the various ethnicities.

13^th Amendment lacks consent of the people

The 13^th Amendment which lacks the consent of the people has given rise to Provincial Councils which virtually overlap the areas covered by the Centre where political patronage has resulted in a burgeoning bureaucracy that is both wasteful and a drain on the economy.  Devolving power to provinces created by the British colonial administration, and permitting two or more provinces to merge to form a larger unit as allowed by the 13^th Amendment, leaves room for those who took up arms including suicide terrorism in pursuit of a separate state to similarly use the powers set out in the list to achieve the same objective in the not too distant future bringing forth worse chaos and violence in its wake.

Adverse impact of the 13^th Amendment:

The adverse impact of the laws promulgated under the 13^th Amendment which were adopted without the due consent of the people following the Indo-Lanka Accord of 1987 need to be fully reviewed. These laws aim to create a constitutional structure similar to that prevailing in India which is a vast land with numerous disparities unlike that of Sri Lanka.  These laws were hastily drawn up at the insistence of our giant neighbour under the threat of military intervention and division of our country on ethnic lines based on pressure from Tamilnadu, as it was their perspective that the Tamil minority was being discriminated against by the majority Sinhalese community that held electoral power.

Needless to say,  the 13^th Amendment had not previously been envisaged by any of the political parties and therefore was not part of the party manifestos presented to the people at the general elections held earlier.  These laws were adopted by the people’s elected representatives in a most unethical manner, where the then head of the government, President J.R. Jayawardene, resorted to coercion by threatening to use the undated letters of resignation that he had earlier obtained from each and every member of the ruling party’s caucus to remove them from elected office as a member of parliament in order to have them vote in favour of these controversial laws.  In matters affecting constitutional changes which tend to establish multi-faceted structural changes, it is the norm to firstly seek the consent of the people and thereafter to even allow a free vote to all parliamentarians   Our association (SLUNA) along with others challenged its adoption in the Supreme Court where a split decision resulted, leaving the Chair of the Panel of Judges whom I believe was Justice Parinda Ranasinghe to take the unusual step of casting his chairman’s vote in favour of the Bill relating to the 13^th Amendment, allowing its passage into the Statute Book.

I firmly believe that devolution of powers as contained in the 13^th Amendment to provinces whose residents are predominantly of a single ethnic community is bound to give rise to separatist tendencies especially in the northern and eastern regions where the Tamil extremists engaged in an armed confrontation including suicide terrorism to seek a separate state during the past three decades.  National cohesiveness too will seriously suffer with provincial boundaries forming artificial barriers with time, thereby impeding

national identity and national development.  The poorly and hastily crafted legislation will also give rise to inter-provincial as well as province versus centre litigation costing the nation unnecessary expense and waste of valuable time.  These provincial legislatures which are superfluous to our needs will only add another level of government plus an enormous bureaucracy which will be a major drain on the public purse as well.  Furthermore, with the majority of Tamils residing outside the northern and eastern provinces, devolution to provinces will not resolve their perceived grievances or aspirations as a constituent ethnic group within Sri Lanka’s multi-ethnic fabric.

The division of powers between the province and central authority also leaves room for much contention, especially powers in the provincial list covering the areas of ‘police and public order’, ‘matters re land’, ‘irrigation’, ‘ancient/historical monuments’,  ‘mines and mineral development’, and in the shared or concurrent list, those powers concerning ‘acquisition/ requisition of property’.  This multi-level power sharing structure leads to a waste of resources and personnel, and at the same time, generates a multitude of procedural rules and regulations or a maze of red tape that needs to be understood and followed by the general public.  Re-establishing the unity and sovereignty over the national territory and extending the writ of the state to all parts of the country after the great sacrifices of blood, sweat and tears by our sons and daughters could come to naught if we embark on the treacherous route of devolution and regionalization.

An Alternate Constitutional Arrangement:

The present presidential system where a large proportion of power has been vested in a single Executive President who is also the Commander of the Armed Forces could be of use during a period of internal strife, where these powers could be effectively used to combat the insurgent forces and bring about peace, order and stability in the country.  As the aim is to see beyond the era of armed conflict that has been ended, it is best to opt for a Westminster style parliament where a Prime Minister and Cabinet of Ministers would govern in consultation with the elected representatives and voting public.

Broadly speaking, most are fully in favour of retaining a Unitary Structure of governance as opposed to a Federal, Quasi-Federal based on the Indian model, or other multi-level structure where powers need to be devolved to the semi-autonomous units that are to be set-up for various regions within the tiny island of Sri Lanka, which is the common homeland of all her people.  Federal or quasi-federal systems have been successful to some extent where countries such as Canada, the United States of America, and India with an extensive landmass, involving the coming together of independent colonies in the first two countries, and the weaving together of disparate ethnic and linguistic groups as found in India, to form a single federal state or country.  Federal systems where limited powers have been devolved to linguistic regions in Switzerland and Belgium too would not fit into Sri Lanka’s demography which is multi-ethnic and multi-religious in character, except for the northern province which has been ethnically cleansed of the Sinhala and Muslim communities who were driven out of the region after 1981.  Furthermore, Sri Lanka is a tiny island which cannot afford to create artificial regional barriers based on language or ethnicity that tend to divide the nation state, as her pluralistic society and territorial integrity could best be safeguarded via a locally crafted unitary system of governance that improves on the existing arrangement which is well understood by the people at all levels.

Enhanced Sharing of Power at the Centre:  It is my firm belief that a revised arrangement to implement an enhanced level of sharing of power at the Centre between the various ethnic communities that make up the demographic mosaic of the population of Sri Lanka could take the nation from its present tug-of-war for extensive or limited devolution to an area of amity, harmony and stability.  The critical ingredient that the legal draftsmen should take into account is to ensure that the minorities also play a role in the decision making process by contributing to the initiation and development of policy, but also, allow them to play a role in the implementation and monitoring of such policies.  This would not only eliminate the alleged charge of majoritarian rule by the minorities that claim they are kept away by the system of governance which is dominated by the majority Sinhala community but also allow them to play a constructive role in the day to day governance.  Such a scheme of power sharing would help to compensate for the corresponding adjustment of powers not duly conferred by the people to the provinces as envisaged in the process adhered to at the time of adopting the 13th amendment.

In order to arrive at the goal of enhanced sharing of political power at the centre, I would recommend a blend of the Westminster model with the old Committee System that prevailed during the State Council days prior to independence, to be able to accommodate the minorities in all aspects of governance entrusted to the elected legislature.  I think that the electoral process should be revamped incorporating the following steps to achieve the desired objective:

1. a) All political parties should nominate their candidate for each electorate as in the past instead of nominating a whole slate for each district. This would eliminate the need for each candidate to seek ‘preferential votes’ from the entire district at a great deal of time, effort and expense, thereby drastically reducing the total election budget needed by each candidate to a manageable level.

This would in addition help to reduce the tendency for elected representatives to acquire funds or other assets through corrupt and illegal means to recover the large sums that they would otherwise spend to seek preferential votes district-wise at the election.

1. b) The bonus places or additional seats given to nominees in the National List to which the political parties become eligible could still be determined based on the overall voting strength of each party.  These additional seats could preferably be    reserved for enlisting competent persons who are recognized for their outstanding knowledge, technical skills or volunteer services to the larger community.

1. c) The senior positions in government that may be reserved for members of the

minority communities are given below:

• Minister of Tamil Language and Culture
• Deputy Minister of Disaster Relief and Re-Settlement
• Deputy Minister of Community Development and Social Inequity Eradication
• Deputy Minister of Education
• Deputy Minister of Health Care and Nutrition
• Deputy Minister of Local Government and District Councils
• Deputy Minister of Justice and Law Reform
• Deputy Minister of Plantation Industries

1. d) It is also recommended that Parliamentary Adjunct (or Consultative) Committees comprising a minimum of 3 or a maximum of 5 elected representatives be

co-opted from all parties including those in the opposition by a formal ballot in parliament, to assist the Minister and Deputy Minister of each and every ministry.  They may initiate policies for review by the Minister and the Deputy Minister, and also assist the Ministry in monitoring the implementation and assessing the progress of adopted plans.  This Adjunct Committee may elect a Chairperson and coordinator on a rotational basis, and also have the assistance of a ministry official to provide secretarial services.  Each elected member will now be able to make a positive contribution whilst retaining the right to participate in the debates as in the past, with no special remuneration other than a nominal budgetary allocation for such committee work.

They will form a parliamentary support group to the ministry, but will not have any authority to give directives to the ministry officials other than the special officer assigned to assist them.  This will enable members of the minority communities to work with others and play a role in the development of policies and implementation thereof, allowing them the opportunity to participate in the day to day governance in matters of state.  Such an arrangement will foster better relations between those in the ruling party and the opposition groups, helping to move from the present confrontational relationship to one that will generate cooperation in the national interest.

Replacing Provincial Councils with new Regional District Councils:    The proposal to share enhanced power at the Centre also envisages a scaling back of devolved powers to the regions as existing at present under the Provincial Councils Act, as the latter structure has proved to be more of a burden than a boon to the ordinary citizens.

This calls for the replacement of the Provincial Councils Act by a Regional District Councils Bill that would provide for an adequate extent of devolution of powers to the Regional District Councils.  The members of the District Councils may be elected by a separate election for a term of up to 3 years, or picked from among local city, town and village council members who will declare their intention to serve both locally as well as at the district level when they present themselves as candidates for the local council.  Each district council will be headed by a District Chairman who may be picked by the voting public or by the elected councillors.  The District Secretariats established by the Central Government could be suitably modified to serve the needs of the District Councils, thereby economizing on staff usage, facilities and administrative expenses.

Some of the powers to be devolved to the District Councils amongst others to be determined by a competent authority, are listed below for your perusal:

• Licensing of Automobile Vehicles in the district
• General Health and Sanitation
• Local power generation
• Minor roads and bridges
• Administration of District Courts, Family Courts and Local Dispute Arbitration
• Junior Technical Colleges
• Primary School Education
• Special Police to handle Court duties, Traffic control and non-criminal offences
• Welfare services
• Sports and Cultural activities
• Small scale industries
• Agrarian services to localized farming communities

The District Councils may hold an Annual Conference to discuss issues of common interest, with a view to bringing same to the attention of the Central Government.  Such conferences could also determine the composition of Special Deputations to represent the districts in talks with the Centre aimed at resolving issues in dispute.

Decentralization of State Services:   De-centralization of state services from the capital city to other towns in all parts of the island will not only help to bring qualified personnel to outlying areas, it would also act as an incentive to the development process creating a demand for housing and other services.  The state services that are so de-centralized should be done selectively to areas that would benefit most, based on the available resources and special needs of the area.

Human Rights Administration:  The Human Rights Commission should be empowered to speedily investigate all complaints and take appropriate action on an expeditious basis.  It is also best to ensure that at-least one member of the Investigating Panel is from the same ethnic, linguistic or religious background as the complainant and the alleged offending party, in order to build confidence in the system.

In addition to the existing bodies set up by parliament such as the Human Rights Commission, it is felt that a useful role could be played by an Independent Ombudsmen who may be authorized to look into complaints of abuse by the state sector or other establishment or person, as a large segment of the people are too poor to litigate or seek  redress for wrongs done or perceived to have been done against them.  At the same time,  steps should be taken to ensure equality of all citizens before the law and grant equal protection to every citizen by re-visiting the Fundamental Rights Chapter.

Conclusion:  I strongly believe that this submission contains valuable ideas that could be incorporated in drawing up a new constitutional framework creating a workable arrangement which will help the minorities to play an important role in the day to day governance, encourage the establishment of an atmosphere of co-operation amongst competing political forces, whilst making it a home made solution that will remove the threat to the sovereignty and territorial integrity faced by the nation from armed separatist groups including what is left of the internationally designated terrorist group known as the Liberation Tigers of Tamil Eelam.  I believe that the proposed model will help the various communities to share the tasks of government and benefit equally from the fruits of the unitary state of Sri Lanka, without seeking a separate future that calls for establishing artificial provincial barriers leading to the tearing apart of the island homeland.  I have also emphasized the need for improved human rights monitoring and at the same time having an Ombudsman to befriend the needy who are too poor to seek redress through the normal channels.  Also, to build a society that is free from corruption, the lead needs to be taken at the top, and it must necessarily flow from the highest echelons by each and every person committing themselves to lead lives that are free from exploitation and misappropriation.

I trust that the proposals contained above would be studied carefully and due consideration given to all aspects including the crafting of a new constitution for the people of our motherland.

Yours very truly,

Mahinda Gunasekera

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