By Kalyananda Tiranagama Executive Director Lawyers for Human Rights and DevelopmentCourtesy The Island
It appears that President Ranil Wickremasinghe, all along his political career, has acted in the belief that he can bring about national unity, true national reconciliation among different communities and find a lasting solution to the ethnic problem only by granting more and more concessions to the racist political parties with separatist agendas in the North and the East and complying with their demands.
In 2002, as the Prime Minister, Wickremesinghe signed, without the approval of President Chandrika Kumaratunga, an Oslo-brokered ceasefire agreement with the LTTE, allowing the LTTE to have internal self-administration in the areas under their control in the North-East. In 2005, he supported the move of the Kumaratunga government to sign a Memorandum of Understanding with the LTTE for the establishment of a Post-Tsunami Operational Management Structure (P-TOMS Agreement) under LTTE leadership for carrying out reconstruction work in the six Tsunami affected Districts in the North-East. In 2006, he assured the TNA of support for the re-merger of Northern and Eastern Provinces if a motion was brought for that purpose in Parliament. During the war for the liberation of the North-East from terrorism, instead of supporting the war effort, his party tried to derail the war effort by abstaining from voting for the extension of the Emergency and making derogatory remarks about the victories of the armed forces.
Common Dream of Wickremasinghe and Sampanthan
In his Address to Parliament on February 8, 2023 delivering the Policy Statement of the Government, President Wickremasinghe disclosed a common dream Mr. Sampanthan and he had been trying to realise over the years thus:
‘‘Both Hon. R. Sampanthan and I were elected to Parliament in 1977. We both have a common dream, which is to provide a sustainable solution to the ethnic problem in Sri Lanka while we are both in Parliament. Ever since, we have been discussing that dream and have been making efforts towards its achievement. All previous attempts have failed, but we wish to succeed this time. We expect your support to this end.’’
Before proceeding to examine the dream of the President, let us examine the dream of Sampanthan and the political organisations led by him: the Tamil United Liberation Front (TULF) and the Tamil National Alliance (TNA). This dream remained continuously unchanged since the founding of the Ilankai Thamil Arasu Katchi (Federal Party) in 1949. The name of the Party – Ilankai Thamil Arasu Katchi (ITAK) or (Tamil State Party of Ceylon) itself reflects this dream. This dream was reiterated in various resolutions passed at their conferences and public declarations at different times.
Dream of Sampanthan and other Tamil leaders
Trincomalee Resolution of ITAK – April 1957
The Resolution passed at the first National Convention of the ITAK held in Trincomalee in April 1957 elaborates on this dream citing the components this dream consists of:
Inasmuch as it is the inalienable right of every nation to enjoy full political freedom without which its spiritual, cultural and moral stature must degenerate and inasmuch as the Tamil Speaking People in Ceylon constitute a nation distinct from that of the Sinhalese by every fundamental test of nationhood, firstly that of a separate historical part in this island at least as ancient and as glorious as that of the Sinhalese, secondly by the fact of their being a linguistic entity different from that of the Sinhalese, with an unsurpassed classical heritage and a modern development of language which makes Tamil fully adequate for all present day needs and finally by reason of their traditional habitation of definite areas which constitute one-third of this island, the first National Convention of the I.T.A.K. demands for the Tamil Speaking Nation their inalienable right to political autonomy and calls for a plebiscite to determine the boundaries of the linguistic states in consonance with the fundamental and unchallengeable principle of self-determination.”
The components of this dream are as follows:
a. Tamil Speaking People in Ceylon constitute a nation distinct from that of the Sinhalese by every fundamental test of nationhood: i. playing a separate historical part in this island at least as ancient and as glorious as that of the Sinhalese; ii. with an unsurpassed classical heritage and a modern development of language making Tamil fully adequate for all present-day needs; iii. their traditional habitation of definite areas constituting one-third of this island; b. Inalienable right of the Tamil Speaking Nation to political autonomy.
Vaddukoddai Resolution of TULF
The Vaddukoddai Resolution unanimously adopted on 16 May 1976 by the Tamil United Liberation Front (TULF) consisting of all the Tamil political parties and groups in the North – East narrated in its preamble all the rights denied to or deprived of Tamil people by the successive Sinhala governments and their demands for restoration thereof:
a. The Tamils of Ceylon by virtue of their language, their religions, their separate culture and heritage, their history of independent existence as a separate state over a distinct territory for several centuries and, above all by their will to exist as a separate entity ruling themselves in their own territory, are a nation distinct and apart from Sinhalese;
b. Throughout centuries from the dawn of history, the Sinhalese and Tamil nations have divided between themselves the possession of Ceylon, the Sinhalese inhabiting the interior of the country in its Southern and Western parts and the Tamils possessing the Northern and Eastern districts;
c. Successive Sinhalese governments since independence have encouraged and fostered the aggressive nationalism of the Sinhalese people and have used their political power to the detriment of the Tamils by making serious inroads into the territories of the former Tamil Kingdom by a system of planned and state-aided Sinhalese colonization and large scale regularization of recently encouraged Sinhalese encroachments, calculated to make the Tamils a minority in their own homeland.
d. The proposals submitted to the Constituent Assembly by the Ilankai Thamil Arasu Katchi for maintaining the unity of the country while preserving the integrity of the Tamil people by the establishment of an autonomous Tamil State within the framework of a Federal Republic of Ceylon.
‘‘This convention resolves that restoration and reconstitution of the Free, Sovereign, Secular, Socialist State of TAMIL EELAM, based on the right of self-determination inherent to every nation, has become inevitable in order to safeguard the very existence of the Tamil Nation in this Country.
‘‘
This Convention directs the Action Committee of the Tamil United Liberation Front to formulate a plan of action and launch without undue delay the struggle for winning the sovereignty and freedom of the Tamil Nation; and
This Convention calls upon the Tamil Nation in general and the Tamil youth in particular to come forward to throw themselves fully into the sacred fight for freedom and to flinch not till the goal of a sovereign state of TAMIL EELAM is reached.’’
· From this it clearly appears that not only the LTTE and the other armed militant groups, but the entire leadership of the TULF was also responsible for aiding and abetting and leading the Tamil youth for the 30-year war against Sri Lanka.
Although the LTTE was defeated and the 30-year war came to an end on May 18, 2009, the ITAK, the TULF or the TNA and the other political parties in the North-East have not abandoned their goal or dream of creating a separate Tamil State in the amalgamated Northern and Eastern Provinces of Sri Lanka. They have only changed their strategy and tactics in the march for reaching their goal.
Speech made by R. Sampanthan, the leader of the TULF, at the 14th ITAK Convention held in Batticaloa in May 2012
In this speech, Sampanthan clearly explains to their members their new strategy to achieve their goal of a separate state thus:
We gather here following our victory in the passage of the recent Resolution at the UN Human Rights Council, a condemnation against the SL government by the international community.
Ilankai Thamil Arasu Katchi was created by S. J. V. Chelvanayagam, the father of Tamil Nation, for the purpose of establishing self-determination of the Tamil people on this island. This objective is evident in both the name of the party and in the manner in which it operates.
Tamil United Liberation Front, of which our party was a member, took the historical decision to establish the separate government of Tamil Eelam in 1976. Based on this decision of our party, and the need to place ourselves in a position of strength, Tamil youth decided to oppose violence with violence and began to rise up as armed rebel groups.
Liberation Tigers of Tamil Eelam, became a great force within the Tamil community.
We remember the Tamil youth who sacrificed their lives in armed struggle. …. SL government has committed the crime of extermination against our people,
The intervention of India has clearly taught us the lesson that whatever our aspirations may be, India will never welcome a political solution in Sri Lanka that does not accord with the interests of India.
Achieving Tamil Eelam was becoming an increasingly unrealistic goal. Thus, instead of sacrificing more lives to this cause, our party with the help of India, began supporting a solution that allowed Tamil people to live within a united Sri Lanka.
A most important lesson we have learnt from the past 60 years… is that we should act strategically, with the awareness that global powers will act based on their domestic interests.
Further, a struggle that runs counter to the international community, built only on military might, will not prevail. It is for this reason, that in the new environment created by various global influences, we have, together with the support and assistance of the international community, found new ways of continuing with our struggle.
Our expectation of a solution to the ethnic problem of the sovereignty of the Tamil people is based on a political structure outside that of a unitary government, in a united Sri Lanka in which Tamil people have all the powers of government needed to live with self-respect and self-sufficiency.
The position that the North and East of Sri Lanka are the areas of historical habitation of the Tamil speaking people cannot be compromised in this structure of government…. We must have unrestricted authority to govern our land, protect our own people, and develop our own economy, culture and tradition… Meaningful devolution should go beyond the 13th Amendment to the Constitution passed in 1987.
The above solution is one that is likely to be acceptable to members of the international community including India and the United States.
Any solution to the ethnic problem concerning the sovereignty of the Tamil people must be acceptable to the Muslim community in Sri Lanka.
The international practice prevalent during the mid-eighties, when the intervention of India occurred, has now changed. Although the issue at hand is the same, the prevailing conditions are different. The struggle is the same, but the approaches we employ are different. Our aim is the same, but our strategies are different. The players are the same, but the alliances are different. That is the nature of the Tamil people. Although we still have the same aim, the methods we use now are different.
The current practices of the international community may give us an opportunity to achieve, without the loss of life, the soaring aspirations we were unable to achieve by armed force.’’.’’ www.sangam.org/2012/06/Sampanthan_Speech.php
Part II
Ten-point Accord for Regime Change arrived at Singapore in 2013
As disclosed by a report published on the Tamilnet website on 23 Jan., 2015, the TNA and the Tamil diaspora with the objective of achieving their goal of creating a federal state in the North-East played a key role in bringing about a regime change at the 2015 presidential election.
As revealed in this report, an LTTE front organisation in South Africa ‘In Transformation Initiative’ organised a conference in Singapore in 2013, and it was funded by two European countries. Former Minister of Foreign Affairs Mangala Samaraweera, TNA national list Member of Parliament M. A. Sumanthiran, Dr. Jayampathy Wickramaratne, who was an Adviser on Constitutional Affairs to two Presidents, representatives of the Global Tamil Forum (GTF) representing the Diaspora Tamils, Colombo University Law Professor Thamilmaran and a lawyer from the Sri Lanka Muslim Congress were among the participants at that Conference, according to the Tamilnet report.
Samaraweera, who represented Ranil Wickramasinghe, urged Tamils for support for regime change and abolition of executive presidency, promising in return to grant all demands of the TNA such as the release of all LTTE prisoners, changing the Governor of the Northern Province, removing Army from Jaffna, and the full implementation of 13th Amendment.
The report claims that the understanding reached in Singapore in 2013 formulated a conceptual framework on abolishing the executive presidency which is a fundamental obstacle for the Tamils to create a federal state in Sri Lanka based on ten basic principles described as the ‘‘Singapore Principles’’.
When Tamil aspirations were taken up for discussion, Sumanthiran wanted to avoid use of terms such as Nation and Right to Self-determination in the document. Thamilmaran remained silent on this matter.
Only the voice of a human rights defender, a Sinhalese representing the civil society, was in favour of a formula based on the recognition of nationhood of Tamil people with their traditional homeland in the North-East.
Thus, the Tamil aspirations went missing in the proposal. Instead, the document was drafted with the intention of being nondescript.
Sumanthiran, who represented the TNA took care not to include anything in the document that would result in arousing fear in the minds the Sinhala population in the South.
The Ten Point Singapore Principles agreed in the Accord:
In describing the nature of the State what is important is the substance; the labels are secondary.
(While maintaining ‘unitary state’ label, they can have a full federal rule in the North-East)
The Constitution shall be based on basic constitutional principles and values including sovereignty of the people, participatory democracy and supremacy of the Constitution which shall form an unalterable basic structure.
Power sharing shall be on the basis of self-rule and shared-rule within an undivided Sri Lanka.
(This is Sampanthan’s united, undivided, indivisible Sri Lanka; They have taken care not to use the terms ‘self-autonomy’, or ‘self-determination’; they mean the same thing when they use the term ‘self-rule’ and ‘shared-rule’.)
The executive presidency shall be abolished and the form of government shall be Parliamentary.
(Executive presidency was the main obstacle for the full implementation of federalism at that time; Now with Ranil Wickramasinghe as President, executive presidency has paved the way for full implementation of federalism.)
The pluralist character of Sri Lankan society as well as identities and aspirations of the constituent peoples of Sri Lanka shall be constitutionally recognized. (This will have the effect of diluting the identity of the majority Sinhala population in the country.)
There shall be a strong and enforceable Bill of Rights consistent with universally accepted norms and standards.
There shall be a separation of powers and an independent judiciary which includes a Constitutional Court.
Important institutions shall be independent and accountable. Appointments to these and High Posts shall be through a transparent mechanism that provides for a national consensus, example Constitutional Council.
Institutions of the State shall reflect the pluralist character of Sri Lankan society. (This will have the effect not only of diluting the identity of the majority Sinhala population in the country, but also of making appointments to important state institutions not on the basis of merit and qualifications, but on the basis of ethnicity and religion.)
The Republic of Sri Lanka shall be a secular state. The foremost place to Buddhism and equal status to other religions shall be assured.
Giving Effect to the Understanding reached in Singapore
The Yahapalana government, which came to power following the presidential election of 2015, took several steps to give effect to the understanding reached with the TNA and Tamil diaspora in Singapore in 2013:
Within 100 days of coming to power, on 28 April, the 19th Amendment to the Constitution was passed in Parliament, curtailing the executive power of the President to a great extent and enabling the Prime Minister Ranil Wickremesinghe to take the effective control of the government into his hands.
In the new Parliament elected at the August 2015 general elections, R. Sampanthan, the leader of the Tamil National Alliance with 16 MPs, was appointed the Leader of the Opposition in Parliament, ignoring the claim of the United Opposition with 51 elected MPs.
In January 2016, the government took steps to draft a new Constitution with Parliament sitting as a ‘Constitutional Assembly’ and with several Steering Committees well represented by Tamil groups appointed to draft different chapters.
TNA Proposal submitted to the Steering Committee contained the following points:
SL a federal state within the framework of a united/undivided and indivisible country. Centre and Provinces to exercise exclusive power in the areas of their competence.
North-East to constitute one state> N-E historically inhabited by Tamil speaking people;
The powers and functions to be assigned to the provinces shall be in conformity with the Recommendations of (a) Mangala Munasinghe Select Committee; (b) with shared sovereignty, 2000 Constitution Bill, etc.
Province to have power to muster financial resources required;
Governor not to have powers to interfere with the exercise of the executive power of the Province;
Sampanthan’s Speech at Matara in September 2016
When one goes through the Speech made by Sampanthan, as the Leader of the Opposition, at the Samurdhi Development Community Foundation Meeting held at Matara on 02 Sept., 2016, one can clearly see how the Tamil National Alliance is pursuing the same goal of setting up a full federal state in the North-East of Sri Lanka adopting new strategies so as to allay the fears of the people in the South about the division of the country. He attended the meeting at the invitation of Mr. Buddhika Pathirana, UNP MP. This is what Mr. Sampanthan said:
We are not trying to divide the country. We are only trying to share power, the country will be one united, undivided, indivisible country which cannot ever be divided.
All the powers required to ensure the unity and indivisibility of the country would remain with the central government. The powers that would remain with the central government in a power sharing arrangement that was being envisaged – defence, foreign affairs, finance and currency and immigration and emigration would be vested with the Centre. All the powers required to ensure the unity and indivisibility of the country would remain with the Central Government.
Other powers would be devolved to the provincial councils which would have enhanced powers, and devolution would allow people of a particular region to exercise more control over the issues relevant to them through elected representatives of those areas. – Daily Financial Times of 05 Sept., 2016.
13 demands of TNA forwarded to Candidates of 2019 Presidential Election
Tamil National Alliance (TNA) led by Ilankai Thamil Arasu Katchi (ITAK) of Mr. Sampanthan forwarded 13 Point Demands to Candidates of major political parties that contested the 2019 Presidential Election, extending their support to the Candidate who accepts these demands.
Having realised that the final solution to the long standing Tamil Ethnic issue, which has remained in the Island of Sri Lanka as an unresolved National Question for several decades and been the cause for the war which extended for over three decades, would be the – (1) Acceptance of the political aspirations of the Tamil Nation; (2) Recognition of the Northern and Eastern Provinces as the historical habitat and the traditional homelands of the Tamil Nation: (3) Acknowledgement of the Sovereignty of the Tamil Nation and (4) Realization of the fact that the Tamil People under the provisions of International Law are entitled to the right of self-determination, accordingly the creation of federal rule in the merged Northern and Eastern Provinces would be our considered stand-point.
‘‘ With the hope of finding a final solution to problems of Tamil People the following demands are presented to Presidential candidates of major political parties:
A solution to the Sri Lankan Tamil issue must be found by setting up a new federal constitution rejecting the heretofore unitary constitution, accepting the nationhood of the Sri Lankan Tamils and recognising its sovereignty and accepting that Tamils under the provisions of the International Law are entitled to the right of self determination.
Full-fledged independent impartial International Mechanisms through the International Criminal Court / International Arbitration Tribunal must be set up to inquire into the War Crimes and Crimes against Humanity and Genocide committed during the final stages of the war:
The Prevention of Terrorism Act must be withdrawn:
(Consequently) All Tamil Political Prisoners must be freed unconditionally:
Justice must be found for those affected by the enforced disappearance of persons through appropriate international mechanisms.
The Governmental Forces occupying private and state lands / buildings in the Northern and Eastern Provinces which were occupied by Tamils before the war must be withdrawn, the lands released and resettlement process must be immediately set in motion.
Sinhalisation, Buddhistization and Sinhala Colonisation in the Northern and Eastern Provinces presently with state assistance must be stopped immediately.
Since the Mahaweli Development Authority is engaged in planned Sinhala Colonization in the Northern Province under the pretext of redirecting of the Mahaweli River to the North, the jurisdiction of the said Authority must be forthwith terminated. Also the planned Sinhala Colonisation taking place in the Eastern Province under the Mahaweli Development Scheme must also be terminated.
The Moragaskanda Irrigation Scheme recently introduced is indulging in planned Sinhala Colonisation in the Vanni Region. All such Sinhala Colonisation must forthwith be terminated.
The expropriation of lands and areas of religious worship by Government Departments including Archaeology Department, Wildlife Department, Forest’s Department must forthwith be stopped. Those lands and places of worship already expropriated through these Departments must be freed from the effect of the Gazette Notifications which so expropriated them.
Those affected in the Northern and Eastern Provinces by the war, wanting to economically improve themselves or youth wanting to enhance their job opportunities receiving direct investments from our Diaspora and elsewhere must have all legal obstacles faced removed so that handling lands and finances here would be easy and quick.
Priority must be given to those belonging to the Northern and Eastern Provinces in Governmental and Private sector job opportunities in the said two provinces.
An independent mechanism must be set up under the supervision of elected Representatives of the People of the Northern and Eastern Provinces to handle all finances for Development in the said two Provinces after proclaiming the Northern and Eastern Provinces as areas affected by war.
Part III
TNA Spokesman MP Sumanthiran’s Statement on discussions with the President:
The Island of 02. 08. 23 published a statement issued by TNA spokesman M. A. Sumanthiran, MP, on his party’s demand for enhanced and meaningful devolution, following their discussions with the President. As usual, Sumanthiran has taken care not to be too specific and to cover up their real intention:
This statement issued in order to clarify our position with regard to the political solution for the national question, the 13th Amendment to the Constitution, the conduct of the long delayed Provincial Council Elections and the All-Party conferences convened by the President.
The Tamil People have, since 1956, consistently given the Tamil political parties a mandate to work towards a political solution to the Tamil National Question by means of a federal arrangement in the North-East, which was recognized as the ‘historical habitation’ of the Tamil speaking people in the Indo-Lanka Accord that was signed on the 29th July 1987, which provided for a measure of devolution to the provinces, including land and police powers.
The Govt. of India has actively engaged in this pursuit for the past 40 years after SL accepted the good offices, offered by India, consequent to the 1983 July violence against the Tamils.
Most recently, too, Indian PM Narendra Modi conveyed to President Ranil Wickremesinghe, India’s hope that the Govt. of Sri Lanka will fulfill the aspirations of the Tamils and drive the process of rebuilding for Equality, Justice and Peace, He also hoped that Sri Lanka will fulfill its commitment to implement the 13th Amendment and conduct the Provincial Council Elections, and will ensure a life of respect and dignity for the Tamil Community of Sri Lanka.
The Prime Minister clearly expressed our belief that a meaningful devolution of powers and the full implementation of the 13th Amendment are essential components of addressing and facilitating the reconciliation process in Sri Lanka. This has been our consistent position and this was put forward during the meeting between the two leaders.
Our position is that power sharing must be in a federal structure, consistent with the aspirations of the Tamil People expressed at every election since 1956.
Thus, the non-implementation of any part of the Constitution is a violation of the whole. To that extent, we insist on the full implementation of the devolution arrangements currently extant in our Constitution. Provincial Council Elections must be held without further delay.’
Sri Lanka High Commissioner to India Milinda Moragoda has, in a statement, confirmed what Sumanthiran said on Indian PM’s stand on Tamil issue:
Milinda Moragoda’ s statement:
Modi strongly raised the Tamil issue with Wickremesinghe, seeking the implementation of the 13th Amendment for devolution of power and also early provincial elections. He had said India wanted Sri Lanka to ensure a life of dignity for the Tamil community. During his visit Wickremesinghe had shared with Modi his comprehensive proposal for furthering reconciliation and power sharing through devolution.’ (Times of India and The Island – 11. 08. 2023)
From all these resolutions and statements, it clearly appears that the aspiration of all Tamil Political parties in the North-East all along has remained the same from the founding of the Ilankai Thamil Arasu Katchi (ITAK) in 1949 up to date and Mr. Sampanthan’s dream never changes in essence.
The components of this never-ending dream are as follows:
a. Tamil Speaking People in Ceylon constitute a nation distinct from that of the Sinhalese;
b. The Northern and Eastern Provinces of Sri Lanka are the areas of traditional, historical habitation of the Tamil speaking people. Sinhala Colonization in the Northern and Eastern Provinces must be stopped immediately. This position cannot be compromised in any structure of government;
c. The Northern and Eastern Provinces must constitute one administrative unit; Any meaningful devolution should go beyond the 13th Amendment to the Constitution, creating a federal rule in the merged Northern and Eastern Provinces;
All the powers required to ensure the unity and indivisibility of the country – defence, foreign affairs, finance and currency and immigration and emigration would remain with the Central Government. All the other powers, including land and Police powers, would be devolved to the provincial councils enabling them to exercise unrestricted authority to govern their land, protect their own people, and develop their own economy, culture and tradition with enhanced powers.
The Tamil Nation has an Inalienable right to political autonomy/self-determination.
Ranil Wickremesinghe’s Dream
As revealed in President Wickremesinghe’s Address to Parliament on 08 Feb., 2023, both President Wickremesinghe and Sampanthan had a common dream to provide a sustainable solution to the ethnic problem in Sri Lanka. When one examines the various steps taken by President Wickremesinghe at different stages in his political career to end the war and find a solution to the ethnic problem, one can clearly see that both have shared the same dream with more or less same solutions in mind.
This is what the UNP Election Manifesto presented at the General Election of December 5, 2001 stated:
Our prime objective is peace. We stand for peace and peace alone. We will end the war and build national unity. We will bring about a political solution acceptable to all those who are party to the crisis, within the framework of an undivided Sri Lanka. An interim administration will be set up for the northern and Eastern Provinces.”
One can get a glimpse of his solution to the ethnic problem from the Oslo Declaration and the Ceasefire Agreement signed by Wickremesinghe, as the Prime Minister, on behalf of the government of Sri Lanka and by Anton Balasingham on behalf of the LTTE on February 23, 2002. The Oslo Declaration was drafted by Erik Solheim.
One paragraph of the Oslo Declaration reads thus: Responding to a proposal by the leadership of the LTTE, the parties agreed to explore a solution founded on the principle of internal self-administration in areas of historical habitation of the Tamil-speaking peoples, based on a federal structure within a united Sri Lanka.
As claimed by Erik Solheim, Balasingham had accepted it and taken it to LTTE leader Prabhakaran, who rejected it because it referred to federalism. LTTE leader’s position was that they were prepared to consider favourably a political framework that offered substantial regional autonomy and self-government from the part of the Sinhala side. It was after the LTTE submitted the ISGA framework, stressing the external dimension of the right to self-determination in its preamble that the ceasefire became effective. During the period when the ceasefire remained effective, the LTTE was allowed to have an internal self-administration in the territory under their control, setting up its own police stations, courts, banks and other institutions and have its border control points issuing entry passes. He did not openly reject the proposals of the LTTE for the establishment of Internal Self Government Authority (ISGA) under the LTTE leadership for the governance of the North-East. However, he could not openly accept the proposal and grant ISGA to LTTE due to strong protests of the other political parties and the people in the South.
The solution proposed by the Ranil Wickremesinghe government in the Oslo Declaration is similar to the one demanded by R. Sampanthan at the ITAK Convention in Batticaloa in 2012 and during his speech at Matara in 2016.
As the Leader of the Opposition, Ranil Wickremesinghe in 2005 had brought pressure on the Kumaratunge government to enter into a Memorandum of Understanding with the LTTE for the establishment of a Post-Tsunami Operational Management Structure (P-TOMS Agreement) under the LTTE leadership for the reconstruction of the Tsunami devastated zones in the six Districts of Jaffna, Kilinochchi, Mulathivu, Trincomalee, Batticaloa and Ampara in the North East. That MOU was signed by the Secretary of the Ministry of Relief, Rehabilitation and Reconciliation on behalf of the Govt. of Sri Lanka and by Shanmugalingam Ranjan, Deputy Head of Planning and Development Secretariat, on behalf of the LTTE. However, it could not be implemented due to the Supreme Court order declaring it illegal.
The Northern and Eastern Provinces, which remained merged as one administrative unit since 1987 on a Proclamation made by President J. R. Jayewardene under the Emergency Regulations, were demerged on the Order of the Supreme Court made on 16 Oct., 2006.
As reported in the Daily Mirror of 27. 11. 2006, the Opposition Leader Ranil Wickremesinghe assured TNA leader R. Sampanthan of his Party’s fullest support to merge the Northern and Eastern Provinces if the issue comes before Parliament.
After 2007, while the armed forces were vigorously and successfully carrying out the war for the liberation of the country from the LTTE terrorists, the people stood by them.
But the UNP leaders carried on a vicious campaign aimed at disheartening our armed forces, making public utterances, belittling the heroic victories won by our armed forces such as ‘Thoppigala kiyanne kelewak’, ‘Alimankada yanava kiyala yanne Pamankada’; ‘Kilinochchi yanava kiyala Madavachchi yanava’; and passing disparaging remarks such as ‘ona gonekuta yudhdha karanna puluvan’.
At the 2013 Singapore Conference held to get Tamil support for regime change at the 2015 presidential election, Mangala Samaraweera, representing the UNP, ensured the full implementation of 13th Amendment and a federal state in the North and East of Sri Lanka in return for Tamil support for a regime change.
In October 2015, the Yahapalana government co-sponsored the resolution brought by Western countries for implementation of the recommendations in the Geneva UNHRC Report against Sri Lanka and its armed forces who liberated the country from the terrorists. It took several steps to implement the recommendations in the UNHRC report, such as signing and ratifying the International Convention on the Enforced Disappearances of Persons and enacting the International Convention on the Enforced Disappearances of Persons Act in 2016 and enacting the Office of the Missing Persons Act and opening the Office of the Missing Persons. All those were demands of Tamil political parties.
In January 2016, a Constitutional Assembly was appointed to draft a new Constitution to accommodate Tamil aspirations.
The Steering Committee of the Constitutional Assembly headed by PM Wickremesinghe released its Interim Report with its proposed Amendments to the Constitution on 21 Sept., 2017. However, due to differences of opinion among political parties and the upheavals taking place in the political field at that time, the Yahapalana government could not go ahead with it.
It is no secret that the Tamil diaspora, Tamil political parties in the North-East, religious groups supporting the LTTE cause and foreign-funded NGOs involved in various anti-Sri Lanka campaigns played a key role in the Galle Face struggle, which compelled the former President to leave office and brought President Wickremesinghe to power.
After assuming power as the President, Wickremesinghe several times expressed his firm determination to bring about a final solution to the ethnic problem in the North-East within a few months through required constitutional amendments with the consensus of other political parties represented in Parliament. With this aim, he separately met and had discussions with leaders of Tamil political parties representing the North-East. He addressed the Parliament and convened all Party Conferences and tried to bring pressure on MPs to come to a settlement.
In his Address to Parliament on 09 August, 2023, President Wickremesinghe clearly said that he stood for full devolution of power with 13+ , granting all powers, other than Police powers, to the Provincial Councils.
President Wickremesinghe, who has no popular mandate, has come forward to do things which six Presidents elected by popular mandate since 1982 – J. R. Jayewardene, R. Premadasa, Chandrika Kumaratunga, Mahinda Rajapaksa, Maithripala Sirisena and Gatabaya Rajapaksa, did not dare to do, conscious of the consequences of doing so or the feelings of the vast majority of the people in the South.
President J. R. Jayewardene, in his address to Parliament on 20 Feb., 1986 clearly pointed out the danger posed to the country by accepting the demands of Tamil Political parties for self-rule and merger of the Northern and Eastern Provinces as one administrative unit.
When the address of President Wickremesinghe to Parliament on August 9, 2023 is analysed, it becomes clear that he is ready to offer far more than Sampanthan expects.
Part IV
President Jayewardene stands up against Ranil Wickremesinghe
President J. R. Jayewardene, on the occasion of the Opening of Parliament on 20 Feb., 1986 said: ‘‘Permit me to speak on the government’s attempts since 1977 to seek a political solution to the problems arising in the Northern and Eastern Provinces.
‘‘Our first attempt to do so was outlined in the UNP Election Manifesto of 1977. These proposals were prepared in consultation with some of the TULF MPs at that time. I have in my Address to Hon. Members on 23rd February 1984 outlined the steps taken to implement them as follows:
‘‘Since 1977 the government has made Tamil a National Language in the Constitution; amended rules governing entrance to universities and removed any racial bias governing those rules; removed the regulations prescribing racial considerations governing entry to the Public Services and promotion in the services.
‘‘District Councils have been created and District Ministers appointed. The TULF accepted them and worked for them for two years and contested elections. Last year they withdrew from them as sufficient powers and finance had not been allotted to them.
‘‘The search for a political solution was the profound concern of the government of SL. It was this commitment to reach a peaceful solution to the problem that led SL to take the unprecedented step on the part of any Sovereign State of sending her accredited representatives to explore the possibility of reaching a settlement at two Conferences held in Thimpu, Bhutan in August 1985 … arranged with the Tamil groups through the good offices of India.
‘‘However, neither the TULF nor the groups who attended these talks showed any serious inclination to discuss any of the proposals placed before them by the Govt. of SL. Their final response was an outright rejection of the government proposals and an invitation to the Govt. of SL to make new proposals that would accord with the so-called cardinal principles which they enunciated, which were no more than a re-statement of the demand for Eelam.
‘‘On 12th July 1985 the 6 Tamil groups made a statement of the ‘Four Principles’ on which they were working. On 13th August 1985 the leader of the SL Delegation, Dr. H.W. Jayewardene responded to it with a statement on the ‘Four Principles’ mentioned by the Tamil groups.
‘‘He dealt with the (i) recognition of the Tamils as a distinct nationality, (ii) a separate homeland and (iii) self-determination for the Tamils; and (iv) the linkage of the Northern and Eastern Provinces as a reaffirmation of the demand for a separate state and could not be the subject of discussion and acceptance by the SL govt.
‘‘The SL delegation also submitted an outline of the structure of the sub-national units of a Participatory System of Governance on 16th August, but this too was not considered by the Tamil groups though it indicated areas on which discussion and agreement were possible.
‘‘The Accord reached in Thimpu and New Delhi were to be the basis of any future discussions. Such discussion would not reopen the Four Principles mentioned earlier in any form whatsoever. This was the basis of the understanding of both the Govts of India and Sri Lanka ….
” There are certain principles which we cannot depart from arriving at a solution. We cannot barter away the unity of Sri Lanka, its democratic institutions, the right of every citizen in this country whatever his race, religion, or caste to consider the whole Island as his Homeland, enjoying equal rights, constitutionally, politically, socially, in education and employment are equally inviolable.”
At present the Sri Lanka Tamils are in a minority in the Eastern Province while the Sinhalese and the Muslims together constitute nearly sixty per cent of the population. Since the Sri Lanka Tamils constitute more than ninety per cent of the population in the Northern Province, the object of the amalgamation of the North and the East is clear – the Sri Lanka Tamils will after amalgamation become the majority group in the combined unit of administration. Once the amalgamation is achieved the concept of the traditional homeland of the Tamils which has been a corner-stone of agitation in the post-independence period will be revived as this is the only ground on which the T.U.L.F.
denies the legitimate rights of the Sinhala people to become settlers in the Northern and Eastern provinces. Nor does the traditional homelands theory recognise any rights for the Muslims either except as an attenuated minority in the amalgamated territory. So, on the one hand while professing to urge the case for all Tamil speaking people in fact the T.U.L.F. is covertly seeking to secure the extensive areas for development, especially under the accelerated Mahaweli Program, for exploitation by the Sri Lankan Tamils alone. This in short is the duplicitous motivation behind the demand for amalgamation.
‘’ Quite candidly, the Sinhala people do not regard the demand for the amalgamation of the Northern and Eastern Provinces as a bona fide claim but as one motivated by an ulterior purpose, namely, as a first step towards the creation of a separate state comprising these two Provinces. The recent outrages by Tamil terrorists against the Sinhala civilian population settled in the North and East killing vast numbers of them, ravaging their homesteads and making thousands of them refugees in their own land has only made their apprehensions seem more real than ever before.
” Even the most naive of people could not expect a single Sinhalese to go back to the North and/or East if the maintenance of law and order within those areas becomes the exclusive preserve of the political leaders and patrons of the very terrorists who chased them out. Could one for instance expect the survivors of Namalwatta to go back to their village if the leader of the Tamil Terrorist gang that murdered their families is the A S.P. of the area? Not only would those poor refugees not go back but those Sinhalese, including those in Ampara and Trincomalee, who are still living in the North and East, would necessarily leave their lands and flee to the South, if these proposals are implemented.”
” These proposals are totally unacceptable. If they are implemented, the T. U. L. F. would have all but attained Eelam. It need hardly be said that even if the demand for a Tamil Linguistic State is granted, further problems and conflicts are bound to arise between that Tamil Linguistic State of the North and East and the Centre. Water, hydropower and the apportioning of funds are some of the areas in which conflicts could arise. A cause or pretext for a conflict on which to base a unilateral declaration of independence could easily be found.
There can be little doubt that what T.U.L.F. seeks to achieve by its demands is the necessary infrastructure for a State of Eelam, after which a final putsch could be made for the creation of a State of Eelam, comprising not only of the North and East, but of at least the hill country and the NCP as well.” (quoted in the Judgement of Wanasundara J in the 13th Amendment Case, Pp. 377 – 379)
With all our criticism of JR for the harmful consequences the country had to face with his open economy and executive presidency introduced after 1977, from the above statement it clearly appears that JR was not a traitor to this country, but a patriot who had some genuine concern for the country and its people. He had the wisdom to see through the danger posed to the very existence of this country as a unitary state by giving into unreasonable and crafty demands of the Tamil political leaders in the North-East.
President Jayewardene not only refused to accept these proposals of the TULF and other Tamil groups; he was not even prepared to discuss them. His firm response was that they are totally unacceptable.
Part V
Present Provincial Council System and 13th Amendment – Solutions forcibly imposed on Sri Lanka by India
The Indo-Lanka Accord signed on July 29, 1987 is not an accord voluntarily entered into between two independent States of their own free will, after mutual discussion and understanding. The 13th Amendment to the Constitution and the Provincial Councils Act of 1987 are also not documents drafted and enacted by the government of Sri Lanka of its own free will to give effect to the understanding and agreements reached between the Govt. of Sri Lanka and the Tamil political parties and militant groups following discussions that went on for years.
When talking of Indian pressure brought on Sri Lanka to sign the Indo-Lanka Accord and bring the 13th Amendment to the Constitution and set up Provincial Councils, the general impression is that it refers to the Indian threat of invading our air space and dropping dhal by air on the North East of Sri Lanka.
However, when one goes through the negotiation process between the high officials of the Indian government and Sri Lanka, as mentioned in the President Jayewardene’s address to Parliament, and the documents cited in the Judgement of the 13th Amendment case, it appears that the Indian government brought pressure and compelled the government of Sri Lanka to move away from the consistent stand taken by Sri Lanka all along and to accommodate certain unacceptable demands of Tamil political parties by incorporating them into some of the provisions in these documents.
As stated by President J. R. Jayewardene in his address to Parliament on February 20, 1986:
‘‘At the Thimphu discussions, on August 27, 1985, when Dr. H. W. Jayewardene, the leader of the SL delegation refused to accept or discuss the ‘Four Cardinal Principles’ raised by the six Tamil groups, and indicated areas on which discussion and agreement possible, the TULF together with the other groups walked out of the conference and refused to participate in the discussion.
The Four Cardinal Principles were as follows:
a. Recognition of the Tamils as a distinct nationality; b. a separate home land; c. self-determination for the Tamils; and d. the linkage of the Northern and Eastern Provinces,
‘‘Thereafter, Dr. Jayewardene left for New Delhi to meet the Indian Prime Minister Rajiv Gandhi and discussion resumed with Indian officials and drafted the Terms of Accord and Understandings, initiated by Dr. Jayewardene and the Deputy Secretary, Ministry of External Affairs of India, Ranjan Mathai. Then Dr. Jayewardene met the Indian PM and informed him of the decision reached. On 31. 08. 1985, the Ministry of External Affairs of India issued a press release on their meeting. Dr. Jayewardene had a detailed and constructive discussion with the Foreign Secretary Mr. Romesh Bhandari. A comprehensive paper was drawn up covering all issues of importance and relevance. This detailed draft could serve as the basis for negotiations towards a mutually agreed Accord by the parties concerned.
‘‘On the return of the delegation to Sri Lanka, it was found necessary to amplify some of the matters in the Draft Accord. Three members of the Sri Lankan delegation had discussions with senior officials of the Ministry of External Affairs of India in New Delhi from 10 to 13 Sept. At the conclusion of these talks, the Ministry of External Affairs of India issued a press release: ‘The SL delegation gave some amplification of certain issues which figured in the paper drawn up earlier in New Delhi. They also provided some facts and figures about how some of the proposals contained in the Paper would work in practice. It will be recalled that the Paper drawn up during Dr. Jayewardene’s visit is to serve as a basis for further negotiations towards a mutually agreed Accord by the parties concerned.’
‘‘The SL delegation returned to Sri Lanka with the full expectation that future discussions with a view to arriving at a solution would be on the basis of the Terms of Accord and Understanding.
‘‘The Accord reached in Thimphu and New Delhi were to be the basis of any future discussions. Such discussion would not reopen the Four Principles mentioned in any form whatsoever. This was the understanding of both the Govts of India and SL.
‘‘The Terms of Accord and Understanding were to be forwarded to the representatives of Tamil groups by the Indian Govt. But all the efforts of the SL delegation and the representatives of the Indian Govt. proved of no avail as these groups did not make any response to reach a settlement.
‘‘More than three months later, on 1st December 1985 the TULF submitted some proposals to Rajiv Gandhi. But they were by no means an attempt to discuss the draft Terms of Accord and Understanding. TULF proposals were diametrically contrary to the draft Terms of Accord and Understanding. Govt. observations on TULF proposals was dispatched to New Delhi on January 30, 1986.’’
H. W. Jayewardene
President Jayewardene’s Address to Parliament, made on February 20, 1986, mentioned only what had happened up to the end of January 1986. Justice Wanasundara’s Judgement in the 13th Amendment to the Constitution Case (1987/2 SLLR Pp. 333 – 383) mentions several things that happened after that date in this process.
The following passages are taken from the said judgement:
‘‘As early as September 1985 the mechanism of Provincial Councils had been proposed. In the Draft Framework of Terms of Accord and Understanding of 30.08.85, it was stated that –
‘ 5. A Bill for the amendment of the Constitution to enable the creation of Provincial Councils and the devolution of powers on them shall be enacted by Parliament by a 2/3 majority. Thereafter Parliament will pass an Act directly conferring on the Provincial Councils the requisite legislative powers. Such power shall not be revoked or altered in any manner except by an Act of Parliament passed by a two-thirds majority after consultation with the Provincial Council or the Councils concerned.’
‘‘The next development was further talks held between the Sri Lankan Government and an Indian delegation, led by Hon. P Chidambaram, Minister of State, in July 1986. Based on those talks a detailed Note containing observations on the proposals of the Sri Lanka Government as the Framework was sent to the Indian Government. The following three paragraphs of the Note are relevant for the purpose of this determination:
1. A Provincial Council shall be established in each Province. Law-making and Executive (including Financial) powers shall be devolved upon the Provincial Councils by suitable constitutional amendments, without resort to a referendum. After further discussions subjects broadly corresponding to the proposals contained in Annexe 1 to the Draft Framework of Accord and Undertaking of 30.08.85, and the entries in List ll and List III of the Seventh Schedule of the Indian Constitution shall be devolved upon Provincial Councils.
2. In the Northern Province and in the Eastern Province the Provincial Councils shall be deemed to be constituted immediately after the constitutional amendments come into force….
7. Any amendments to the constitutional provisions or any other laws providing for devolution of legislative and executive (including financial) powers shall require a 2/3 majority as provided in the present Constitution. Any further safeguards for example a further requirement of a referendum may also be discussed.”
‘‘In a preamble to this Note it was agreed that suitable constitutional and legal arrangements would be made for those two Provinces to act in coordination. In consequence of these talks a constitutional amendment took shape and form and three lists – (1) The Reserved List (List II); (2) The Provincial List (List I); and (3) The Concurrent List (List Ill) too were formulated.
‘‘The next stage of the discussions were the Bangalore discussions between our President Jayewardene and Prime Minister Rajiv Gandhi in November 1986. The Agreement between them recognised that the Northern and Eastern Provinces have been areas of historical habitation of Sri Lankan Tamil speaking peoples who have at all times hitherto lived together in the territory with other ethnic groups.’’ According to these discussions Sri Lanka agreed that these two Provinces should form one administrative unit for an interim period and that its continuance should depend on a Referendum and it was also agreed that the Governor shall have the same powers as the Governor of a State in India.
It was also proposed to the Sri Lanka government that the Governor should only act on the advice of the Board of Ministers and should explore the possibility of further curtailing the Governor’s discretionary powers. The Indian side also proposed that provision be made on the lines of Article 249 of the Indian Constitution on the question of Parliament’s power to legislate on matters in the Provincial list and, likewise, that Article 254 of the Indian Constitution be adopted in regard to the Provincial Council’s power to make a law before or after a parliamentary law in respect of a matter in the Concurrent List. The Sri Lanka Government’s observations on the Working Paper on Bangalore Discussion dated 26th November 1986 show that the suggestions made by the Indian Government were substantially adopted.
‘’ On the 29th July, 1987, an Accord was signed by our President J. R. Jayewardene and the Indian Prime Minister Rajiv Gandhi in Colombo. The First part of this Accord reaffirmed what was agreed at Bangalore that the Northern and Eastern Provinces have been areas of historical habitation of Sri Lanka Tamil Speaking people who at all times hitherto lived together in the territory with other ethnic groups. It also provided for these two Provinces to form one administrative unit for an interim period and for elections to the Provincial Council to be held before 31st December 1987.
The Second Part was the Annexure to the Agreement. It provided, inter alia, for a Indian Peace Keeping Contingent and for Indian observers at the Provincial Council Elections and a Referendum to be held in the Eastern Province to determine whether the Northern and Eastern Provinces should continue as one administrative unit. The legislation now tabled in Parliament is in terms of this Accord. Of course, an attempt is now being made to take shelter under Article 27 (4).’’ (13th Amendment case Judgement – Pp. 369 – P. 371)
When the material placed above relating to the negotiations between Sri Lanka and India for bringing about a solution to the Tamil ethnic problem in Sri Lanka is analysed, it becomes clear that India took the Sri Lankan government for a ride, compelling the latter to abandon its principled stand of rejecting the Cardinal Principles raised by the terrorists and the TULF at the Thimphu Talks, to accept a solution imposed by New Delhi and to accede to some of these unacceptable demands of Tamil political parties by incorporating them into the Indo-Lanka Accord and the 13th Amendment.
On 31. 08. 1985, the Ministry of External Affairs of India issued a Press Release on their meeting. Dr. Jayewardene had a detailed and constructive discussion with the Foreign Secretary Romesh Bhandari. A comprehensive paper has been drawn up covering all issues of importance and relevance. This detailed draft could serve as the basis for negotiations towards a mutually agreed Accord by the parties concerned.
The Paper drawn up during Dr. Jayewardene’s visit is to serve as a basis for further negotiations towards a mutually agreed Accord by the parties concerned.’’
The Sri Lankan delegation returned to Sri Lanka with the full expectation that future discussions with a view to arriving at a solution would be on the basis of the Terms of Accord and Understanding.
The Accord reached in Thimphu and New Delhi were to be the basis of any future discussions. Such discussion would not reopen the Four Principles mentioned in any form whatsoever. This was the understanding of both the Govts of India and SL.
Then what happened?
Three months later, on 01 December 1985, the TULF submitted some proposals, not to the government of Sri Lanka, but to Rajiv Gandhi. The TULF proposals were diametrically opposed to the draft terms of accord and understanding. The Sri Lankan government’s observations on the TULF proposals were dispatched to New Delhi on 30 Jan., 1986.
Part VI
Six months later, in July 1986, further talks were held between the Sri Lankan government and an Indian delegation led by P Chidambaram, Minister of State, a person from Tamil Nadu. Based on those talks, a detailed Note prepared containing observations of the Indian government on the proposals of the Sri Lanka government as the Framework was sent to the Indian Government.
The following three paragraphs from this Note were cited in the Judgement of Wanasundara J in the 13th Amendment Case as relevant for its determination:
1. A Provincial Council shall be established in each Province. Law-making and Executive (including Financial) powers shall be devolved upon the Provincial Councils by suitable constitutional amendments, without resort to a referendum. After further discussions subjects broadly corresponding to the proposals contained in Annexe 1 to the Draft Framework of Accord and Undertaking and the entries in List ll and List III of the Seventh Schedule of the Indian Constitution shall be devolved upon Provincial Councils.
It is strange that this paragraph suggests to bring constitutional amendments to devolve Law-making and Executive (including Financial) powers on the Provincial Councils, without resort to a referendum. It is not clear on whose suggestion this phrase – without resort to a referendum – was included, Sri Lanka or India? But it is most likely that it was India, feeling the sentiments of the vast majority of the people in the South and knowing the most probable outcome of a referendum.
Inclusion of this phrase – without resort to a referendum – may have had some impact on the minds of the Judges in arriving at a determination on the Bills.
There can be no doubt that the phrase – the entries in List ll and List III of the Seventh Schedule of the Indian Constitution shall be devolved upon Provincial Councils – included on the suggestion of Indian side.
2. In the Northern Province and in the Eastern Province the Provincial Councils shall be deemed to be constituted immediately after the constitutional amendments come into force……..
What does this mean? Can they come into being even before the Provincial Councils Bill and the Provincial Councils Elections Bill are passed and the Elections held? Where is People’s sovereignty? This also appears to be an Indian demand.
3. ‘‘In a preamble to this Note, it was agreed that suitable constitutional and legal arrangements would be made for those two Provinces to act in co-ordination. In consequence of these talks a constitutional amendment took shape and form and three lists – (1) The Reserved List (List II), (2) The Provincial List (List I); and (3) The Concurrent List (List Ill) too were formulated.’’
‘Suitable constitutional and legal arrangements to be made for those two Provinces to act in co-ordination’. This is another subtle and mild formulation used to convey the idea that the Northern and Eastern Provinces would be merged into one unit.
Mr. Chidambaram may have seen to it that the aspirations of the TULF are incorporated into the agreement to a certain extent.
‘‘The Bangalore discussions held between President J. R. Jayewardene and Indian Prime Minister Rajiv Gandhi in November 1986 were the next stage of the discussions. At the Bangalore discussions Sri Lanka had to agree to all the Cardinal Principles of the TULF and other Tamil militant groups, which Sri Lanka had totally refused even to discuss at Thimphu talks and not included in the Draft Terms of Accord and Understanding reached in New Delhi in September 1985.
The Sri Lanka government’s observations on the Working Paper on Bangalore Discussion dated 26th November 1986 show that the following suggestions made by the Indian Government were substantially adopted:
Recognition that the Northern and Eastern Provinces have been areas of historical habitation of Sri Lankan Tamil speaking peoples who have at all times hitherto lived together in the territory with other ethnic groups;
Northern and Eastern Provinces should form one administrative unit for an interim period and that its continuance should depend on a Referendum;
The Governor shall have the same powers as the Governor of a State in India.
India had also proposed to the Sri Lankan government that
the Governor should only act on the advice of the Board of Ministers and should explore the possibility of further curtailing the Governor’s discretionary powers;
provision be made on the lines of Article 249 of the Indian Constitution on the question of Parliament’s power to legislate on matters in the Provincial list;
Article 254 of the Indian Constitution be adopted in regard to the Provincial Council’s power to make a law before or after a parliamentary law in respect of a matter in the Concurrent List.
To ensure that the Government of Sri Lanka would comply with these suggestions in enacting laws for the implementation of these suggestions, the two most crucial suggestions were included in the Indo Lanka Accord signed by President J. R. Jayewardene and Prime Minister Rajiv Gandhi on the 29th July 1987 in Colombo.
The First part of the Indo-Lanka Accord reaffirmed what was agreed at Bangalore that (a) the Northern and Eastern Provinces have been areas of historical habitation of Sri Lanka Tamil Speaking people who at all times hitherto lived together in the territory with other ethnic groups. It also provided for (b) these two Provinces to form one administrative unit for an interim period and (c) for elections to the Provincial Council to be held before 31st December 1987.
From the above material, it clearly appears beyond any doubt that the 13th Amendment and the Provincial Councils are not a solution reached through consensus between two independent states following free negotiations, but something forcibly imposed on Sri Lanka by India, with a view to placating the demands of the TULF and the other Tamil groups, contrary to the wishes of the Govt of Sri Lanka.
This explains why Indian political leaders and high officials of the Indian Govt frequently visit Sri Lanka and meet our political leaders demanding the full implementation of the 13th Amendment. That is why leaders of our Tamil Political Parties frequently rush to the Indian High Commission complaining of their grievances and requesting the Indian High Commissioner to bring pressure on our Govt to grant their demands.
As shown above, due to India’s pressure, Sri Lanka had to adopt the three main proposals made by India at the Bangalore discussions. If Sri Lanka had adopted all the proposals as suggested by India and implemented them it would have been the end of the Unitary State of Sri Lanka and created a fully Federal State. However, President Jayewardene, as a shrewd and far-sighting politician, has taken care not to give effect to some of the proposals at the implementation stage.
President Jayewardene has not adopted the Indian proposal that ‘the Governor should only act on the advice of the Board of Ministers and should explore the possibility of further curtailing the Governor’s discretionary powers’. Under the 13th Amendment the Governor, as the representative of the President, is vested with undiminished power of exercising his discretion, not on the advice of the Board of Ministers of the Provincial Council, but as directed by the President. It is this Governor’s unfettered discretion that has prevented Sri Lanka from becoming a full Federal State, with Provincial Councils as federal units.
The majority Judgement in the 13th Amendment case explains how this Governor’s discretion has prevented Sri Lanka from becoming a fully federal state, thus:
‘‘With respect to executive powers an examination of the relevant provisions of the Bill underscores the fact that in exercising their executive power, the Provincial Councils are subject to the control of the Centre and are not sovereign bodies.
‘‘Article 154C provides that the executive power extending to the matters with respect to which a Provincial Council has power to make statutes shall be exercised by the Governor of the Province either directly or through Ministers of the Board of Ministers or through officers subordinate to him, in accordance with Article 154F.
‘‘Article 154F states that the Governor shall, in the exercise of his functions, act in accordance with such advice, except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion.
‘‘The Governor is appointed by the President and holds office in accordance with Article 4(b) which provides that the executive power of the People shall be exercised by the President of the Republic, during the pleasure of the President (Article 154B (2)). The Governor derived his authority from the President and exercises the executive power vested in him as a delegate of the President. It is open to the President therefore by virtue of Article 4(b) of the Constitution to give directions and monitor the Governor’s exercise of this executive power vested in him.
‘‘ Although he is required by Article 154F(1) to exercise his functions in accordance with the advice of the Board of Ministers, this is subject to the qualification except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion.” Under the Constitution the Governor as a representative of the President is required to act in his discretion in accordance with the instructions and directions of the President.
‘‘ Article 154F(2) mandates that the Governor’s discretion shall be on the President’s directions and that the decision of the Governor as to what is in his discretion shall be final and not be called in question in any court on the ground that he ought or ought not to have acted on his discretion.
‘‘ So long as the President retains, the power to give directions to the Governor regarding the exercise of his executive functions, and the Governor is bound by such directions superseding the advice of the Board of Ministers and where the failure of the Governor or Provincial Council to comply with or give effect to any directions given to the Governor or such Council by the President under Chapter XVII of the Constitution will entitle the President to hold that a situation has arisen in which the administration of the Province cannot be carried on in accordance with the provisions of the Constitution and take over the functions and powers of the Provincial Council (Article 154K and 154L), there can be no gainsaying the fact that the President remains supreme or sovereign in the executive field and the Provincial Council is only a body subordinate to him.’’ (Pp. 322 – 323)
That is why the Tamil political parties stand for the abolition of Executive Presidency.
Part VII
President Wickremesinghe’s solution
From the statements made by President Ranil Wickremesinghe before Parliament and at public fora at different times it appears that he believes that the most urgent task before him is providing a solution to the ethnic Issue acceptable to the Tamil political parties in the North-East. Soon after assuming duties as the Prime Minister in Gotabaya Rajapaksa government in May 2022, he declared in Parliament that he would take steps to address the grievances of the People in the North and the East for meaningful devolution of power through Constitutional amendments with the consensus of other political parties. Addressing the Convocation of Kotelawala National Defence College in September 2022, he declared that he would provide a final solution to the Tamil People’s problem within the next few months and that he had already commenced discussions with Tamil MPs. In his discussions in London with the leaders of the Tamil Diaspora Groups he had told them that he would provide a solution to the Tamil People’s problem acceptable to them and sought their support for economic development in Sri Lanka. Winding up the Budget Debate in Parliament on November 22, 2022, President Wickremesinghe said that he believed that he would be able to provide a solution to the Tamil national problem satisfactory to the Tamil People, with the support of all the political parties, before the 31st of December 2022 and that it was his wish to celebrate the 75th Anniversary of National Independence on February 4, 2023 with the participation of people belonging to all nationalities in a country free from ethnic problems.
On August 9, 2023, addressing the All Party Conference in Parliament, President Wickremesinghe said that the 13th Amendment is part of the Constitution, they all are bound to give effect to all the provisions in the Constitution, and that he is ready to fully implement the 13th Amendment, granting all powers, except Police powers, to the Provincial Councils.
However, when we carefully go through his speech, we can see that he is not only standing for the implementation of the 13th Amendment fully, but is taking steps to grant powers going far beyond the 13th Amendment, and in the guise of addressing issues faced by the Provincial Councils in the implementation of their powers, is planning to enact new laws for implementation of several key proposals in the Reports of the Steering Committee and the Sub-committee on Centre – Periphery Relations of the 2016 Constitutional Assembly.
Let us examine President Wickremesinghe’s Address to All Party Conference on August 9, 2023:
‘‘The devolution of power within provincial councils is governed by the 13th Constitutional Amendment, which holds the status of the highest law of our nation. We cannot afford to disregard it. Both the executive and the legislature are obligated to execute its provisions…
‘‘Numerous issues surround the implementation of the 13th Amendment, as well as the functioning of provincial councils. … If our nation is to progress, these issues must be addressed. The 13th Amendment needs to be implemented in a manner that aligns with our country’s development and future. This can only be achieved if all parliament members come to a consensus after a thorough and open-minded discussion.
‘‘The division of power and authority between provincial councils, central government and local governing bodies lacks clarity. Consequently, subjects overlap between provincial councils and the central government, resulting in duplication of efforts and delayed actions. Instead of resolving people’s issues, problems are escalating due to these inefficiencies.
‘‘Today, I present my proposals and forthcoming actions concerning the 13th Amendment and devolution of powers to this House.
‘‘In recent years, numerous Committees associated with the Parliament have produced several documents that thoroughly examine the subject of provincial councils and their prospective trajectory. Among these documents is the interim report released on September 21, 2017 by the Steering Committee of the Constitutional Council of SL under my leadership. Importantly, all parties represented in Parliament endorsed the recommendations outlined in this interim report.
· This statement is far from the truth. Many parties represented in Parliament had their reservations on the recommendations in the Interim Report.
‘‘The Interim Report offers recommendations concerning amendments to Articles 3, 4 and 5 of the Constitution. We now bring forward these proposed constitutional amendments for consideration by the Parliament….
· Here the President speaks of recommendations in the Interim Report for amendment of Articles 3, 4 and 5 of the Constitution. Articles 3 and 5 being entrenched clauses, they cannot be amended without the approval of the people at a Referendum. Article 4, not being an entrenched clause, can be amended by two thirds majority in Parliament, without a Referendum.
· Article 4, though it is not entrenched, is a most important and vital Article in the Constitution describing in detail how the sovereignty of the people, powers of government are exercised by different organs of government – the Legislature, the Executive and the Judiciary – and enjoyed by the people.
· In many Judgements our Supreme Court has held that Articles 3 and 4 must be read and considered together in determining the constitutionality of Bills of Parliament.
· The formulation of Article 4 proposed in the Interim Report is as follows: ‘The legislative, executive and judicial power of the people shall be exercised as provided for by the Constitution.’
· At a glance this formulation appears to be innocuous. This is a crafty formulation drafted by cunning politicians enabling them to achieve their sinister motives detrimental to the people and the country to enact laws without touching Article 3.
· There is nothing in this proposed formulation of Article 4 that needs to be considered together with Article 3 in the Constitution and all the said Supreme Court Judgements will become irrelevant and the Govt would be able to pass Bills which it could not hitherto pass without being declared inconsistent with the Constitution.
The President is planning to give effect to the recommendations in the report of the Sub-committee on Centre – Periphery Relations. The following are among the main Recommendations in the Report of the Sub-committee on Centre – Periphery Relations:
(1) This Report recommends to do away with Item 1 in the Reserved List of the present Constitution ‘National Policy on all Subjects and Functions’ and make provision to ensure a consultative mechanism, involving the participation of the provincial representatives in the formulation of national policy.’
The President says: ‘‘In formulating National Policy on matters contained in the Provincial List the Central Government shall adopt a participatory process with the Provincial Council. No transfer of decentralized powers to the Central Government through the creation of national policies related to the topics within the Provincial List nor any impact on the executive and administrative powers under the jurisdiction of the Provincial Council. The executive and administrative powers required to enact the decentralised subject will remain under the jurisdiction of the Provincial Councils. The Province will retain the executive and administrative powers (implementation powers) with regard to the said power.’’
The President had stated that he would present the above proposals to Parliament as Constitutional amendments so the House could take it forward for necessary action.
· When this is done, the Provincial Council will get all the powers- legislative, executive and administrative – in respect of the devolved subject. He has craftily used the phrase – to enact the decentralised subject – instead of openly saying powers to enact legislation on the devolved subject, to cover up the real intention and the effect. Now the subject is fully devolved, the Provincial Council can pass any statute required for its implementation. The Parliament has no power to pass any legislation on the subject as it is no longer a subject in the National List.
· The Governor’s power to withhold statutes for consideration by the President also automatically disappears as there is no need for that.
In his speech the President states: ‘‘Furthermore, attention should be directed towards the report of the committee established to examine the relationship between the Parliament and the Provincial Councils, as well as the report from the Sub-committee on Centre – Periphery Relations.
‘‘Through these documents, the provincial council system is affirmed as an institutional framework that cannot be excluded from our governance system. Even parties like the JVP and JHU, which do not view provincial councils as a solution to ethnic conflicts as units of decentralization have acknowledged the need for specific amendments within the provincial council system and its unchanged aspects.
‘‘This reinforces the notion that the provincial council has become an enduring component that cannot be excised from Sri Lanka’s governmental structure or political landscape. ‘‘It is important to note that provincial councils were established not exclusively in the Northern and Eastern Provinces but across all nine provinces.’’
However, other than saying that the Provincial Councils were established and governed under the 13th Amendment to the Constitution and that they have become an enduring component that cannot be excised from Sri Lanka’s governmental structure, in his speech, the President has not given any reason as to why they should be continued or any example as to what benefit the people have received from the Provincial Councils. Nor has he pointed out how they would bring about national unity and national reconciliation through the proposed amendments.
In his own words, Provincial Councils have resulted in a colossal wastage of public funds that could have been used for the benefit of the people. This is what the President says:
‘‘Our annual expenditure on provincial councils amounts around Rs. 550 billion. Have these councils justified this investment? Has this substantial funding truly benefited the populace? This is an aspect that deserves attention. We spend Rs. 22,000 for each person every year. We are spending Rs. 22,000 that could be spent on our students for provincial councils. That is Rs. 88,000 that can be spent on a family of four. Are we getting benefits from it?’’
Provincial Councils are functioning without elected representatives and Board of Ministers since 2017. In the 9 Provincial Councils there are 9 Chief Ministers, 36 PC Ministers and 408 PC Members. The Chief Minister is entitled to the salary, perks and other benefits of a Cabinet Minister, a PC Minister entitled to the salary, perks and other benefits of a State Minister and a PC Member is entitled to half the salary, perks and other benefits of a Member of Parliament. Most probably, the above amount of Rs. 500 billion may have been calculated without calculating this expenditure. This would almost amount to the same cost required for the maintenance of the Diyawannawa lot. If this cost is also added to Rs. 500 billion one can imagine the amount of loss caused to the country.
