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Full implementation of 13A – Final solution to ‘national problem’ or end of unitary state? – Part VI

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President Jayewardene in New Delhi in November 1987 for talks with Indian Prime Minister Gandhi

by Kalyananda Tiranagama
Executive Director
Lawyers for Human Rights and Development

(Part V of this article appeared in The Island of 02 Oct. 2023)

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.

(To be continued)



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US foreign policy-making enters critical phase as fascist threat heightens globally

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Greater rapport: President Trump in conversation with President Putin. /The New York Times

It could be quite premature to claim that the US has closed ranks completely with the world’s foremost fascist states: Russia, China and North Korea. But there is no denying that the US is breaking with tradition and perceiving commonality of policy orientation with the mentioned authoritarian states of the East rather than with Europe and its major democracies at present.

Increasingly, it is seemingly becoming evident that the common characterization of the US as the ‘world’s mightiest democracy’, could be a gross misnomer. Moreover, the simple fact that the US is refraining from naming Russia as the aggressor in the Russia-Ukraine conflict and its refusal to perceive Ukraine’s sovereignty as having been violated by Russia, proves that US foreign policy is undergoing a substantive overhaul, as it were. In fact, one could not be faulted, given this backdrop, for seeing the US under President Donald Trump as compromising its democratic credentials very substantially.

Yet, it could be far too early to state that in the traditional East-West polarity in world politics, that the US is now squarely and conclusively with the Eastern camp that comprises in the main, China and Russia. At present, the US is adopting an arguably more nuanced approach to foreign policy formulation and the most recent UN Security Council resolution on Ukraine bears this out to a degree. For instance, the UN resolution in question reportedly ‘calls for a rapid end to the war without naming Russia as the aggressor.’

That is, the onus is being placed on only Ukraine to facilitate an end to the war, whereas Russia too has an obligation to do likewise. But it is plain that the US is reflecting an eagerness in such pronouncements to see an end to the Ukraine conflict. It is clearly not for a prolongation of the wasting war. It could be argued that a negotiated settlement is being given a try, despite current international polarizations.

However, the US could act constructively in the crisis by urging Russia as well to ensure an end to the conflict, now that there is some seemingly friendly rapport between Trump and Putin.

However, more fundamentally, if the US does not see Ukraine’s sovereignty as having been violated by Russia as a result of the latter’s invasion, we are having a situation wherein the fundamental tenets of International Law are going unrecognized by the US. That is, international disorder and lawlessness are being winked at by the US.

It follows that, right now, the US is in cahoots with those powers that are acting autocratically and arbitrarily in international politics rather than with the most democratically vibrant states of the West, although a facile lumping together of the US, Russia and China, is yet not possible.

It is primarily up to the US voting public to take clear cognizance of these developments, draw the necessary inferences and to act on them. Right now, nothing substantive could be done by the US voter to put things right, so to speak, since mid-term US elections are due only next year. But there is ample time for the voting public to put the correct perspective on these fast-breaking developments, internationally and domestically, and to put their vote to good use in upcoming polls and such like democratic exercises. They would be acting in the interest of democracy worldwide by doing so.

More specifically it is up to Donald Trump’s Republican voter base to see the damage that is being done by the present administration to the US’ standing as the ‘world’s mightiest democracy’. They need to bring pressure on Trump and his ‘inner cabinet’ to change course and restore the reputation of their country as the foremost democracy. In the absence of such action it is the US citizenry that would face the consequences of Trump’s policy indiscretions.

Meanwhile, the political Opposition in the US too needs to get its act together, so to speak, and pressure the Trump administration into doing what is needed to get the US back to the relevant policy track. Needless to say, the Democratic Party would need to lead from the front in these efforts.

While, in the foreign policy field the US under President Trump could be said to be acting with a degree of ambivalence and ambiguity currently, in the area of domestic policy it is making it all to plain that it intends to traverse a fascistic course. As has been proved over the past two months, white supremacy is being made the cardinal principle of domestic governance.

Trump has made it clear, for example, that his administration would be close to ethnic chauvinists, such as the controversial Ku Klux Klan, and religious extremists. By unceremoniously rolling back the ‘diversity programs’ that have hitherto helped define the political culture of the US, the Trump administration is making no bones of the fact that ethnic reconciliation would not be among the government’s priorities. The steady undermining of USAID and its main programs worldwide is sufficient proof of this. Thus the basis has been adequately established for the flourishing of fascism and authoritarianism.

Yet, the US currently reflects a complex awareness of foreign policy questions despite having the international community wondering whether it is sealing a permanent alliance with the main powers of the East. For instance, President Trump is currently in conversation on matters in the external relations sphere that are proving vital with the West’s principal leaders. For example, he has spoken to President Emmanuel Macron of France and is due to meet Prime Minister Keir Starmer of the UK.

Obviously, the US is aware that it cannot ‘go it alone’ in resolving currently outstanding issues in external relations, such as the Ukraine question. There is a clear recognition that the latter and many more issues require a collaborative approach.

Besides, the Trump administration realizes that it cannot pose as a ‘first among equals’, given the complexities at ground level. It sees that given the collective strength of the rest of the West that a joint approach to problem solving cannot be avoided. This is particularly so in the case of Ukraine.

The most major powers of the West are no ‘pushovers’ and Germany, under a possibly Christian Democratic Union-led alliance in the future, has indicated as much. It has already implied that it would not be playing second fiddle to the US. Accordingly, the US is likely to steer clear of simplistic thinking in the formulation of foreign policy, going forward.

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Clean Sri Lanka – hiccups and remedies

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President AKD launching Clean Sri Lanka programme

by Upali Gamakumara,
Upali.gamakumara@gmail.com

The Clean Sri Lanka (CSL) is a project for the true renaissance the NPP government launched, the success of which would gain world recognition. It is about more than just cleaning up places. Its broader objectives are to make places attractive and happy for people who visit or use services in the country, focusing more on the services in public institutions and organisations like the SLTB. Unfortunately, these broader objectives are not apparent in its theme, “Clean Sri Lanka,” and therefore there is a misconception that keeping the environment clean is the main focus.

People who realise the said broader objectives are excited about a cleaner Sri Lanka, hoping the President and the government will tackle this, the way they are planning to solve other big problems like the economy and poverty. However, they do not see themselves as part of the solution.

From the management perspective, the CSL has a strategic plan that is not declared in that manner. When looking at the government policies, one can perceive its presence, the vision being “A Prosperous Nation and a Beautiful Life,” the mission “Clean Sri Lanka” and the broader objectives “a disciplined society, effective services, and a cleaner environment.” If the government published these as the strategy, there would have been a better understanding.

Retaining the spirit and expectations and continuing the ‘Clean Sri Lanka’ project is equally important as much as understanding its deep idea. For this, it needs to motivate people, which differs from those motivators that people push to achieve selfish targets. The motivation we need here is to evolve something involuntarily, known as Drivers. Drivers push for the survival of the evolution or development of any entity. We see the absence of apparent Drivers in the CSL project as a weakness that leads to sporadic hiccups and free flow.

Drivers of Evolution

Drivers vary according to the nature of envisaged evolution for progress. However, we suggest that ‘the force that pushes anything to evolve’ would fit all evolutions. Some examples are: ‘Fitting to survival’ was the driver of the evolution of life. Magnetism is a driver for the unprecedented development of physics – young Einstein was driven to enquire about the ‘attraction’ of magnets, eventually making him the greatest scientist of the 20th century.

Leadership is a Driver. It is essential but do not push an evolution continually as they are not sprung within a system involuntarily. This is one of the reasons why CSL has lost the vigour it had at its inception.

CSL is a teamwork. It needs ‘Drives’ for cohesion and to push forward continually, like the Quality Improvement Project of the National Health Service (NHS) in England. Their drivers are outlined differently keeping Aims as their top driver and saying: Aims should be specific and measurable, not merely to “improve” or “reduce,” engage stakeholders to define the aim of the improvement project and a clear aim to identify outcome measures.

So, we think that CSL needs Aims as defined by NHS, built by stakeholder participation to help refine the project for continuous evolution. This approach is similar to Deming’s Cycle for continual improvement. Further, two more important drivers are needed for the CSL project. That is Attitudinal Change and Punishment. We shall discuss these in detail under Psychoactive Environment (pSE) below.

Aside from the above, Competition is another driver in the business world. This helps achieve CSL objectives in the private sector. We can see how this Driver pushes, with the spread of the Supermarket chains, the evolution of small and medium retail shops to supermarket level, and in the private banks and hospitals, achieving broader objectives of CSL; a cleaner environment, disciplined behaviuor, efficient service, and the instillation of ethics.

The readers can now understand the importance of Drivers pushing any project.

Three Types of Entities and Their Drives

We understand, that to do the transformation that CSL expects, we need to identify or adopt the drivers separately to suit the three types of entities we have in the country.

Type I entities are the independent entities that struggle for their existence and force them to adopt drivers involuntarily. They are private sector entities, and their drivers are the commitment of leadership and competition. These drivers spring up involuntarily within the entity.

Type II are the dependent entities. To spring up drivers of these entities commitment of an appointed trustee is a must. Mostly in state-owned entities, categorized as Boards, Authorities, Cooperations, and the like. Their drivers do not spring up within or involuntarily unless the leader initiates. The Government of a country also falls into this type and the emergence of drivers depends on the leader.

Type III entities have neither independent nor dependent immediate leader or trustee. They are mostly the so-called ‘Public’ places like public-toilets, public-playgrounds, and public-beaches. No team can be formed as these places are open to any, like no-man-land. Achieving CSL objectives at these entities depends on the discipline of the public or the users.

Clean Sri Lanka suffers the absence of drivers in the second and third types of entities, as the appointed persons are not trustees but temporary custodians.

The writer proposes a remedy to the last two types of entities based on the theory of pSE explained below.

Psychoactive Environment (pSE) –
The Power of Customer Attraction

Research by the writer introduced the Psychoactive Environment (pSE) concept to explain why some businesses attract more customers than others who provide the same service. Presented at the 5th Global Conference on Business and Economics at Cambridge University in 2006, the study revealed that a “vibe” influences customer attraction. This vibe, termed pSE, depends on Three Distinct Elements, which can either attract or repel customers. A positive pSE makes a business more attractive and welcoming. This concept can help develop Drivers for Type II and III entities.

pSE is not an all-inclusive solution for CSL, but it lays the foundation for building Drivers and motivating entities to keep entrants attractive and contented.

The structure of the pSE

The three distinct Elements are the Occupants, Systems, and Environment responsible for making a pSE attractive to any entity, be it a person, institution, organization, or county. Each of these elements bears three qualities named Captivators. These captivators are, in simple terms, Intelligent, Nice, and Active in their adjective forms.

pSE theorizes that if any element fails to captivate the entrant’s mood by not being Intelligent, Nice, or Active, the pSE becomes negative, repelling the entrant (customer). Conversely, the positive pSE attracts the entrants if the elements are Intelligent, Nice, and Active.

For example, think person who comes to a Government Office for some service. He sees that the employees, service, and environment are intelligent, nice, and active, and he will be delighted and contented. He will not get frustrated or have any deterioration in national productivity.

The Significance of pSE in CSL

The Elements and the Captivators are universal for any entity. Any entity can easily find its path to Evolution or Progress determined by these elements and captivators. The intangible broader objectives can be downsised to manageable targets by pSE. Achievements of these targets make the entrants happy and enhance productivity – the expectation of Clean Sri Lanka (CSL).

From the perspective of pSE, now we can redefine the Clean Sri Lanka project thus:

To make the Elements of every entity in Sri Lanka: intelligent, Nice, and Active.

How Would the pSE be A Remedy for The Sporadic Hiccups?

We have seen two possible reasons for sporadic setbacks and the discontinuity of some projects launched by the CSL. They are:

The absence of involuntary Drivers for evolvement or progress

Poor attitudes and behaviors of people and leaders

Remedy for the Absence of Drivers

Setting up a system to measure customer or beneficiary satisfaction, and setting aims can build Drivers. The East London NHS principles help build the Aims that drive type II & II entities. The system must be designed to ensure continual improvement following the Deming Cycle. This strategy will create Drivers for Type I & II entities.

This process is too long to explain here therefore we refrain from detailing.

Attitudinal Change

The most difficult task is the attitudinal and behavioural change. Yet it cannot be postponed.

Punishment as a strategy

In developed countries, we see that people are much more disciplined than in the developing countries. We in developing countries, give credit to their superior culture, mitigating ours as rudimental. The long experience and looking at this affair from a vantage point, one will understand it is not the absolute truth. Their ruthless wars in the past, rules, and severe punishment are the reasons behind this discipline. For example, anyone who fails to wear a car seatbelt properly will be fined 400 AUD, nearly 80,000 LKR!

The lesson we can learn is, that in Sri Lanka, we need strong laws and strict punishment together with a type of strategic education as follows.

Psychological Approach as a Strategy

The psychological theory of attitude formation can be used successfully if some good programmes can be designed.

All attitude formations start with life experience. Formed wrong or negative attitudes can be reversed or instilled with correct attitudes by exposure to designed life experiences. The programmes have been developed using the concepts of Hoshin Kanri, Brainstorming, Cause-and-Effect analysis, and Teamwork, in addition to London NTS Quality Improvement strategies.

The experience and good responses we received for our pSE programs conducted at several institutions prove and have built confidence in our approach. However, it was a time, when governments or organisations did not pay much attention to cultural change as CSL expects in the country.

Therefore, we believe this is a golden opportunity to take the CSL supported by the pSE concept.

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Visually impaired but ready to do it their way

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The visually impaired artistes. From Left: Theekshana (rhythm guitar and vocals), Sadun (vocals and keyboards) Akila, (keyboards and vocals), Navoda (drums), Samudra (compere and vocals), Randi (violin and vocals), Sethini (keyboards and vocals), Rashini (keyboards and vocals), Dinesh (percussion and vocals), Tharidu (lead guitar and vocals) and Jonathan (bass guitar and vocals), with Melantha Perera (behind – centre)

Although they are visually impaired youngsters, under the guidance of renowned musician Melantha Perera, these talented individuals do shine bright … hence the name Bright Light.

Says Melantha: “My primary mission is to nurture their talent and ensure their sustainable growth in music, and I’m thrilled to announce that Bright Light’s first public performance is scheduled for 7th June, 2025. The venue will be the MJF Centre Auditorium in Katubadda, Moratuwa.”

Melantha went on to say that two years of teaching, online, visually impaired youngsters, from various parts of the island, wasn’t an easy ride.

There were many ups and downs but Melantha’s determination has paid off with the forming of Bright Light, and now they are gearing up to go on stage.

According to Melantha, they have come a long way in music.

“For the past few months, we have been meeting, physically, where I guide them to play as a band and now they show a very keen interest as they are getting to the depth of it. They were not exposed to English songs, but I’ve added a few English songs to widen their repertoire.

Melantha Perera: Invented a notation
system for the guitar

“On 7th June, we are opening up for the public to come and witness their talents, and I want to take this product island-wide, giving the message that we can do it, and I’m hoping to create a database so there will be a following. Initially, we would like your support by attending the show.”

Melantha says he didn’t know what he was getting into but he had confidence teaching anyone music since he has been in the scene for the past 45 years. He began teaching in 2015,

“When I opened my music school, Riversheen School of Music, the most challenging part of teaching was correcting tone deaf which is the theoretical term for those who can’t pitch a note, and also teaching students to keep timing while they sang and played.”

Melantha has even invented a notation system for the guitar which he has named ‘MelaNota’. He has received copyrights from the USA and ISO from Australia, but is yet to be recognised in Sri Lanka.

During Covid-19, Melantha showcased MelaNota online and then it was officially launched with the late Desmond De Silva playing one of his tunes, using MelaNota.

Melantha says that anyone, including the visually impaired, can play a simple melody on a guitar, within five minutes, using his notation system.

“I’ve completed the system and I’m now finalising the syllabus for the notation system.”

Melantha has written not only for the guitar, but also for drums, keyboards, and wind instruments.

For any queries, or additional information, you could contact Melantha at 071 454 4092 or via email at thebandbrightlight@gmail.com.

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