By Kalyananda Tiranagama
Executive Director
Lawyers for Human Rights and Development

(First part of this article appeared yesterday)

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.

(To be continued)

by Jehan Perera

The country to which President Ranil Wickremesinghe returned after his international successes in the Americas remains in dire straits.  In both Cuba and New York, the president made his mark at the podium holding his own with giants on the world stage.  Addressing heads of state at the G77 Summit in Cuba, the president spoke of the significance of science, technology and innovation in shaping the future of developing nations.  He referred to the new technological divide emerging in the 21st century, necessitating the adoption of digitalisation and new technologies, such as Big Data, IoT, AI, Blockchain, Biotechnology and Genome Sequencing, to bridge the gap.  He also reaffirmed Sri Lanka’s commitment to supporting the new Havana Declaration and called for the collective voice of G77 and China to be heard in international fora.

Addressing heads of state at the UN General Assembly, the President drew upon his experience in peacebuilding when he called for the expansion of the UN Security Council’s composition as essential for world peace. He also highlighted the reforms he initiated in the economic, financial, institutional and reconciliation fronts as being directed towards rebuilding trust and confidence between the people and the government and as laying the foundation for economic stabilization and recovery. However, the president faces formidable challenges in this regard.  The country’s economy, which shrank by over 7 percent last year and by 11 percent in the first quarter of this year, continued its downward plunge with a further shrinkage by 3 percent in the second quarter. The much touted absence of shortages and queues is not due to the economic performance picking up but because people have less money to spend.

 With inflation in the past year having halved the real income of people, and high taxation of those in the tax net further impoverishing those in the middle income and professional categories, they are leaving the country in droves leaving behind gaping holes in various sectors of crucial importance to the economy.   But the tax reforms that have impacted on the middle and professional classes directly and the increased sales taxes that have impacted on the poor are still not covering the gaping hole in the country’s finances that need to be filled for IMF support to be forthcoming.  Government revenue has seen a shortfall of Rs. 100 billion as compared to the revenue target agreed with the IMF.  There is a clear need to utilize tax money in a more streamlined way without it being misallocated or pilfered on a large scale which is widely believed to be a continuing practice in the country.

 INEQUITABLE BURDENS

 The indications are that further economic hardships will need to be placed upon the people.  The problem is that the government is placing the burden disproportionately on the poor and not on the rich.   Dr Nishan de Mel who heads the Verite Research think tank that has been doing in-depth analyses of Sri Lanka’s encounter with the IMF disagrees with the government’s position that banks would collapse if the banking system had to bear some burden of domestic debt restructuring. He points out that this conclusion had been reached without any analysis. “All the other countries that restructured debt shifted part of burden debt restructuring on to the banking sector. There are ways of protecting banks during debt restructuring. The government has placed all the burden on the pension funds and says that the impact on these funds are limited. It also claims that banks will collapse if they are affected by domestic debt restructuring. So, which claim is true? Why can’t the banks share part of the burden?”

 There is a general consensus that the burden of economic restructuring is falling disproportionately upon the poorer sections of society.  Dr de Mel has also pointed out that the government has been privatising profits while socialising losses because of the lack of accountability. “When those in power work for the benefit of themselves and their friends, they ensure that a small group of people enjoy the benefits of growth or implement policies that benefit targeted groups. However, when things go wrong, for example, when we have to restructure domestic debt, those in power make sure that the people in general bear the losses. This is what we have seen in Sri Lanka.”  This view is also to be seen in a Civil Society Governance Diagnostic Report produced by a collective of civil society organisations and authored by Prof Arjuna Parakrama which states that “The current growing sense of economic injustice has been exacerbated by the fact that the architects of the economic crisis do not bear any part of the burden of its proposed reform, which has been, again, firmly thrust, without any public dialogue, on the victims of this very crisis.”

 Making the situation more prone to instability is the fact that this inequitable burden sharing is being done by a government that has little political legitimacy.  Barely a year and a half ago, those who are currently ministers in the government were on the run, hiding from the wrath of vast multitudes of people who were demanding that they be held to account for having bankrupted the country through their corrupt and venal deeds, whether real or imagined.  All of those who are now ministers (with the exception of a handful who have crossed over from the Opposition) were compelled to resign from their ministerial positions.  They were legally reappointed by President Ranil Wickremesinghe after he was legally elected president by the votes of 134 parliamentarians.  But a legitimacy deficit continues to haunt the government and makes it an insecure one though presently firmly ensconced in power.  The way to gain legitimacy to bridge the trust deficit is to be fair and just in making decisions that impact upon all the people.

 UNDEMOCRATIC LAWS

 Unless remedial steps are taken the government’s current engagement with the IMF may be difficult to sustain.  This is not only because the government is failing to meet the targets set by the IMF.  There is also a lack of confidence about the IMF programme among the general population.  A public opinion survey conducted by Verite Research has shown that about 45 percent of Sri Lankans believe the IMF will make things worse for the economy in the future.  Only 28 percent of the population believes Sri Lanka’s ongoing programme with the IMF will make things better for Sri Lanka’s economy in the future. The mounting difficulties faced by people in coping with their economic circumstances can lead to protests and agitation campaigns.  The logic of competitive electoral politics can also come into play with different political parties making their own promises to alleviate the economic hardships on the people even at the cost of the economic reform programme agreed with the IMF.

 There appear to be trial balloons put out by government members that safeguarding the IMF programme may require a moratorium on elections.  The government has shown itself willing to take this route ostensibly for the sake of the economy.  Even before the agreement with the IMF, the government postponed local government elections that had been set for March of this year citing the need to focus on economic recovery rather than hold elections.  Recently, MP Vajira Abeywardena, chairman of the UNP of which the president is the leader, has stated that the government would not be able to meet the economic needs of the people if funds were allocated through the 2024 Budget for the presidential election which is due in a year.  The emergence of two controversial laws that can restrict freedom of expression and the ability to engage in public protest may need to be seen in this context.

 The draft Anti-Terrorist Act which seeks to replace the Prevention of Terrorism Act is wider in scope and gives the government the power to arrest persons who are engaging in public protest or trade union action.  Those who are charged as “intimidating the public or a section of the public” can be arrested under this law.  The Online Safety bill has the potential to curtail the use of the internet for political communication purposes.  It will establish a five-member commission, all of whom will be appointed by the president, and they will be tasked with determining the veracity of online content.  The commission appointed by the President will be able to proscribe or suspend any social media account or online publication, and also recommend jail time for said offenses.  The Bar Association has said that both these draft laws seriously impinge on the liberty and freedom of the people, will have a serious impact on democracy and the rule of law in the country and called for their withdrawal.  If these two laws are passed by parliament, they will make it more difficult to challenge the government even when it is going on a wrong path.  But with the economic situation continuing to get worse, and the suffering of vast masses of people increasing, repression through the use of law and the security forces will not be a sustainable option.

The Lawyers’ Collective condemns the latest version of the Anti-Terrorism Bill and the Online Safety Bill gazetted in September 2023. The Government of Sri Lanka has failed to respond to the serious and fundamental concerns raised about the Anti-Terrorism Bill gazetted in March this year. The government also failed to adopt any transparent and accountable process through which the Bills were explained, justified and robust public consultation facilitated before they were gazetted. The definitions adopted for ‘terrorism’ and ‘false statement’, and related offences created under the two Bills are excessively broad and vague, and thus do not represent a measured and proportionate means of serving specific and necessary law and order objectives.

Indeed, the Anti-Terrorism and Online Safety Bills represent an attempt to institutionalise excessive executive discretionary power over a broad range of ordinary activities of the citizens of Sri Lanka. At a time when the country’s democracy quotient is at a historical low, attempts to rush into enactment dangerous laws that have a high potential to crush dissent and curb civil liberties causes much alarm. Citizens of this country are currently making a wide range of demands on their elected representatives and government officials in the context of the deep economic crisis and the bearing it has on their lives.

Democracy demands that the widest possible space be created at this time to hear citizens’ grievances and to engage citizens and citizen groups, especially vulnerable communities. The intolerance represented by the two proposed laws towards legitimate dissent, critique, opposition and organising around different ideas and solutions for governance in Sri Lanka is a direct threat to democracy, civil liberties and the role of the judiciary in protecting citizens’ sovereignty against executive capture.

Sri Lankan recent history is marked by terrible violence and social and economic devastation caused by repressive approaches to unrest and inequality in our society and polity. Having emerged from decades of war and violent insurrection, the government and opposition parties would be mindful of the responsibility that they bear towards the current and future citizens of this country. In this moment, the legal profession has a role and responsibility to act to safeguard people’s treasured freedoms.

The Lawyers’ Collective calls for the immediate withdrawal of the two Bills. The Collective also calls for the adoption of a transparent process of consultative law making and the proposal of executive and legal measures that are proportionate and responsive to the needs of the people. The Collective demands that the government desist from enacting laws that will harm the very foundations of democracy in Sri Lanka. Such laws that grant the executive excessive powers to curtail citizen’s fundamental rights to freedom of expression and thought, freedom of association, freedom of assembly and liberty erode the sovereignty of the people that is the very basis of Sri Lanka’s constitution.

On behalf of the Lawyers’ Collective

Rienzie Arsecularatne, President’s Counsel.

Upul Jayasuriya, President’s Counsel

Jayampathy Wickramaratne, President’s Counsel

Geoffrey Alagaratnam, President’s Counsel

Dinal Phillips, President’s Counsel

Saliya Pieris, President’s Counsel

Lal Wijenayake, Attorney-at-Law

Upul Kumarapperuma, Attorney-at-Law

K.W. Janaranjana, Attorney-at-Law

Nuwan Bopege, Attorney-at-Law