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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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Inside the ancient Indian ritual where humans become gods

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Each theyyam performance is both a theatrical spectacle and an act of devotion [BBBC]

For nearly 300 years, a family’s ancestral house in India’s southern state of Kerala has been the stage for theyyam, an ancient folk ritual.

Rooted in ancient tribal traditions, theyyam predates Hinduism while weaving in Hindu mythology. Each performance is both a theatrical spectacle and an act of devotion, transforming the performer into a living incarnation of the divine.

The predominantly male performers in Kerala and parts of neighbouring Karnataka embody deities through elaborate costumes, face paint, and trance-like dances, mime and music.

Each year, nearly a thousand theyyam performances take place in family estates and venues near temples across Kerala, traditionally performed by men from marginalised castes and tribal communities.

It is often called ritual theatre for its electrifying drama, featuring daring acts like fire-walking, diving into burning embers, chanting occult verses, and prophesying.

Historian KK Gopalakrishnan has celebrated his family’s legacy in hosting theyyam and the ritual’s vibrant traditions in a new book, Theyyam: An Insider’s Vision.

KK Gopalakrishnan A detached house surrounded by a low wall and some patchy grass

The theyyams are performed in the courtyard of Mr Gopalakrishnan’s ancient joint family house (above) in Kasaragod district. Hundreds of people gather to witness the performances.[BBC]

The theyyam season in Kerala typically runs from October to April, aligning with the post-monsoon and winter months. During this time, numerous venues near temples and family estates, especially in northern Kerala districts like Kannur and Kasaragod, host performances.

The themes of performances at Mr Gopalakrishnan’s house include honouring a deified ancestor, venerating a warrior-hunter deity, and worshipping tiger spirits symbolising strength and protection.

KK Gopalakrishnan Rituals at the Kamballoore Kottayil Ākko kāv

Before the performance honouring a local goddess, a ritual is conducted in a nearby forest, revered as the deity’s earthly home. [BBC]

Following an elaborate ceremony (above), the “spirit of the goddess” is then transported to the house.

Mr Gopalakrishnan is a member of the Nambiar community, a matrilineal branch of the Nair caste, where the senior-most maternal uncle oversees the arrangements. If he is unable to fulfill this role due to age or illness, the next senior male member steps in.

KK Gopalakrishnan An older woman holding a brightly coloured red display, surrounded by other women

Women in the family, especially the senior-most among them, play a crucial role in the rituals.[BBC]

They ensure traditions are upheld, prepare for the rituals, and oversee arrangements inside the house.

“They enjoy high respect and are integral to maintaining the family’s legacy,” says Mr Gopalakrishnan.

KK Gopalakrishnan A man with a large headdress performing with fire, carrying burning torches

The spectacle is a blend of loud cries, fiery torches, and intense scenes from epics or dances. [BBC]

Performers sometimes bear the physical toll of these daring feats, with burn marks or even the loss of a limb.

“Fire plays a significant role in certain forms of theyyam, symbolising purification, divine energy, and the transformative power of the ritual. In some performances, the theyyam dancer interacts directly with fire, walking through flames or carrying burning torches, signifying the deity’s invincibility and supernatural abilities,” says Mr Gopalakrishnan.

“The use of fire adds a dramatic and intense visual element, further heightening the spiritual atmosphere of the performance and illustrating the deity’s power over natural forces.”

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Death of tusker sparks serious conservation concerns

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Deegadanthu

By Ifham Nizam

In a tragic incident, Deeghadanthu, the largest tusker in Kalawewa National Park, fell victim to electrocution on the night of November 27th, marking another devastating loss in Sri Lanka’s conservation history. This incident reflects a recurring tragedy in the region, where famed tuskers such as Barana, Revatha, and Walagamba have also met untimely deaths over the years.

Habitat degradation and development pressures

The Kalawewa National Park, renowned for its high population of tuskers, has faced severe ecological stress due to poorly planned development projects.

Supun Lahiru Prakash, an authority on elephants and environmental conservation, is of the view that “the failure to account for environmental factors in impact assessments for projects like the Moragahakanda Irrigation Project has confined elephants to small forest patches, disrupting their natural feeding behaviours.” The presence of invasive plant species and cattle grazing within the park further exacerbates this crisis, he claims.

The carcass of Deegadanthy

Human-Elephant conflict

According to Supun, who has studied elephant mortality trends extensively, the three main causes of elephant deaths—electrocution, gunshots, and the use of explosives like Hakka Patas—account for over 60 percent of fatalities. “The lack of collaboration among authorities, including the Department of Wildlife Conservation, the Ceylon Electricity Board, and law enforcement, is evident from the repeated electrocutions of tuskers in the Kalawewa region,” he says.

Despite the existence of a National Action Plan for Mitigation of Human-Elephant Conflict, implementation remains stalled. Supun points out that “each year, we lose hundreds of elephants and dozens of human lives to this conflict, yet the government has failed to prioritise this critical issue.”

Economic and cultural value of Elephants

Elephants play a vital role not only in biodiversity but also in Sri Lanka’s economy. In 2024, the country’s national parks generated Rs. 2 billion in just the first quarter, with elephants being the primary draw for tourists. Supun notes, “The overall economic value of a single wild elephant to Sri Lanka’s tourism is close to Rs. 4 million annually. Yet, we continue to lose these iconic animals without accountability or actionable conservation strategies.”

Lessons from Deeghadanthu’s legacy

Supun draws parallels between Sri Lanka and other countries like Kenya, where elephants like the legendary tusker Ahmed were given 24-hour protection by government-deployed rangers. “Deeghadanthu’s death underscores the urgent need for Sri Lanka to adopt a proactive approach to wildlife conservation, similar to global best practices,” he says.

The Department of Wildlife Conservation currently operates with less than 60 percent of its approved workforce, leaving vast areas unprotected. Supun warns that “unless significant reforms are made, the future of Sri Lanka’s wildlife and its conservation efforts remains bleak.”

Deeghadanthu’s untimely demise serves as a sobering reminder of the urgent need for systemic change. If lessons can be learned from this tragedy, it could pave the way for stronger conservation policies and a renewed commitment to protecting Sri Lanka’s wildlife heritage.

The Island

reliably learns that strict action is on the cards for the Director General of Wildlife Conservation Department.

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The President’s Envisioning of a Post-Racial Sri Lanka

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by Rajan Philips

If President AKD’s inaugural Policy Statement at the opening of parliament 10 days ago was mellifluous in its delivery, it was also meticulous in detail, and sweeping in its themes and vistas. He literally spoke with words and numbers effortlessly flowing, but without notes or the help of the teleprompter even though he had the text in front of him. It was not soaring oratory but captivating eloquence. More like NM in English; and Bernard Soysa, given the pirivena roots of his education, in both Sinhala and English. Yet as an old Peradeniya friend of mine told me last week, what NM couldn’t do AKD has done. And in more ways than one.

The subtitles in the English text of the Policy Statement are quite revelatory. The middle of the speech, taking nearly half its length, is all about the economy. Naturally so and the economic themes and content are indicative of both the government’s approach to stabilizing and growing the economy, and the President’s studiousness in mastering the file. There is no other practical alternative to abiding by the agreements with the IMF entered into by the previous government, while looking for better agreements in what is left of debt restructuring and, more importantly, for restructuring the economy on a sustainable growth path.

Those who are chiding the government for going along with the IMF would also have been the first people to lambaste it for radical irresponsibility if it had chosen to repudiate the agreement. There are still uncertainties and challenges ahead, but as I wrote last week, there could not have been a better political start for the post Ranil-Rajapaksa era than what is being initiated by President AKD and his NPP government.

The start is even more impressive when one looks at the President’s thematic assertions on giving no room for racism and on building national unity; accepting a multi-party system, restoring the dignity of parliament and building a democratic state; and reforming the public service, affirming the rule of law, and delivering justice to victims of crime no matter who the perpetrators of crimes are. Somewhat of a mundane theme amidst all the lofty ones is about cleaning Sri Lanka. Mundane, but a very crucial and long overdue cleaning initiative.

There are those who are ready to smirk at what they see as the JVP’s fatefulness in having to uphold and abide by a political system that it once strove to overthrow. But such self-amusements are rather superficial, for the real irony is that the JVP is now having to save and stabilize not only the economy but also the political system both of which were undone by the same forces that once unleashed state violence to protect them from the JVP. Equally, there is no need for the JVP to show its democratic credentials to anyone in the west when western democracies are electing the real antichrists of democracy such as Donald J. Trump.

What is strikingly unique about these themes and their contents are their sincerity and seriousness that should be apparent to anyone who would view President AKD’s Policy Statement in a historical perspective and in comparison to presidential declarations and statements that we have had to suffer through in the last 20 years.

No Room for Racism

Of all the themes that President AKD touched on in his Policy Statement, the most path breaking thrust is in the commitment to end racism in Sri Lanka. It needs to be said that Sri Lankans – Sinhalese, Tamils, Muslims, Buddhists, Hindus, Muslims and Christians, do not belong to different races in the biological sense. That race is a social construct and not a biological reality is now universally accepted except for flat-earth counterparts in social studies.

In Sri Lanka, the tradition of identifying Sinhalese, Tamils and Muslims, not to mention the castes among the former two, as different races was conclusively put to rest, at least among social scientists and progressive activists, by the path breaking 1979 seminar on “Ethnicity and Social Change in Sri Lanka” organized by the Social Scientists Association. Kudos for that belongs exclusively to Kumari Jayawardena and Charles Abeysekera.

Yet the term race is commonly used to describe the two (Sinhala and Tamil) linguistic groups and the two religious (Moors and Malays) groups. Especially in the Sinhala and Tamil languages in which the same term(s) is used overlappingly to identify caste, ethnicity and race. Race and racism are also political terms that are universally used to describe and denounce discrimination based on differences of colour, place of origin, language and religion.

The President makes it clear that his assertion that there is no room for racism is really an accusation that there has been too much room for ‘racism’ for too long in Sri Lanka – in the shaping of the country’s political framework and its power structures “along regional, ethnic, or religious lines.” And he goes on “such political divisions inevitably resulted in growing alienation among communities.”

This is quite a perceptive understanding because in many political societies pre-existing social and cultural differences aggravated political conflicts between communities. In Sri Lanka, it has been the other way around. Ethnic differences over every aspect of politics led to a breakdown of relationships between communities. Political differences spanned the entire spectrum of the state and its responsibilities – on citizenship, language rights, representation, and access to land, employment and education.

And the President’s dialectic that racism provokes counter-racism, and “racism in one part feeds and strengthens nationalism in another,” brings to mind a rather combative version of the same sentiment by TULF leader A. Amirthalingam in his maiden speech in parliament, as a 29 year old Federal Party (ITAK) MP in 1956, that it is “communalism of the majority that begets communalism of the minority.”

President AKD is striking a remarkably conciliatory note, and without pointing fingers at this or that community he is drawing on the electoral sweep in which “all communities across all provinces have trusted us and granted us this power.” He is also firm in assuring that his government will not allow “a resurgence of divisive racist politics” or any “form of religious extremism to take root again in Sri Lanka.” And again that no one “will be allowed to use nationalist or religious rhetoric as a means to gain political power in this country.”

Flights of Oratory

Sri Lankan politics has seen flights of oratory extolling national unity and equality for the first 20 years after independence. SWRD Bandaranaike waxed eloquent at the State Council that contributed to JR Jayewardene’s original bill on the national languages being changed to include both Sinhala and Tamil as official languages. Even though he would repudiate the original arrangement as Prime Minister in 1956, SWRD was never unclear about what was needed for Sri Lanka’s unity.

He went poetic envisaging an island that would someday be a “painted ship on a painted ocean.” Colvin R de Silva was polemical and blunter in presaging that with two languages there would be one country, but with one only there could be two of them. NM was inflexible in his stance on the parity of languages, even though it may have cost the Left an election or two, but it held the country together as both Amirthalingam and AJ Wilson would later acknowledge in their obituaries of NM.

There was more of them in the late 1960s. GG Ponnambalam, the father of fifty-fifty, was sincere and genuine when he perorated in parliament that “through fair weather and foul, in sunshine and in rain, I have held aloft the ideal of a united Lanka.” In fact, “from Point Pedro to Point Dondra,” was Ponnambalam’s rhetorical rejoinder to what he called the peninsularity in the idea of Tamil federalism. To sum it up, at the 50th anniversary of Sri Lanka’s independence, President Chandrika Kumaratunga acknowledge on behalf of everyone that “we have failed in the essential task of nation building.”

Now there is a chance for the remaking of a broken nation. President Dissanayake seems convinced of the great opportunity he, his government and the new parliament have, and he seems determined to make good use of it. The rhetorical flourishes of the past were all sincere expressions of individual political leaders. But none of them drew on electoral support from every part of the country and could be backed by the power of the state to the extent that President AKD and the NPP now seem to have.

Put another way, what AKD and his gallant team are manifesting is an organic possibility and not a synthetic experiment. In the past, resolving the inter-ethnic or the national question was attempted primarily through top-down initiatives and consociational (relating to or denoting a political system formed by the cooperation of different social groups on the basis of shared power) agreements. Now the initiative is equally grass-root at the electoral level and committedly government-led at the state level. This new fusion has never been experienced before.

There is authenticity as well, but it is the authenticity of the progressive kind and not the chauvinistic variety of old. So, there is plenty of room for optimism. The prospects are not only pleasing, but those in power are also not vile. At the same time, there is no denying the pitfalls ahead even though there is none that is obvious now. For caution, just look at the fall of the United States of America. From the cloudy heights of post-racial America that Barak Obama briefly heralded to the racial pits of Donald Trump. Fortunately for Sri Lanka, it may be that the country has had its share of Trumps already and is now ready for a new beginning.

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