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)

By Jehan Perera

The government has allocated Rs 11 billion in the provisional budget for next year for the presidential elections due in September. This is a positive indication that the government intends to hold those elections.  Free and fair elections being held when due is a core concept of a functioning democracy. This was called into question earlier in the year when local government elections were postponed.  They were due in March but were postponed on multiple occasions and now have been cancelled. There is no indication when they might be held. The government justified its refusal to hold those elections on the grounds that the country was facing an economic crisis and the money could be better spent elsewhere.

The government’s refusal to hold the local government elections was challenged in the courts.  The Supreme Court decided that the money allocated in the budget for elections should not be blocked by the government and needed to be released for the purpose of conducting those elections.  Without respecting this judicial ruling, government members threatened to summon the judges who made the ruling to Parliament on the grounds that the judiciary could not decide on money matters that were the preserve of Parliament. They argued that the powers and privileges of Parliament had been violated by the order issued by the Supreme Court instructing the government to refrain from withholding funds for the polls. There was an outcry nationally and internationally and the government members did not proceed with their dubious plan to summon the judges before Parliament.

Due to the government’s prioritization of the economy over elections, the prospects for elections continue to be challenging.  The economic crisis is in full swing with further price increases in fuel costs taking place and electricity costs about to be hiked.  The economy continues to shrink though at a slower rate than before. The government’s failure to obtain the second tranche of IMF support is a warning regarding the precarious condition of the economy.  The IMF has said that Sri Lanka’s economic recovery is still not assured.  It has also said that the government has not met the economic targets set for it, particularly with regard to reducing the budget deficit due to a potential shortfall in government revenue generation. The IMF has said the second tranche under its lending programme would only be released after it reaches a staff-level agreement, and there was no fixed timeline on when that would take place

PARLIAMENTARY PRIVILEGE

Unfortunately, the willingness of government members to challenge judicial decisions with regard to the electoral process is having its repercussions elsewhere.  Parliamentarians have made use of parliamentary privilege to criticize the judiciary, including by naming them individually.   The purpose of parliamentary privilege is to enable the elected representatives of the people to disclose the truth in the national interest.  But this is a power that needs to be used with care and caution, especially if it is used to malign or insult individuals.  Those who have the protection of parliamentary privilege need to understand it is a very powerful privilege, and they should exercise the privilege with restraint. It is the abuse of privilege that brings it into disrepute and undermines the wider perception of the central role that privilege plays.

The conduct of some parliamentarians has now reached a point where a judge who was deciding on controversial cases involving ethnic and religious conflict has chosen to resign and even leave the country.  Successive rulings made by the judiciary in those cases appear to have been ignored by government authorities. The judicial decisions and rulings made have been subjected to disparaging and insulting remarks in Parliament and outside. Mullaitivu District Judge Saravanarajah, who ruled on the controversial Kurunthurmalai (Kurundi Viharaya) case, resigned and fled Sri Lanka due to alleged threats and pressure. In a letter shared on social media, the judge told the Judicial Services Commission that he was facing threats to his life. Such pressures placed on the judiciary are clearly unacceptable in a democratic country, especially in situations where the judiciary is being called on to defend the rights of the people who are being threatened by government overreach.

At the present time, democratic freedoms and space for protest that exist in the country are being endangered by the government’s efforts to silence public protest and criticism by means of the proposed Anti-Terrorist Act (ATA) and the Online Safety Act which are to be placed before Parliament this week. The draft ATA gives the government the power to arrest persons who are engaging in public protest or trade union action who can be charged for “intimidating the public or a section of the public”. The Online Safety Act seeks, among others, to “protect persons against damage caused by false statements or threatening, alarming, or distressing statements.”  It will establish a five-member commission appointed by the President which will be able to proscribe or suspend any social media account or online publication, and also recommend jail time for alleged offenses which can be highly subjective.

ELECTIONS AGAIN

The judiciary is being called upon to defend fundamental rights and freedoms in the face of the government’s bid to take restrictive actions. The draft ATA has been opposed by opposition political parties and by human rights organisations since it appeared about six months ago.  The ATA was drafted as an improvement to the Prevention of Terrorism Act which had been highlighted by the EU as objectionable on human rights grounds for the purposes of obtaining the GSP Plus tax benefit for Sri Lankan exports.   Additionally, it has brought in the Online Safety Act as a surprise instrument to stymie the dissemination of information that people need regarding the non-transparent conduct of the government. With the political and economic crisis in the country getting worse, it appears that the government is determined to go ahead with these laws.

The failure of the government to fulfil many of the IMF’s transparency requirements, such as posting its contracts and procurements on the website, and explain its rationale for tax holidays and those who benefit, have contributed to the loss of confidence in the government’s commitment to the economic reform process.  There is a widespread belief that corruption is rampant and that the inability to get new foreign investment is partly due to this difficulty of doing business in Sri Lanka, quite apart from the leakage of government revenues. The government needs to address these issues if it is to win the trust and confidence of the people and cushion the difficulties faced by people in coping with their dire economic circumstances. In particular, it needs to hold elections that can bring in new leaders that the country needs and cleanse the Augean Stables.

Despite the allocation of Rs 11 billion for presidential elections in the provisional budget for 2024, there remain questions regarding the government’s plans for the future.  The Chairman of the UNP, Wajira Abeywardena, is reported to have said that the presidential election may have to be postponed as it could undermine ongoing economic recovery measures.  The provisional budget for 2024 is Rs 3860 billion, of which Rs 11 billion would seem to be a small fraction. However, the budget for 2023 was Rs 3657 billion, and the Rs 10 billion that was needed for the local government elections was likewise only a small fraction of that budget. But those elections were not held and the government argued that this money was better spent on development than on elections. The issue of postponement of elections due to the ongoing economic crisis may have to be faced once again when the presidential elections are due. The courts would be the better option for undemocratic actions to be contested than the streets. The courts and the judiciary need to be kept strong and respected. The judiciary contributes to the trust of civilians in good governance and sustains social peace which should not be compromised.

The Gypsies, with the late Sunil Perera at the helm, came up with several appealing and memorable songs, including ‘Lunu Dehi.’ And this title is again in the spotlight…but in a different form.

Dushan Jayathilake, who was with the Gypsies for 19 years, playing keyboards, is now operating his own band…under the banner of LunuDehi.

Says Dushan: “I was really devastated when Sunil Perera left this world. However, I was fortunate enough to meet Nalin Samath, who stepped in to play guitar for the band. During Nalin’s one year stint with the Gypsies, we discussed my dream of starting my own band. Sunil had always urged us to work on our original compositions and follow our own unique path.”

With Sunil’s words in mind, Dushan and Nalin decided to leave the Gypsies and strike out on their own and that’s how LunuDehi became a reality…a year ago.

“We were pondering over several names as we wanted to have a name that would reflect the distinctive sound and style of our music. Ultimately, it was my wife who came up with the name LunuDehi.”

Both Dushan and Nalin agreed that this name is perfect, adding that “Since lunu dehi is a side dish used in Sri Lankan cuisine to make food have a bit of a kick to it, our music, too, gives listeners that much-needed kick.”

Elaborating further, Dushan said: “As a musician with 26 years of experience in the industry, 19 of which were spent playing keyboards with the Gypsies, I can say starting my own band was a dream come true. And when I met Nalin Samath, who has 35 years of experience in the music industry and was the original guitarist for Bathiya and Santhush, I knew that we had the talent and skill to co-lead a band.”

Dushan Jayathilake: His wife came up with the name LunuDehi

As the lead composer and arranger for LunuDehi, Dushan says he is constantly in awe of the incredible individual talents that each of the members brings to the table, and this is what he has to say about the lineup:

Nalin Samath

, in addition to being an accomplished guitarist and vocalist, is a true entertainer, always keeping the crowd engaged, and on their feet.

Ken Lappen,

son of bassist Joe Lappen, has a gift for composing and arranging pop hits. His work includes ‘Mal Madahasa’ by Randhir and ‘Dias’ by Freeze.

Thisal Randunu,

former guitarist of NaadhaGama, who has played for prestigious concerts, is our current rhythm guitarist and vocalist. He is also an amazing composer.

Nadeeshan Karunarathna

, our drummer, has played for a number of bands and is always eager to learn more about music.

TJ,our vocalist, has an incredible voice that leans toward the deeper side and she can sing in over 10 languages. She participated in the first season of The Voice Sri Lanka in 2021 and is also a talented songwriter and composer.

Dushan himself has composed and arranged music for some of the big names in the local music scene, including The Gypsies, BnS, Lakshman Hilmi, and Chamara Weerasinghe.

Dushan went on to say that as a policy, they have always been selective about the venues they perform at.

“While we enjoy playing music for all types of audiences, we have always prioritized concerts, weddings, dinner dances, and corporate events over hotel lobbies, nightclubs, and pubs.

LunuDehi’s musical journey began at a BnS show held in Polonnaruwa. Since then, they have collaborated with BnS at concerts and have become known for their unique sound and energetic performances.

They will be backing BnS on their North America and UK tour in 2024.

Nalin Samath: Co-founder of LunuDehi

“This is a huge milestone for our band, and we cannot wait to share our music with new audiences around the world,” says Dushan.

Whatsmore, next month, they are off to Indonesia to perform at ‘Sri Lanka Night 2023’ to be held at Hotel Le Meridien, Jakarta, on 25th November.

Dushan says he is grateful to those who have supported them and given them the encouragement to break into the scene.

“I would also like to extend my appreciation to Sunil Perera, who, unfortunately, is no longer with us. He was like a second father to me, and never failed to push me to be my best self, also Piyal Perera, who has been supporting us from the start, as well as Bathiya Jayakody and Santhush Weeraman, who have given us numerous opportunities to shine as a group.

“Our ultimate goal is to establish ourselves as a household name, with a repertoire of memorable songs that will secure numerous concert bookings and tours, hopefully worldwide.”

Their debut original is called ‘Rice and Curry.’