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US House of Representatives Res. 413 on Sri Lanka

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by Neville Ladduwahetty

The bipartisan House Res. 413 introduced by Congresswoman Deborah Ross (for herself, Mr. Johnson of Ohio, Mr. Danny K. Davis of Illinois, Mr. Sherman, and Ms. Manning) on May 18, 2021 was referred to the Committee on Foreign Affairs.

The Preambular Paragraphs contain the background material from which the initiators of Res. 413 resolved on seven issues to be presented to the Foreign Affairs Committee.

These seven issues are presented below:

(1) acknowledges the 12th anniversary of the end of the war in Sri Lanka and offers its deepest condolences to all those affected by the conflict;

(2) honours the memory of those who died and reaffirms its solidarity with the people of all communities in Sri Lanka in their search for reconciliation, reconstruction, reparation, and reform;

(3) commends the United Nations Human Rights Council for prioritizing the collection and preservation of evidence related to human rights violations, a process that must not be interfered with by the Government of Sri Lanka;

(4) recognizes the bravery and commitment of advocates for justice across all communities in Sri Lanka, including the Tamil families of the disappeared, whose protests and demands for answers have at times been met with threats, intimidation, and harassment by government security forces;

(5) urges the international community to advocate for and protect the political rights and representation of the historically oppressed northeastern region of Sri Lanka and work towards a permanent political solution to address the underlying issues that led to ethnic conflict;

(6) recommends the United States explore investigations and prosecutions pursuant to the recommendations of the United Nations High Commissioner for Human Rights; and

(7) urges the United States to work with the United Nations General Assembly, the United Nations Security Council, and the United Nations Human Rights Council to establish a credible and effective international mechanism for accountability for the grave crimes committed during the war in Sri Lanka.

The Comments presented below are in respect of Resolutions (2); (5); (6); and (7). Resolution (2) is to “honour the memory of those who died…”, Resolution (5) calls upon the international community to “work towards a permanent political solution to address the underlying issues that led to the conflict” and Resolutions (6) and (7) relate to issues of accountability.

RESOLUTION (2) – “memory of those who died”.

COMMENT:

While it is customary to honour the memory of those who died during to the armed conflict, it must be acknowledged that those who died are from all ethnic and religious communities. Therefore, it is natural that the practices adopted by different communities would be in keeping with their respective cultural traits. However, an issue that needs to be acknowledged is that it would be unlawful to publicly display symbols of the LTTE during memorialization procedures in member states that have proscribed the LTTE as a terrorist entity. To permit the display of such symbols is to violate their own provisions under which the LTTE was proscribed.

RESOLUTION (5)

“work towards a permanent political solution…”.

COMMENT:

The permanent political solution introduced by Sri Lanka at the behest of India following the Indo-Lanka Accord in 1987 was the 13th Amendment. The fact that the conflict persisted for the next 22 years until May 2009, despite serious attempts to negotiate a permanent political solution within the framework of the 13th Amendment, demonstrates with absolute clarity that the political rights granted under the 13th Amendment fall far short of the expectations of the Tamil people. On the other hand, leaving aside the fact the people of Sri Lanka also opposed the 13th Amendment, fulfilling the aspirations of the Tamil people to the extent they aspire to, is NOT in India’s own national interests because India cannot accept a situation where the Tamil community in Sri Lanka enjoys political rights in excess of what is granted to the Tamil majority in Tamil Nadu. This being the case, India saw to it that a limit to political power to the Tamil people in Sri Lanka was recognized and accepted by the international community during the recently adopted UNHRC Resolution A/HRC/46/L.1/Rev.1 which stated: “Calls upon the government of Sri Lanka to fulfill its commitments on the devolution of political authority…and to ensure that all provincial councils, including northern and eastern provincial councils are able to operate effectively, in accordance with the thirteenth amendment to the Constitution of Sri Lanka”.

India’s External Affairs Minister Dr. S. Jaishankar is reported to have stated during his last visit to Sri Lanka that ‘Delhi insists on the importance of the 13th Amendment in fulfilling the expectations of the Tamil people for equality, justice, peace and dignity’ (The Island, January 7, 2021). Therefore, it could be concluded that as far as India is concerned the 13th Amendment is expected to be the upper limit beyond which a permanent political solution would be unacceptable to India. The rationale for this limit is because the “Stability, security, and prosperity of Sri Lanka is (not only) in India’s interest, but also in the interest of the entire Indian Ocean”, as stated by India’s Prime Minister Narendra Modi during Sri Lanka’s Prime Minister Mahinda Rajapaksa’s visit to India.

The observations of a former President of India, Pranab Mukherjee in his autobiography is of extreme importance. He opined that bilateral ties between India and Sri Lanka had been “greatly influenced by Tamil politics in India, particularly with the emergence of a strong Dravidian party (DMK) in Tamil Nadu since the mid-60s”. Continuing, the report also states “on the concept of Tamil Eelam the former President observed that it was raised by ‘the Tamil population residing on both sides of the Palk Strait…” (Daily News, January 11, 2021).

The perspective presented by the Tamil diaspora is that a political solution based on a federal arrangement with the right of self-determination, is realistically achievable. The hard reality is that such an arrangement is unacceptable not only to the people of Sri Lanka but also to Delhi because any political arrangement beyond the 13th Amendment would impact on the security and territorial integrity of both States. Now that the DMK who supported the aspirations of the Tamils in Sri Lanka is back with a majority in the State Assembly of Tamil Nadu, not only Sri Lanka but also Delhi is deeply concerned that the initiative taken by Res. 413 for a political solution to meet Tamil expectations in Sri Lanka would impact seriously on the security and stability in respect of India’s territorial integrity and that of Sri Lanka as well. Hence, the insistence by Delhi of the importance of the 13th Amendment. Furthermore, any arrangement beyond the 13th Amendment that would have serious implications on the territorial integrity of India would impact on the ability of India to be play an effective role as a member of the Quad that is intended to partner with the US in the security of the Indo-Pacific.

RESOLUTION (6) – “US to explore investigations and prosecutions pursuant to the recommendations of the UN

High Commissioner for Human Rights”.

COMMENT:

Since the Res. 413 is influenced by the recommendations of the High Commissioner for Human Rights, it is pertinent that the Resolution pays particular attention to recommendations in Paragraphs 182 and 183 in the Report of the Office of the High Commissioner for Human Rights on Sri Lanka (OISL).

Paragraph 182 states: “Article 3 common to the four Geneva Conventions relating to conflict not of an international character is applicable to the situation in Sri Lanka” AND Paragraph 183 states: “In addition, the Government and armed groups that are parties to the conflict are bound alike by relevant rules of customary international law applicable to non-international armed conflict”.

Since Common Article 3 of the Geneva Conventions have been expanded and incorporated as Additional Protocol II of 1977 applicable to Non-International Armed Conflict and ratified by 168 Member States as of 2020, the conduct of the conflict in Sri Lanka should be evaluated in the context of an Armed Conflict under provisions of Additional Protocol II of 1977. Thus Additional Protocol II should be included within the body of Customary International Law, and any investigations and prosecutions the US intends to explore, should follow the guidelines in Additional Protocol II.

RESOLUTION (7) – The US to work with the UNGA, Security Council and UNHRC to establish an international mechanism to address accountability.

COMMENT:

For the US to work with three organs of the UN namely the General Assembly, the Security Council and the UNHRC is a direct violation of Article 2 (7) of the Charter of the United Nations .

Article 2 (7) states: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present Charter…”

The need for Resolution (7) is perhaps because of the prejudice against the domestic mechanism established by the Government of Sri Lanka. In order to convey its credibility key provisions of the mandate of the Presidential Commission of Inquiry as per Gazette No. 2211/55 of 21, January, 2021 is presented below.

“Whereas the decision taken by the Government of Sri Lanka to withdraw from co-sponsorship of 40/1 Resolution on March 2019 on Reconciliation, Accountability and Promotion of Human Rights in Sri Lanka and its preceding resolution 30/1 of October 2015 and 34/1 of March 2017 has been announced at the 43rd session of the United Nations Human Rights Council on 26th and 27th of February 2020″…

“appoint you Hon A. H. M. D. Nawaz Esq, Judge of the Supreme Court; Chandra Fernando Esquire, Retired Inspector-General of Police; Nimal Abeysiri, Retired District Secretary, to be my Commissioners to investigate and inquire and take necessary action to report on the following matters, namely –

(a) Find out whether preceding Commissions of Inquiry and Commissions which had been appointed to investigate into human rights violations have revealed any human rights violations, serious violations of the international humanitarian law and other such serious offences;

(b) Identify what are the findings of the said Commissions and Committees related to the serious violations of human rights, serious violations of international humanitarian law and other such offences and whether recommendations have been made on how to deal with the said facts;

(c) Manner in which those recommendations have been implemented so far in terms of the existing laws and what steps need to be taken to implement those recommendations further in line with the present Government policy;

(d) Overseen of whether action is being taken according to (b) and (c) above”.

Further, I do hereby authorize and empower you, the said Commissioner, to cause or cause the conduct of necessary investigations and inquiries and require you to transmit to me Interim Reports where necessary and the final Report within six months of the date hereof…”

CONCLUSION

The key intentions of US House Res. 413 are to work towards a permanent political solution to address underlying issues that led to the conflict (Resolution 5) and to address issues relating to accountability (Resolutions (6) and (7).

In the background of India insisting on the importance of the 13th Amendment as the means to address concerns of the Tamil people, the attempt by the US to explore fresh political arrangements is to engage in efforts that run counter to the geopolitical and strategic interests of one of the key partners of the security alliance of Quad. Furthermore, this attempt by the US ignores the rationale for India to initiate the Indo-Lanka Accord judging from the statement made by Prime Minister Rajiv Gandhi. He stated that the Accord had “Prevented the island nation from coming into the orbit of some superpower trying to tighten their hold in Sri Lanka on the pretext of helping to find a solution to the four year old ethnic conflict” (Kodikara, p.147, Indo-Sri Lanka Agreement). As far as India is concerned US Res.413 is nothing but an attempt to get a “hold in Sri Lanka” as warned by a former Prime Minister, even though India is with the Quad security alliance.

As for addressing issues relating to Accountability, any intended action should be cognizant of the fact that from February 2002 until May 2009 the conflict was a non-international armed conflict and therefore applicable provisions of Additional Protocol II that are based on Common Article 3 of the Geneva Conventions should govern any investigations and prosecutions; a fact endorsed by the Office of the High Commissioner for Human Rights (OISL).

The attempt by the US to work with UN and its Agencies to establish international mechanism to address accountability is not only a violation of Article 2 (7) of the UN Charter because the UN and its Agencies are not authorized to intervene “in matters which are essentially within the domestic jurisdiction of any member state….”, but also to question the credibility of the domestic mechanism established by Sri Lanka.

In summary, House Res. 413 appears to be more of an attempt to please its promoters, and in the process the drafters of the Resolution have failed to recognize broader geopolitical ramifications of their proposals and have even gone to the extent of ignoring the fundamentals such as violating the provisions of the UN Charter itself.



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President picks up the gauntlet

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by Jehan Perera

By proroguing parliament President Ranil Wickremesinghe has given the parliamentarians, and the country at large, a reminder of the power of the presidency. There was no evident reason for the president to suddenly decide to prorogue parliament. More than 40 parliamentary committees, including important ones concerning public finances, enterprises and accounts have ceased to function. The president’s office has said that when parliament reconvenes on February 8, after the celebration of the country’s 75th Independence Day on February 4, the president will announce new policies and laws, which will be implemented until the centenary celebrations of Sri Lanka’s independence in 2048. Prime Minister Lee Kwan Yew transformed Singapore from a relatively underdeveloped and impoverished agrarian society into one of the world’s most developed countries in the same 25 years that the president has set for Sri Lanka.

President Wickremesinghe has been getting increasingly assertive regarding his position on issues. Recently he attended a large gathering of Muslim clerics, where he was firm in saying that society needs to modernise, and so do religious practices. He has also held fast to his positions on reviving the economy and resolving the economy. There have been widespread protests against the tax hikes being implemented which have eroded the purchasing power of taxpayers. First they had to absorb the impact of inflation that rose to a rate of 80 percent at the time the country reneged on its foreign debt repayments and declared bankruptcy. Now they find their much diminished real incomes being further reduced by a tax rate that reaches 36 percent.

But the government is not relenting. President Wickremesinghe, who holds the finance minister’s portfolio, is going against popular sentiment in being unyielding on the matter of taxes. He appears determined to force the country away from decades of government policies that took the easy route of offering subsidies rather than imposing taxes to use for government expenses and development purposes. In Sri Lanka, the government’s tax revenue is less than 8 percent, whereas in comparable countries the tax revenue is around 20 to 25 percent. The long term cost of living off foreign borrowings rather than generating resources domestically through taxation has been evident for a long while in the slow growth of the economy even prior to the economic collapse.

13TH AMENDMENT

Another area in which the president appears to have taken the decision to stand firm is the issue of finding a solution to the ethnic conflict. This problem has proven to be unresolvable by governments and political leaders who give deference to ethnic nationalism. Being an ethnic nationalist in the context of Sri Lanka’s ethnic and religious divisions has been a sure way of gaining votes and securing election victories. No leader in Sri Lanka has to date been able to implement the compromise solutions that they periodically arrived at, the last being the 13th Amendment. Earlier ones included the Bandaranaike-Chelvanayakam Pact of 1957 and the Dudley Senanayake-Chelvanayakam Pact of 1965 which could not even be started to be implemented.

At the All Party meeting that he summoned to discuss the ethnic conflict and national reconciliation, President Wickremesinghe took the bull by the horns. He exchanged words with ethnic nationalist parliamentarians who sought to challenge his legitimacy to be making changes. He said, “It is my responsibility as the Executive to carry out the current law. For approximately 37 years, the 13th Amendment has been a part of the constitution. I must implement or someone has to abolish it by way of a 22nd amendment to the constitution by moving a private member’s bill. If the bill was voted against by the majority in the House, then the 13th amendment would have to be implemented. We can’t remain in a middle position saying that either we don’t implement the 13th amendment or abolish it.”

The 13th Amendment has not been fully implemented since it was passed by parliament with a 2/3 majority in 1987. Successive governments, including ones the president has been a member of variously as a minister or prime minister, have failed to implement it in a significant manner, especially as regards the devolution of police and land powers. When parliament reconvenes on February 8 after prorogation, President Wickremesinghe will be provided the opportunity to address both the parliament and the country on the way forward. Having demonstrated the power of the presidency to prorogue parliament at his discretion, he will be able to set forth his vision of the solution to the ethnic conflict and the roadmap that needs to be followed to get to national reconciliation.

IRONIC PERSECUTION

It is significant that on February 20, the president will also acquire the power to dissolve parliament at his discretion. By proroguing parliament, the president has sent a message to both parliamentarians and the larger society that he will soon have the power to dissolve parliament with the same suddenness that he prorogued parliament. On February 20, the parliament would have been in existence for two and a half years. The 21st Amendment empowers the president to dissolve parliament after two and a half years. Most of the parliamentarians belonging to the ruling party are no longer in a position to go to their electorates let alone canvass for votes among the people. Under these fraught circumstances, they would not wish to challenge the president or his commitment to implementing the 13th Amendment in full.

On the other hand, the taming of parliament by the president does not guarantee the success of an accommodation on the ethnic conflict and a sustainable political solution. The ethnic conflict evokes the primordial sentiments of the different ethnic and religious communities. Political parties and politicians are often portrayed as the villains who led the country to decades of ethnic conflict and to war. However, the conflict in the country predates the political parties. In 1928, in response to demands from community leaders in Ceylon as it was then known, the British colonial rulers sent a commission to the country to ascertain whether it was ready for self-rule. The assessment was negative—the Donoughmore commission wrote that the representatives of the biggest community held to the position that their interest was the national interest. All the representatives of the smaller communities who were divided one against the other were united against the biggest.

An important role therefore devolves upon civil society not to fall prey to the divisions that come down the years. There is a need for enlightened leaders of civil society to work with commitment to explain to the people the need for a political solution and inter-ethnic power sharing that the 13th Amendment makes possible. There were signs of this during the height of the Aragalaya when the youth leading the protests called publicly for equal citizenship and non-discrimination on the basis of ethnicity, religion and caste. They pledged not to be divided by ethnic nationalist politicians for their narrow electoral purposes. It is ironic that the government led by President Wickremesinghe has made these enlightened youth leaders the target of a campaign of persecution instead of making them a part of the solution by constructively engaging with them and issuing a general amnesty.

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Privatisation of education and demonising of students of Lanka

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Student union leader Wasantha Mudalige with prison guards

by Anushka Kahandagamage

Sri Lanka is trapped in debt due to decades of corruption and short-sighted economic policies. To come out of the trap or, I would say, escape the moment, the government is seeking loans from the IMF, or anybody else who is willing to lend, no matter the conditions. To this end, under the IMF’s tutelage, the government is seeking to privatise education, aware that it will face the wrath of the people. In this setting, to suppress the protests, the government has adopted a strategy of demonising students, in the public education system.

School children as “drug addicts”

A media empire, which has strong ties with the current Lankan regime, recently sent shockwaves through schools, and their communities, by reporting cases of school children hooked on harmful narcotics. Following these reports, there were many write ups, social media content and stories published on the menace of drug addiction, among Sri Lankan students. That media network even released a video, interviewing two schoolgirls who claimed to be addicted to harmful substances. In the midst of the media frenzy, the police carried out surprise checks in schools, searching students’ bags. The state humiliated and terrified school children by using the police to conduct surprise checks in the schools and peek into the students’ backpacks, instead of investigating the avenues through which dangerous drugs enter the country. After a week, the Minister of Education claimed he was unaware that the police were conducting surprise checks in schools, with sniffer dogs, adding that there was no need to deploy the police force for this purpose. If the Minister was not aware that the police raided schools, it is not surprising that the state would also turn a blind eye to how narcotics enter the country. While there is a risk of students addicting to dangerous drugs, the state cannot place all the blame on students. Instead of taking responsibility for the state of affairs, and acting to keep harmful substances off the island, the state places the burden on schoolchildren and simply refers to them as “drug addicts.”

Bhikku students as “alcoholics”

The next example is from the Buddhist and Pali University, in Homagama. Similar to the first story, the same media network reported some irregularities occurring in the University. Those irregularities included the student monks forcing incoming students, also monks, to consume weed, liquor and party. Following this news report, some investigations were conducted in the University and empty liquor bottles were found in an abandoned well. Then we witnessed several press conferences where University authorities questioned the student monk leaders. While one cannot and should not disregard students’ violence upon another student, it is interesting to note the way the government is taking up the particular incident, at this particular point of time. There was a massive social media campaign to show that the student-monks are immoral and unworthy of education. It cannot be a coincidence that the student monks, at this University, were actively involved in the Aragalaya. In other words, the government was trying to defame the University, and the students, by labelling them as oppressors and alcoholics.

The Rajapaksa regime continuously used Buddhist monks, in their political operations, especially to incite conflict and win elections. The state has frequently deployed Buddhist monks to further its nationalist agendas. When the state used monks for their agendas, including to instigate violence, the monks were not framed as ‘immoral.’ The higher Buddhist authorities did not take action against groups, like Bodu Bala Sena, or Ravana Balaya, or their violent activities. It is ironic that the Government seems to be concerned about the ‘morality’ or ‘discipline’ of Bhikkus at this moment when many student Bhikkus have joined hands with the people to protest against the state.

University students as “terrorists”

The last example is the most pressing at this moment. On 18th of August, 2022, the police arrested Wasantha Mudalige, the Convenor of the Inter-University Students Federation, under the Prevention of Terrorism Act (PTA). Along with him, the authorities detained Hashan Jeewantha and the convener of the Inter University Bhikku Federation (IUBF), Galwewa Siridhamma Thera. The state labelled the politically active university students as “terrorists”. Again, this cannot have happened by chance; we all know the Aragalaya against the Rajapaksa dictatorship was heavily influenced by the Inter-University Students Federation and the Inter University Bhikku Federation. The student unions were the muscle of the people’s protests against the oppressive and corrupt regime. The Ranil-Rajapaksa regime labelled the student leaders’ terrorists and started arresting them.

The state’s stamping of University students as terrorists is a folly. If the state labels its own youth as “terrorists,” it means that the state has failed miserably because it is its own actions that have pushed them toward what is labelled as “terrorism.” The state should take a step back and reconsider its decisions.

Privatization of Education

The government and the government-validating media demonize students, labelling them as drug addicts, alcoholics and terrorists. The government undermines and defames the country’s student body. By doing so, the government is strategically isolating the students from the larger society and eroding public faith in them. Ironically, drug addicts, alcoholics, and terrorists are all confined to the public school and state university system, not private educational institutions. The media propagates the idea that students enrolled in the state education system are ‘immoral’ and ‘disobedient’. Meanwhile, Ranil Wickremesinghe, the puppet President of the Rajapaksa allies, proposes a new economic system which he thinks will counter the current balance of payment crisis. The proposal includes establishing an educational hub in Sri Lanka, which promises to privatise higher education in the long-term.

The state agenda of privatizing education is not a recent one, but it has been reenergized by the Ranil-Rajapaksa government in the context of crisis. Well before demonising the students, in the public education system, in June 2022 the government, national education commission, came up with an education policy framework.

Biased towards Rajapaksa ideologies, the national education commission that developed the policy, proposed to expand the privatization of higher education. In their report, the committee presents a table demonstrating how Sri Lanka allocates less money on higher education compared with the other middle-income countries. The next section outlines the way Sri Lanka relies more on government grants for higher education than other middle-income countries, which is confusing and contradictory, perhaps reflecting the grossly inadequate overall investment in higher education in the country. Then the report goes on to analyse how the poor school education system creates an unskillful student who is unable to think critically. It finally recommends promoting private participation in higher education, not only through funding but also by matching the curricula to fit the market and increase the “employability” of students. While on the one hand government pushes for privatising higher education, on the other, it demonizes the students in the public educational system. The State has seized the problem by its tail. The government is unable to perceive its own flaws in short-sighted policymaking, law enforcement, and corruption, and instead accuses and defames students, to distract them from its concerted effort to privatise education.

Kuppi is a politics and pedagogy happening on the margins of the lecture hall that parodies, subverts, and simultaneously reaffirms social hierarchies.

(Anushka Kahandagamage is reading for her PhD in the School of Social Sciences, University of Otago)

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Janaka…Keeping the Elvis scene alive

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Janaka Palapathwala: Recreating the Presley era…through song.......

For the past three years, local performers have certainly felt the heat, where work is concerned, beginning with the Easter Sunday tragedy, followed by Covid-19 restrictions, and then the political situation

Right now, there seems to be a glimmer of light, at the end of the tunnel, and musicians are hoping that, finally, the scene would brighten up for the entertainment industry.

Janaka Palapathwala, whose singing style, and repertoire, is reminiscent of the late Elvis Presley, says he was so sad and disappointed that he could not reach out to his fans, around the world, because of the situation that cropped up in the country.

However, he did the next best thing possible – a Virtual Concert, early last year, and had this to say about it:

“The concert was witnessed by so many people around the world, in 12 different countries, and I take this opportunity to thank all those who showed a great interest, around the world, to make the show a mighty success. Lasantha Fernando of Minneapolis, Minnesota, in the USA, went out of the way to pull a huge crowd, in the States, to make the concert a massive success. Lasantha, by the way, has done many shows, in Minnesota, including a concert of mine, four years ago.”

Toward the end of 2022, the showbiz scene started to look good, with musicians having work coming their way – shows, sing-alongs, events, overseas tours, recordings, etc.

Janaka added that the Gold FM ’70s show was back after six years, and that the music industry is grateful to Gold FM for supporting musicians with such an awesome event.

“Also, the unity and the togetherness of the Sri Lankan western musicians, scattered around the globe, were brought together, once again, by the guidance of Melantha Perera.

“The song ‘Baby Jesus Is Fast Asleep’, written, composed and directed by Melantha, was a true Christmas gift to people around the world.”

Referring to his career, Janaka said that these days he is involved in a mega video production project.

“I intend to do a road show for a total Dinner Dance Promotion package, titled ‘Janaka with Melantha and the Sign’.

“Phase One of the project is already completed, and we are now heading for the second phase, where we plan to get Sohan Weerasinghe, Clifford Richards and Stephanie Siriwardane involved in the cast”.

Janaka also spoke excitedly about his forthcoming trip to the USA.

“I’m so excited to tour the USA, after three years. The ‘Spring Tour USA 2023′ is going to be different.

“I’ve done formal concerts, in the States, but this Spring Tour will be a series of Dinner Dances where I would be seen in action, along with the top ranked DJ of Washington D.C., Shawn Groove, and some of the best domestic bands in the States, and I can assure all my friends, and fans, in the US, that this new venture is going to be doubly exciting.”

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