NMSJ calls for the abolition of Executive Presidency By Umesh Moramudali-2013-05-28 Head of the National Movement for Social Justice (NMSJ), Ven. Maduluwawe Sobitha Thera, called for the abolition of the Executive Presidency during the rule of the present government. Participating in a discussion organized by Transparency International Sri Lanka (TISL), held at the auditorium of the Organization of Professional Associations (OPA), yesterday, he pointed out that the main constituent party of the present government, the Sri Lanka Freedom Party (SLFP), wanted the Executive Presidency abolished at the time it was introduced. "SLFP Leader, Sirimavo Bandaranaike, protested against the Executive Presidency when it was introduced in 1978, and pledged to abolish it once they come into power. The incumbent President, Mahinda Rajapaksa, was also a major activist at the time that campaign was being conducted," he added. Speaking further, Ven. Sobitha Thera said all the left parties in the government have expressed their support to abolish the Executive Presidency and the government needs to take steps to do so. He added, the NMSJ has drafted the 19th Amendment to the Constitution and they want to create public awareness on the proposed amendment. According to Ven. Sobitha Thera, the constitutional amendment and the abolishment of the Executive Presidency is the need of the hour as the Constitution, in its present form, vests too much power in the President. "Due to the lacunas in the Constitution, there are clashes between the Executive, Legislative and the Judiciary," he said. Commenting on statements made by certain politicians who say that the 'people's supremacy is represented in Parliament' he questioned, "The President can dissolve Parliament at any time he desires. Therefore how can one say Parliament is supreme?" He went on to say that the Judiciary is also controlled by the President as the power of appointing judges to the Supreme Court and the Court of Appeal lies with him. "Even the Attorney General's Department is under the President and the Attorney General has to act according to the dictates of the President," he opined. However, joining the discussion, the General Secretary of the Jathika Hela Urumaya (JHU), Udaya Gammanpila, said there is nothing wrong with the Executive Presidency, but the fault lies with the 1978 Constitution, and added that therefore the Constitution should be amended. Elections to the North to be postponed? TUESDAY, 28 MAY 2013  Despite it had been planned earlier to hold the elections for the Northern Provincial Council in September, a dialogue is going around the powerful in the government party that it should be postponed until at least October. According to sources a crisis has developed in the government regarding amendments to  powers for provincial councils. However, the powerful in the government have taken the stand that the crisis should be resolved and an election held as early as possible. It is reported that, except for a few parties in the UPFA, the majority are not in favour of amendments to the PC powers. It is stated that most senior members in the SLFP are not in favour of amendments.

C’bo Uni. teachers to strike if new VC doesn’t quit

by Dasun Edirisinghe-May 27, 2013

The Colombo University Teachers’ Association (CUTA) yesterday threatened to launch an all-out strike if the newly appointed Vice Chancellor does not step down from the post within two weeks, or if President Mahinda Rajapaksa does not justify his appointment.

CUTA committee member and President of the Federation of University Teachers’ Associations (FUTA) Dr. Nirmal Ranjith Dewasiri told The Island that the teachers were opposed to the new VC, Dr. Wijaya Kumara Hirimburegama, claiming that the appointment was politically motivated and unethical as his wife was serving as the Chairman of the University Grants Commission (UGC).

"We decided, at yesterday’s meeting, to boycott all meetings and communication with the new VC," Dr. Dewasiri said adding that they would not accept memos or letters from the newly appointed VC.

He said that three academics, including Dean of the Kothelawala Defence Univeristy’s Law Faculty Dr. Prathiba Mahanamahewa, former Arts Faculty Dean Prof. Lakshman Dissanayake and Science Faculty’s Dr. Wijaya Kumara Hirimburegama applied for the post, but Prof. Lakshman Dissanayake obtained the majority of votes at the Council meeting.

The three names were sent to the President through the UGC, Dr. Dewasiri said.

"Our association believes that Prof. Lakshman Dissanayake is the most qualified person to handle the post," Dr. Dewasiri said.

The senior academic said that the CUTA will inform President Rajapaksa of their decision and they would go for an all out strike if President does not provide a solution.

The Colombo University announced yesterday that Dr. Wijaya Kumara Hirimburegama was appointed as the new Vice Chancellor of the Colombo University by President Mahinda Rajapaksa with immediate effect.

Mervyn to get powers to discipline public servants? TUESDAY, 28 MAY 2013 A new Parliamentary Act will be soon introduced giving unrestricted power to the Public Relations and Public Affairs Ministry to entertain and investigate complaints against public officials and recommend redress or take legal action against those who ignore ministry directions, a senior official said. Ministry Secretary C. Herath said yesterday a memo would be submitted for cabinet approval on June 6 by subject Minister Mervyn Silva calling for legal provisions for a ‘Public Request Act’ and to set up a special unit under the Ministry with legal authority to investigate and make rulings and recommendations on officials attached to ministries, departments, semi-government institutions and statutory boards with complaints being attended to within a specified time. “We will give a maximum period of three months to public servants to take action on the recommendations or rulings. Under the existing administrative and legal provisions it is extremely difficult for a person to get redress for a discrimination or unjust act committed against him or her by a public official or an official of a semi government institution. The new unit will fill this gap,” Mr. Herath said. He said this ‘Relief Provisions Mechanism’ is being set up on the directive of President Mahinda Rajapaksa.

702 More Jaffna Tamils Petition Appeal Court To Prevent Damage To Their Tesawalamai Rights By Land Grab Of Rajapaksa regime

Through CA (Writ) 135/2013, 702 more Jaffna Tamils have challenged the purported acquisition on similar ground to the 1474 petitioners in CA (Writ) 125/2013, and further complain that the so-called acquisitions are being done in a manner that prevents them from objecting to acquisition on important grounds, such as denial of their rights under Tesawalamai, the personal law of Tamils of the Jaffna Peninsula.

We publish below the petition in full;

In  The  Court  Of  Appeal  Of  The  Democratic Socialist  Republic Of Sri Lanka

In the matter of an application under Article 140 of the Constitution for Mandates in the nature of Writs of Certiorari and Prohibition

CA (Writ) Application No:  135/2013

1. Tharmalingam Navaratnam of Hospital Road, Achchuvely South, Achchuvely
2. Ilayathamby Ponnampalam of Hospital Road, Achchuvely South, Achchuvely
702 More Jaffna Tamils Petition Appeal Court to Prevent Damage to Their Tesawalamai Rights by Land Grab of... by nelvely

That problematic 13 A

By Dilrukshi Handunnetti-2013-05-26 

When the Sixth Amendment to the 1978 Constitution became law on 8 August 1983, the practical result was not a nation committed to the concept of territorial sovereignty, but the Tamil United Liberation Front (TULF) members walking out of Parliament in absolute political rage. The Sri Lankan Parliament and polity had been deeply divided ever since, and the country was subsequently consumed by ethnic violence.

If the reaction to the Sixth Amendment reflected the deep ethnic wounds of Sri Lanka that further eroded the trust between the two communities, the dragging of feet by consecutive governments in implementing the 13th Amendment prove the absence of political will among the political leadership to seek a lasting solution through dialogue.

The current political quagmire is such that on the one hand, the Sri Lankan Government appears keen to hold fresh elections in the North, following the demerger of the Northern and Eastern Provinces. On the other, it seeks to conduct polls, subsequent to a quick abolition of the 13th Amendment to the Constitution under which, the provincial councils were established. While all signals show the government would rather have the amendment done away with, there is Cabinet Spokesperson, Minister Anura Priyadarshana Yapa claiming, the amendment would stay, and only the Parliamentary Select Committee (PSC) could determine otherwise. In truth, the PSC is a damp squib and a nonstarter. Referring the matter there would hence be a process- nonstarter.

Seeking abolition

That Problematic 13 A by nelvely

ADDL District Judge Casts Aside Diplomatic Immunity In Sri Lanka

Dr. Kumar Rupesinghe-May 28, 2013 

In recent times, Sri Lanka has come under increased criticism internationally for its failure under the Rajapaksa regime to uphold well established basic international norms such as the Rules of Natural Justice and respect for the necessary independence, jurisdiction and role of the judiciary.

The latest controversial order comes from a District Court, where an Additional District Judge under the regime has cast aside the diplomatic immunity that under international law is available to foreign diplomats in a country of good standing among the community of nations.

Here is the text of the controversial order.

IN THE DISTRICT COURT OF COLOMBO-COURT NO. 08
In the presence of Mrs. Amali Ranaweera Addl.
District Judge
Case No. 03438/2011 D.M.R.
Date 30-04-2013
Recorded by M.M.C. Renu Stenographer

ORDER

The Plaintiff has prayed from his Plaint as the first cause of action t he recovery of a sum of Rs.57,169,452 jointly and severally together with 12% annual interest until payment in full from 1st to 10th Defendant representing the Norwegian Foreign Ministry, as the second cause of action recovery of a sum of Rs.28,259,837.08 joint and severally together with legal interest of 12% until payment in full from 1st to 10th Defendants representing the Norwegian Foreign Ministry as the third cause of action the recovery of a sum of Rs.2,542,198.15 jointly and severally together with legal interest of 12% until payment in full from 1st to 10th Defendants representing the Norwegian Foreign Ministry, costs and other and further reliefs the Court shall seem meet. The Plaintiff has prayed for the above reliefs on three causes of action.

Accordingly the Agreement marked P2 attached to the Plaint which is the first cause of action had been in operation from 01-05-2009 to 14-11-2009 and as there is a right to recover the relevant funds through the officers of the Norwegian Foreign Ministry at least till 14-11-2009, it is required to recover a sum of Rs.57,169,452/together with 12% annual interest till payment in full from 1st to 10th Defendants, a sum of Rs.28,259,837/08 together with interest 12% annual legal interest from 1st to 10th Defendants representing the Norwegian Foreign Ministry being the amounts payable by the Plaintiff to the Staff and authorities employed by the Plaintiff due to the sudden malicious and mala fide termination of the Agreement as their EPF and ETF bonus and other taxes and a sum of Rs.98,528,065.69 as the Plaintiff had to obtain a Bank draft of Rs.2,542,198.15 and 12% annual interest had to be paid on it and the Agreement marked P2 had to be maintained till its last date and also due to the delay in payment and some payments not settling at all by the Norwegian Foreign Ministry officers.

Dr. Kumar Rupesinghe

ADDL District Judge Casts Aside Diplomatic Immunity in Sri Lanka by nelvely

Uprooted Tamils ordered to leave their lands in Mannaar

[TamilNet, Sunday, 26 May 2013, 23:02 GMT]
Mannaar Divisional Secretary D.Dayananda has ordered all uprooted Tamil residents residing in the public lands at Ezhil Nakar to dismantle their temporary sheds and boundary fences and vacate from the land within one week's time. The eviction order has been issued by the Divisional Secretary to settle down about 600 Sinhalese from the South, civil sources said. 

Mannaar DS has threatened the Tamil occupants that he would file action in the Sri Lankan law courts if they failed to carry out his instruction.

The latest move by the divisional secretary comes while Sri Lanka's Government Agent to Mannaar District has been scheming a Sinhala colony at Saanthipuram and South bar in Mannar district, the civil sources further said.

SL military appropriates lands of Tamils in Naayaa'ru, Mullaiththeevu

[TamilNet, Monday, 27 May 2013, 22:13 GMT]
Lands that had been allocated to Eezham Tamil farmers for cashew cultivation in the village of Naayaa'ru in Mullaiththeevu have been appropriated by the Divisional Secretariat and handed over to the occupying Sri Lanka Army (SLA) without the consent of legal owners, civil sources in the district said. Naayaa'ru village is located on the borders of Mullaiththeevu district and Trincomalee district, a demographically strategic location for the contiguity of Northern and Eastern Provinces. 

Eezham Tamils at Naayaa'ru village were targeted during the SL State-sponsored anti-Tamil pogroms in 1983 and the people of the entire village fled for safety elsewhere. 

After 27 years, the uprooted Tamil families returned to their village in 2010.

The affected Tamil farmers made representation to the Divisional Secretary concerned how he could hand over these lands without their consent. 

However, the reply of the DS was that he had acted on the orders of the Colombo government, the sources further said.

Should not meddle the 13th amendment opinion of former military Commander Sarath Fonseka

Tuesday , 28 May 2013

Government should not meddle the 13th amendment to the constitution, is the warning given by Democratic Party leader, former military Commander Sarath Fonseka. He alleged President is instigating the ministers against "13"

 

He said, his party is attempting to contest the Northern Province council election, but still  final decision is not taken.

 

Chauvinistic associate parties from the government and Sinhala movements in supportive of government are insisting the 13th amendment to the constitution to get abolished which has generated into a massive controversy in the country.

 

Concerning this, former Commander expressing his views to "Uthayan" made the above statement.

 

Government should not meddle with the  "13" issue,  due to the present situation prevailing in the country, was the opinion expressed by former Commander, and "Uthayan" queried  “what does it mean present situation” “and whether is it  meant in future it could be abolished”. 

 

Responding in an evaded attitude former Commander said, “There are many problems now, but there is doubt, whether everything could be settled in future”

 

Question was raised concerning the views revealed by some ministers against "13" in responding he said, without instruction from President, ministers will not carry out anything, it is obvious who is behind this, said former Commander Sarath Fonseka

CJ Impeachment Appeal To SC – TNA’s Sampanthan Also Complains Of AG’s Irregular actions

May 28, 2013 |

Tamil National Alliance (TNA) MP, R. Sampanthan has also now file a Motion to the Supreme Court, in the controversial appeal to the Supreme Court by the Attorney General (Case No. – SC (Appeal) 67/2013) against the ruling by the Appeal Court that the so-called findings of a ‘Parliamentary Select Committee’ purportedly to inquire into so-called ‘charges’ against Chief Justice Dr. Shirani Bandaranayake.

Chief Justice Bandaranayake

We have in a previous report, explained the background and reported that Janatha Vimukthi Peramuna (JVP) MP, Vijitha Herath also protested to the Supreme Court through a Motion.

Both Sampanthan and Herath, who were parties to the original case in the Appeal Court, complain of steps taken behind their back to covertly obtain ‘special leave to appeal’ from the Supreme Court. The composition of the benches of the Supreme Court that preside over specific cases, is now decided on by de facto Chief Justice, Mohan Pieris after Bandaranayake was excluded from exercising her functions as de jure (legal) Chief Justice.

The Colombo Telegraph has been able to obtain the text of the Motion filed on behalf of Sampanthan by his lawyers, which is as follows:

We file herewith our appointment from the 11th Respondent-Respondent  abovenamed and MOVE that Your Lordships’ Court be pleased to accept and file same of record;

WHEREAS the 11th Respondent – Respondent received a notice dated 13th May 2013 informing him that Your Lordships’ Court has granted special leave to appeal in this matter and that the appeal will be heard on 29th May 2013;

AND WHEREAS this is the first time a formal notice from the Registrar of Your Lordships’ Court has been received by the 11th Respondent – Respondent, apart from a photocopy of a Motion seeking to amend the caption that was received previously;

AND WHEREAS Rule 8 of the Supreme Court Rules 1990 stipulates as follows:

“(1) Upon an application for special leave to appeal being lodged in the Registry of the Supreme Court, the Registrar shall forthwith give notice, by registered post, of such application to each of the respondents, in the manner hereinafter set out. There shall be attached to the notice a copy of the petition, a copy of the judgment against which the application for special leave to appeal is preferred, and copies of affidavits and annexures filed therewith.

(2) Such notice shall be in the prescribed form, and shall specify –

(a) that the respondent, if he intends to oppose the grant of special leave to appeal, shall lodge, within fourteen days of the receipt of such notice, a Caveat indicating such intention; and

(b) the date of hearing of the application (being a date not less than eight weeks after the lodging of the application)

Such notice shall be despatched within five working days after the application has been lodged.

(3) The Petitioner shall tender with his application such number of notices as is required for service on the respondents and himself together with such number of copies of the documents referred to in sub-rule (1) of this rule as is required for service on the respondents. The petitioner shall enter in such notices the names and addresses of the parties, and the name, address for service and telephone number of his instructing Attorney-at-Law, if any, and the name, address and telephone number, if any, of the attorney-at-law, if any, who has been retained to appear for him at the hearing of the application, and shall tender the required number of stamped addressed envelopes for the service of notice on the respondents by registered post. The petitioner shall forthwith notify the Registrar of any change in such particulars.

(4) Upon an application for special leave to appeal being lodged, the Registrar shall insert in the notices tendered by the petitioner the Supreme Court number allotted to the said application, and the date of hearing of the application, after consulting the petitioner. He shall issue one copy to the petitioner upon request, obtaining a written acknowledgement on the record itself; a copy of such notice shall not be posted to the Petitioner.

(5) The petitioner shall, not less than two weeks and not more than three weeks after the application has been lodged, attend at the Registry in order to verify that such notice has not been returned undelivered. If such notice has been returned undelivered, the petitioner shall furnish the correct address for the service of notice on such respondent. The Registrar shall thereupon despatch a fresh notice by registered post, and may in addition dispatch another notice, with or without copies of the annexures, by ordinary post.

He may, if he thinks fit, and after consulting the petitioner, substitute a fresh date of hearing, or direct that the matter be called in the Registry, o the date originally fixed for the hearing, for the purpose of fixing a fresh date of hearing.

(6) The respondent shall, within fourteen days of the receipt of such notice, enter an appearance in the Registry of the Supreme Court, and if he intends to oppose the grant of special leave to appeal shall lodge a Caveat indicating such intention.

(7) Not less than twenty one days before the date specified in the aforesaid notice as the date of hearing of the application, any respondent may lodge (with notice to the petitioner and other respondents) a statement, together with three additional copies thereof, setting out his objections to the grant of special leave to appeal or controverting the allegations of fact set out in the petition; where such statement contains allegations of fact which cannot be verified by reference to the judgment or order of the Court of Appeal in respect of which special leave to appeal is sought, affidavits and other relevant documents shall be annexed in support, and the provisions of rule 6 shall apply mutatis mutandis.”

AND WHEREAS several of the above mandatory provisions do not seem to have been complied with, in that, the 11th Respondent – Respondent was never served with notice of the application for special leave to appeal;

AND WHEREAS the 11th Respondent – Respondent has not been served with the Petition, Affidavit and annexes relating to the said application to date;

AND WHEREAS in the above circumstances the order granting special leave to appeal has been made per incuriam, in violation of the principles of natural justice and in breach of the aforesaid Rule and thus ought to be set aside ex debito justitea;

We respectfully MOVE that Your Lordships’ Court be pleased to set aside the said order granting special leave to appeal and cause the notice of same to be served on the 11th Respondent – Respondent to enable him to file a Caveat as contemplated under the aforesaid Rule and be heard in opposition to the grant of special leave to appeal on a date to be fixed for that purpose;

We also respectfully MOVE that  Your Lordships’ Court be pleased to  permit the Counsel for the 11th  Respondent-Respondent to  support this Motion when this  application is next taken up in   Your Lordships’ Court on 29th May 2013.

A  copy of this Motion  is being served  on  the Party Noticed (Amicus Curiae) – Petitioner – Appellant   by  Hand and  the relevant Proof  of Delivery shall be filed of record.

Freedom of Assembly in Sri Lanka[1]

Freedom of Assembly in Sri Lanka[1]

Tuesday, May 28, 2013

Four years since the end of the war, restrictions on human rights and fundamental freedoms that were in place during the war in the name of ‘national security’ are largely unchanged.[2] The Government has systematically sought to suppress dissent and in particular, peaceful assembly, though this is a fundamental right guaranteed under constitution and an obligation under the international law.[3] Dissidents of the government participating in peaceful assembly have been attacked, arrested, threatened, obstructed and subjected to intimidating surveillance of the Government through the police, military and other supporters.

The situation is worst in the Northern Province. Incidents of suppression – including those of mass protests by political parties, student groups, trade unions and civil society – have also been recorded from the capital, Colombo, Southern and Central parts of the island. Police have dispersed protests – sometimes violently and even looked on when violent mobs have / threatened to attack protestors;[4] people have been stopped from attending gatherings;[5] court orders are sought, and often obtained, to prevent rallies and marches from taking place;[6] police permission is sometimes outright refused.[7] Many assemblies which are deemed anti-Government are subjected surveillance by the state’s intelligence services.[8] Organizersof protests and participants too, are attacked by those alleged to be Government groups and supporters before, during and after peaceful assemblies.[9] People of the North and East, are not permitted to peacefully commemorate, or even light a candle for the dead, or fallen LTTE cadres, particularly on May 18^th(the day the war ended), or on November 27 (LTTE Heroes Day).[10] Police has tried to block funerals of such as political prisoners killed in custody and opposition party members killed that are considered as creating a negative image for the government and they have ended up as “guarded” funerals under heavy military / police guard and surveillance.[11]

Significant cases in the North and East

Freedom of Assembly in Sri Lanka[1] by nelvely

‘I Have Repeatedly Urged The US To Close Guantanamo Bay’ – Pillay ‘s Opening Remarks At UNHRC Today

Human Rights Council 23rd Session;  Opening Statement by  High Commissioner Ms. Navi Pillay 

May 28, 2013 

Mr. President
Distinguished Members of the Human Rights Council,
Excellencies and colleagues,

It is, as ever, an honour to open this session of the Human Rights Council. I come to this task today in the hope that we will be able to spark tangible action to stop theescalating bloodshed and suffering in Syria, which after 26 months has become an intolerable affront to the human conscience.

Navi Pillay

What began as non-violent protests has spiralled into a brutal and increasingly sectarian civil war, to some extent fuelled by external actors. Civilians bear the brunt of this crisis in which human rights violations have reached horrific dimensions. Confronted with the flagrant disregard of international law and human life on every side, I feel utter dismay.

‘I Have Repeatedly Urged The US To Close Guantanamo Bay’ – Pillay ‘s Opening Remarks At UNHRC Today by nelvely

Martin Collacott: How Canada became the odd man out in Sri Lanka 

Martin Collacott, National Post | 13/05/28 | Last Updated: 13/05/27 
More from National Post

AP Photo/Lefteris PitarakisCiting human rights abuses in Sri Lanka, Canadian Foreign Minister John Baird has announced that he will not attend the Commonwealth Heads of Government Meeting in November.

Canadian Foreign Minister John Baird has announced that he will not attend the Commonwealth Heads of Government Meeting in Sri Lanka this November because of that country’s sub-par human rights record. No other members of the Commonwealth, including Britain, Australia and New Zealand, have followed Canada’s example.

There is no question that Sri Lanka has a poor human rights record — one that might have been expected to improve after the long civil war ended in 2009, but which did not. Judges have been threatened and impeached, and many journalists murdered or driven from the country. There is little tolerance for criticism of Sri Lankan President Mahinda Rajapaksa’s government from any quarter.

Canada has the largest Sri Lankan Tamil community outside of South Asia, and many of its members seek to raise awareness of the fact that the government in Colombo is repressive and that Tamils in Sri Lanka are persecuted. This helps explain why Stephen Harper’s government feels the need to express its displeasure with Sri Lanka’s poor commitment to human rights.

Many Tamils living in Canada came here as refugees. Indeed, in one year alone (2003), Canada accepted far more Tamil refugee claimants than all the other countries in the world combined. Some of these refugees had ties to the Tamil Tigers military and terrorist group that was then fighting against Sri Lanka’s government.

The voting power of these Tamils distorted Canadian policy: Liberal governments repeatedly ignored CSIS recommendations that the Tamil Tigers be designated as a terrorist organization, even though Britain and the United States had done so. As a result, the Tigers were able to use Canada as one of their principal bases for fundraising — a situation that may well have contributed to prolonging the conflict and carnage in Sri Lanka.

Even after the Conservatives took office in 2006, and wasted no time in adding the Tamil Tigers to the official national list of terrorist groups, Tiger supporters continued to exercise considerable influence within the Liberal Party of Canada. At the Liberals’ December 2006 leadership convention, for example, a block of delegates pressing to have the Tigers removed from the terrorist list played a key role in the selection of the new leader.

Stewart Bell/National PostA 2008 rally in Downsview Park in Toronto where thousands of Canadian Tamils gathered to call for the creation of a separate homeland for Tamils in Sri Lanka.

The failure for many years of countries such as Canada to curtail Tamil Tiger activities is, in all likelihood, a factor in Sri Lanka’s continuing indifference to international entreaties to improve its human rights record: Having turned a blind eye to the Tamil Tigers for so many years, we no longer have credibility in lecturing Sri Lanka over its post-war policies.

As for calls for an international investigation into the massacre of Tamil civilians by the Sri Lankan armed forces in the closing stages of the civil war, this is another area where the Sri Lanka government feels it is not being treated fairly.

While there is considerable evidence that such large-scale killings took place, many occurred in large measure because the Tigers chose to use their own population as human shields. The fact that there are no longer identifiable high-level Tiger leaders around to blame for their contribution to these massacres no doubt does little to encourage the Sri Lankan government to expose itself to what it believes will be a very one-sided investigation.

No doubt Britain, Australia and New Zealand share Canada’s concern over the poor state of human rights in Sri Lanka. The fact that Canada alone chose not to send its foreign minister to the Commonwealth Heads of Government Meeting in Colombo, however, may be more the result of domestic Canadian considerations — such as increasing political support among Tamil voters — than anything else.

National Post

Martin Collacott was the Canadian High Commissioner to Sri Lanka when the civil war there began in earnest in 1983. He now lives in Vancouver.

LLRC Recommendations Not Met by 13A

by Neville Ladduwahetty-May 27, 2013

The recommendations of the Lessons Learnt and Reconciliation Commission (LLRC) have come to be accepted by the International Community judging from the repeated references to it both nationally and internationally, in complete disregard to the Government’s National Plan of Action that was developed by incorporating selected recommendations in the LLRC Report. In the meantime, India while supporting International Resolutions to implement LLRC Recommendations is also insistent that Sri Lanka implement the 13th Amendment evidently unaware of significant incompatibilities between the two.

Despite the fact that the 13th Amendment was made part of Sri Lanka’s constitution since 1987 at the insistence of India, the LLRC did not endorse it as the political arrangement that would suit Sri Lanka’s particularities. Instead, the LLRC made recommendations that are in fact incompatible with certain key provisions in the 13th Amendment. The Government is thus faced with a dilemma; whether to implement the 13th Amendment as provided in the Constitution and ignore the recommendations of the LLRC, or to modify the 13th Amendment in a manner that reflects the recommendations of the LLRC. Adopting the latter approach would require serious constitutional amendments and even revisions to the main body of Sri Lanka’s Constitution.

The LLRC RECOMMENDATIONS deal with the following key provisions:

1. THREATS TO TERRITORIAL INTEGRITY AND DISCOURAGING SECESSIONIST TENDENCIES

Paragraph 9.231 (d) of the LLRC Report states: "In addressing the question of devolution two matters require the attention of the government. Firstly, empowering the Local Government institutions to ensure greater peoples’ participation at the grass roots level. Secondly, it is also imperative that the lessons learnt from the shortcomings in the functioning of the Provincial Councils system be taken into account in devising an appropriate system of devolution that addresses the needs of the people. It should at the same time provide for safeguarding the territorial integrity and unity of Sri Lanka whilst fostering its rich diversity".

Paragraph 9.235 states "…It is also important to ensure that any power sharing arrangement has inbuilt mechanisms that would effectively address and discourage secessionist tendencies and safeguard the sovereignty and integrity of the State.

2. DEVOLUTION TO THE PERIPHERY AND POWER SHARING AT THE CENTER.

Paragraph 9.236 states: "The Commission wishes to underline the critical importance of making visible progress on the devolution issue, in order to ensure the success of any process of lasting and sustainable reconciliation. The Commission therefore recommends that the present opportunity be utilized to launch a good-faith effort to develop a consensus on devolution, building on what exists – both, for maximum possible devolution to the periphery especially at the grass roots level, as well as power sharing at the centre. This consensus should be one that will enable peoples’ participation in governance decisions affecting them and avoid costly and unnecessary duplication of political, bureaucratic and other institutional structures that hamper efficient, cost-effective and transparent governance.

13th AMENDMENT WITH PROVINCE AS DEVOLVED UNIT IS A THREAT TO SRI LANKA’S TERRITORIAL INTEGRITY.

The 13th Amendment recognizes the Province as the devolved unit. A three decade long war was waged to create a separate state consisting of the Northern and Eastern Provinces. Taken together, the two provinces amount to 1/3 of Sri Lanka’s land mass and 2/3 of its coastline. Thus, both in terms of land mass and length of coastline, together with access to the natural resources such as Trincomalee Harbour, in the background of geostrategic importance of the Indian Ocean, this presents prospects that are too tempting to discourage secession. Such a process could start with the Northern Province and later engulf the Eastern Province as well.

It is not devolution that threatens the integrity of states. It is devolution to large sized territorial units with ethnic concentrations that threaten the territorial integrity of states. This is amply demonstrated in the most recent developments wherein Scotland is attempting to seek independence from the United Kingdom and Catalonia is seeking independence from Spain. Similar tendencies are inevitable in Sri Lanka too with the Northern Province wanting to secede from the rest of Sri Lanka with the full support and backing of Tamil Nadu.

13th AMENDMENT DOES NOT DEVOLVE POWER TO GRASS ROOTS LEVELS

The 13th Amendment has no provision for devolution to grass roots levels as recommended by the LLRC since all powers are devolved ONLY to the Province. According to Article 154G (1) "Every Provincial Council may, subject to the provisions of the Constitution make statutes applicable to the Province for which it is established with respect to any matter set out in List I of the Ninth Schedule". Since every Provincial Council MAY make statutes the task of maximum devolution especially to the grass roots levels is left entirely to the discretion of each Provincial Council; an arrangement that is totally unsatisfactory and would inevitably lead to devolved powers being asymmetric among the Provinces.

Power devolved constitutionally beyond the Province would result in 4 levels of devolution; i.e., Province, District, Pradeshiya Sabha and the Gramaraja. Such an arrangement would be an administrative nightmare because of the overlapping of devolved powers among these 4 levels.

In addition, devolving power to grass roots levels amounts to diluting powers granted under the 13th Amendment to the Provincial Councils and would be strenuously resisted by them. Under these circumstances, the only way to overcome such resistance would be via measures using a 2/3 majority similar to the recently passed Divi Neguma Bill. The support of a 2/3 majority needed to pass such legislation is not an assured guarantee.

13th AMENDMENT DOES NOT INCLUDE SHARING POWER AT THE CENTER

The 13th Amendment has no provision to share power at the Center. Consequently, the peripheral units are excluded from participating in the Executive branch of the Government. Whatever representation there is for the periphery at the Center, is only in Parliament. The reference in the LLRC report to a Second Chamber is a feeble and a superfluous attempt for the provinces to be represented at the Center to engage in Legislative action since Parliament is already representative of the provinces. A more meaningful measure would be to accommodate the major communities in the Executive. This is not provided for in the 13th Amendment.

AN ARRANGEMENT THAT WOULD MEET LLRC RECOMMENDATIONS

A peripheral unit that would offer a greater guarantee of territorial integrity, dissuade secession and foster diversity would be the District, with the provision that two or more Districts are NOT permitted to merge, as in the Constitutions of the USA and Switzerland; a precaution that is not provided for in the 13th Amendment. Powers devolved to the Districts, Pradeshiya Sabhas and Gramarajas based on the principle of subsidiarity would meet the recommendation in the LLRC Report of maximum devolution to the grass roots levels. This would also result in 3 (and NOT 4) levels to which power would be devolved, similar to arrangements working well in other countries where power has been devolved (viz., State, County and township). Under this arrangement all existing Provincial Council Members would be accommodated in the District Councils since election to the Provincial Councils are on the basis of the Districts.

Since Parliament is already representative of communities and territories, the need is to provide for the major communities to share Executive power at the Center in order to foster inclusion of all communities in executive decision-making processes on an equitable basis. Such an arrangement should be constitutionally provided for and could be based on the ratio of ethnic representation in Parliament at any given time, or any other rational basis. The rationale is that since powers devolved to a unit smaller than the Province must necessarily be less, there is a need to compensate by sharing power at the Center, chiefly in the Executive, thereby also fostering inclusiveness in national decision making processes.

CONCLUSION

The strident call by the International Community steered by the US is for the implementation of the LLRC recommendations. On the other hand, India while supporting US efforts in Geneva for the implementation of LLRC recommendations, insists that Sri Lanka implement the 13th Amendment, apparently not being cognizant of the incompatibilities that exist between them. Therefore, there is an urgent need for the Government of Sri Lanka to bring to the attention of the International Community, and the US as well as India, the incompatibilities that exist between the LLRC recommendations and the 13th Amendment and draw attention to the discrepancy .

The Government of Sri Lanka proceeding further into consolidating the Provincial Council system under the 13th Amendment amounts to ignoring key recommendations of the LLRC; a prospect that is bound to bring serious condemnations in future sessions at Geneva possibly followed by measures to punish Sri Lanka for ignoring international dictates. Therefore, the Government of Sri Lanka is duty bound to bring to the attention of the International Community, the US and India that accommodating the key recommendations of the LLRC would entail revisions to existing provisions of the 13th Amendment since no provisions currently exist in it to accommodate the key recommendations in the LLRC Report : discouraging secessionist tendencies, devolution to grass roots levels, and power sharing at the Center.

Secessionist tendencies could be discouraged by making the District the devolved unit instead of the Province. The smaller unit ensures territorial integrity by discouraging secessionist tendencies. Devolving power to grass roots levels would require diluting powers already devolved to Provinces under the 13th Amendment; an attempt that would be resisted strenuously by the Provincial Councils. Power sharing at the Center entails revisions that go beyond the 13th Amendment and involves revisions to the Constitution of the Republic of Sri Lanka. These complexities should have been brought to the attention of the International Community, the US and to India. By not doing so and by proceeding to implement provisions in the 13th Amendment, modified or not, would make the task of incorporating the recommendations of the LLRC recommendations at a later date an impossible task. What the Government of Sri Lanka should do is to explain the complexities involved and propose the need to temporarily suspend the implementation of the 13th Amendment until the required constitutional revisions needed to accommodate the LLRC recommendations are completed by the appointed Parliamentary Select Committee. Such a measure would induce all political parties to actively participate in reaching consensus on an acceptable political arrangement because it would be in the interests of all concerned.