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Broken promises


TNA response to the position of the Government of Sri Lanka at the 19th session of the UN Human Rights Council

1. The Government of Sri Lanka has serious issues with regard to telling the truth and keeping its promises

1.1. In response to Minister Mahinda Samarasinghe’s statement to the 18th Session of the United Nations Human Rights Council [UNHRC] on 12 September 2011, the Tamil National Alliance [TNA] issued a statement the very next day correcting the record and urging the Sri Lankan government "to be more forthright and honest in its representation of the situation in Sri Lanka to the international community." Unfortunately, the government continues to mislead the international community at the ongoing 19th Session of the UNHRC sessions as well.

1.2. As Sri Lanka approaches the three-year mark since the end of the war, which lasted almost three decades, and though nearly six decades have lapsed since the commencement of exclusionary policies targetting the Tamil people, various pledges made by the Government of Sri Lanka with regard to human rights, accountability and evolving a political settlement have not been fulfilled. The post-independence history of Sri Lanka contains stark reminders of the disturbing ramifications of broken promises and recurring violence.

1.3. Sri Lanka (then Ceylon) gained independence in 1948 under the ‘Soulbury Constitution’. The ‘Soulbury Constitution’ provided for some minimal safeguards to minorities. Section 29 contained prohibitions on discriminatory legislation. In particular, Section 29(2)(b) and (c) prohibited Parliament from passing any laws that (i) made persons of any community or religion liable to disabilities or restrictions that persons of other communities or religions were not subject to; or (ii) conferred on persons of any community or religion any privilege or advantage that is not conferred on persons of other communities or religions. Yet, notwithstanding the operation of section 29(2), Sri Lanka’s legislature passed a number of discriminatory laws. The Citizenship Act of 1948, which denied citizenship to Tamils of Indian origin who constituted approximately 11 percent of the country’s total population at the time, and the Official Language Act of 1956, which made Sinhala the only official language, were the most notable of these laws. Similarly, the government began to intensify the practice of altering the demographic composition of the Eastern Province by actively supporting Sinhala colonization in areas inhabited by the Tamil speaking people.

1.4. Between 1947 and 1981, while the national increase of the Sinhala population was 238 percent, the increase of the Sinhala population in the Eastern Province was 883 percent.

1.5. The Bandaranaike–Chelvanayakam Pact of 1957, and later the Dudley SenanayakeChelvanayakam Pact of 1965 intended to resolve the festering inter-ethnic disputes between the constituent Peoples of the country through legislation that recognized and preserved the linguistic and cultural identity of the Northern and Eastern Provinces. However, under pressure from an extremist fringe within the Sinhala community, the first of these agreements was abrogated while respective Prime Ministers did not implement the second.

1.6. In 1972, a new Constitution that formally sanctioned policies targetting the Tamil speaking people was promulgated. This Constitution entrenched the unitary character of the state, conferred on Buddhism the foremost place in the Republic, and gave constitutional primacy to the Sinhala language. This was enacted without the consent or participation of the Tamil people.

1.7. The 1972 Constitution also dispensed with the salient minority safeguards found in section 29(2) of the ‘Soulbury Constitution’. In fact, the Privy Council, the apex court until 1971, described the minority safeguards in section 29(2) as representing "the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution: and these are therefore unalterable under the Constitution." [Lord Pearce, Bribery Commissioner v. Ranasinghe (1964) 66 NLR 73, at 78].

1.8. The repeal of this historic compact, the very basis on which the constituent Peoples of Ceylon accepted the ‘Soulbury Constitution’, which in turn led to independence, heaped scorn on legitimate Tamil aspirations. The 1978 Constitution followed in the footsteps of the 1972 Constitution and entrenched the foremost place given to Buddhism, continued to give primacy to the Sinhala language, and by entrenching the unitary character of the State, excluded the Tamils from the democratic exercise of political power.

1.9. A disturbing feature of Sri Lanka’s post-independence history was that of organized violence in the form of racial pogroms being periodically unleashed on the Tamil People in 1956, 1958, 1961, 1977, 1981 and 1983. These attacks were a direct response to the articulation of their political aspirations by the Tamil people.

1.10. The consistent democratic verdicts of the Tamil people since 1956, expressing their political aspiration for substantial self-rule in the Northern and Eastern Provinces, were denied under the above two constitutions. This factor, together with the discriminatory policies pursued under these two constitutions, particularly in education, employment and economic opportunities, the state-aided Sinhala settlements in the Northern and Eastern Provinces and the anti-Tamil racial pogroms gave birth to armed resistance by Tamil youth.

1.11. International concern that followed from the massive anti-Tamil pogrom of 1983, led to the Indo-Lanka Accord of 1987 and the passage of the Thirteenth Amendment to the Constitution. While this established Provincial Councils and devolved a measure of legislative power to the Provinces, it fell far short of meaningful power-sharing. Nevertheless, it represented an initial minimal step towards devolution of power to the Provinces. A significant provision of the Indo-Lanka Accord – an international treaty – providing for the merger of the Northern and Eastern Provinces has since been violated for spurious reasons.

1.12. Although public officials, members of the judiciary and elected representatives swear or affirm to uphold the Constitution, the Thirteenth Amendment has not been fully implemented. Even the limited provisions relating to the devolution of land and police powers to the Provincial Councils are deliberately violated.

1.13. Moreover, commitments made both domestically and internationally with regard to a political solution have not been honoured. Similarly, commitments made relating to human rights and accountability have been routinely dishonoured.

1.14. It is in this context that Minister Samarasinghe’s recent statement on 27 February 2012 at the 191h Session of the UNHRC rings hollow.

2. Broken Promises on Political Settlement

2.1. The Sri Lankan government has for many years promised a power-sharing arrangement to share power equitably with the constituent Peoples of Sri Lanka. President Rajapaksa’s Joint Statement with United Nations Secretary General Ban Ki-moon explicitly contained a number of assurances relating to a promised political solution, one of which was where:

"President Rajapaksa expressed his firm resolve to proceed with the implementation of the 13th Amendment, as well as to begin a broader dialogue with all parties, including the Tamil parties in the new circumstances, to further enhance this process and to bring about lasting peace and development in Sri Lanka." [Joint statement by UN Secretary-General, Government of Sri Lanka, 26 May 2009].

2.2. Even before the conclusion of the war, at the inaugural meeting of the All Party Representatives Committee (APRC) and its multi-ethnic Experts Committee appointed by the President to assist the APRC, on 11 July 2006, the President enunciated his vision for constitutional change, stating:

"People in their own localities must take charge of their destiny and control their politico-economic environment. Central decision-making that allocates disproportionate resources has been an issue for a considerable time. In addition, it is axiomatic that devolution also needs to address issues relating to identity as well as security and socio-economic advancement, without over-reliance on the centre ... In sum, any solution needs to as a matter of urgency devolve power for people to take charge of their own destiny. This has been tried out successfully in many parts of the world. There are many examples from around the world that we may study as we evolve a truly Sri Lankan constitutional framework including our immediate neighbour, India ... Any solution must be seen as one that stretches to the maximum possible devolution without sacrificing the sovereignty of the country given the background of the conflict."

2.3. In confirmation of the above, President Rajapaksa gave the visiting Indian Foreign Secretary Shivshankar Menon, in November 2006, details of the work being done by the APRC and the multi-ethnic group of experts to provide a framework for the resolution of the ethnic problem.

2.4. The multi-ethnic experts committee - appointed by the President - through a majority report made its proposals to the APRC. The deliberations of the APRC, which was set up in July 2006, were repeatedly held out by the Government of Sri Lanka as the mechanism by which a political settlement would be achieved. The APRC met 128 times for almost three years. But its final report has not even been made public. Significantly, however, the TNA was not invited to the APRC and did not participate in its deliberations.

2.5. The President’s commitment to implement the Thirteenth Amendment, while also initiating a process that would take into account the aspirations of the Tamil people, was also repeatedly made at the UNHRC. At the 10th Session of the Council held three years ago, in March Minister 2009, Minister Mahinda Samarasinghe reiterated the President’s pledge, stating:

"Our national discourse has been dominated for decades by an ethnic issue, which requires a political solution as a means to resolve problems. This political solution could never be imposed by force of arms and certainly not gained by acts of terrorism. It is for this reason that we are also trying to forge a sustainable political solution acceptable to all Sri Lankans ... [o]n a recommendation of the All Party Representatives Committee, we are able to properly implement the 13th amendment to the Constitution, which was passed in 1987."

Continued tomorrow

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