NorthEast demerger, breach of International Treaty- Sampanthan

[TamilNet, Friday, 12 January 2007, 06:53 GMT]
“Not only the Tamil speaking people but also the International Community are unhappy with the de-merger of NorthEastern province. Though the Supreme Court of Sri Lanka told that former President J. R. Jayewardene’s step was defective and invalid, the Sri Lanka's President Mr. Rajapakse who wants to share no powers with Tamils, seized the opportunity quickly and declared the de-merger amidst the opposition from many of his own cabinet ministers and Members of parliament. Mr Rajapakse has not only betrayed the Tamil people, but also breached an international treaty, R. Sampanthan told in the Sri Lankan Parliament Wednesday.

Mr Sampanthan spoke during a special debate held on Government’s recent declaration of de-merger of NorthEastern province.

The full text of his address follows:

Hon Speaker Sir,

I have given notice and accordingly move the following motion: - That Parliament do adjourn at the end of Questions today, to discuss the following matter of urgent public importance. “ The Peace process and the current situation pertaining to the Tamil Civilian population in the North East of Sri Lanka.”

The matter which has caused the utmost agitation in recent times in the minds of all who very much wish the peace process to succeed has been the efforts at dismantling the merger of the Northern and Eastern Provinces. This development was in consequence of the three petitions filed in the Supreme Court on the 14th July 2006, by certain persons who in my submission do not fall within the category of historical inhabitants of either the Eastern or Northern provinces, alleging a violation of their fundamental rights.

It is relevant to mention at this point, that President Chandrika Bandaranaike Kumaratunga had on 10th November 2005 made an order under section 37 (2) (b) of the Provincial councils Act No:- 42 of 1987,and published in Gazette Extraordinary No:-1420/27 of November 23rd 2005 postponing the date for the holding of the poll in regard to whether the two provinces should be administered together or not, to 16th November 2006 in the Eastern Province and to 5th December 2006 in the Northern Province. This postponement by President Chandrika Bandaranaike Kumaratunga was the twenty sixth such postponement over a period of eighteen years commencing in 1988 and ending in 2006, starting with President J.RJayawardene, and subsequently effected by Presidents R.Premadasa, D.B.Wijetunga, and Chandrika Bandaranaike Kumaratunga. During the several postponements effected by President Chandrika Bandaranaike Kumaratunga commencing 1994 and expiring 2005, over a period of eleven years, the present President Mahinda Rajapakse was either a Minister or the Prime – Minister in the Chandrika Bandaranaike Kumaratunga Government, and accepted the validity of the said several postponements effected by President Chandrika Bandaranaike Kumaratunga as Executive President.

The Supreme Court delivered its judgment on 16th October 2006, The court held that the purported amendment of the section 37 (1) (b) of the Provincial Councils Act by the President, by an emergency regulation was invalid, and consequently the proclamation made by the President on September 8th 1988, constituting the Northern and Eastern provinces as one unit was invalid. I have dealt with this matter in the course of the statement made by me in Parliament on 7th November 2005.

While we respectfully disagree with the view taken by the Supreme Court based upon a procedural flaw, it is difficult to comprehend that this so called procedural flaw was discovered only after a period of eighteen years and after several successive Presidents had during this period acted in pursuance of the proclamation made by President J.RJayawardene in 1988.

It would be relevant to be reminded that but for the order delivered by the Supreme Court on 16th October 2006, President Mahinda Rajapakse would have been required to make a determination on whether the poll should be held or postponed, by November 2006 and given the condition in the Indo Sri Lanka agreement that, ( open quotation ) “ All persons who have been displaced due to ethnic violence, or other reasons will have a right to vote in such referendum ( poll ); Necessary conditions to enable them to return to areas from where they were displaced will be created” ( close quotation ); and in view of this condition not having been fulfilled ; it being well known that hundreds of thousands of displaced Tamil Civilians, particularly from the Eastern Province, had not returned to the areas from where they were displaced, and conditions not having been created for their return; and over Two Hundred and Fifty Thousand Tamil speaking civilians largely from the Eastern Province having been displaced in 2006, no referendum ( poll ) could have been held in terms of the Indo - Sri Lanka Agreement, and in the said reality , President Mahinda Rajapakse would have had no alternative but to postpone the date for holding the referendum ( poll ). The only other alternative would have been for President Mahinda Rajapakse to defy the Indo - Sri Lanka Agreement, an International treaty, by which he as Executive President of Sri Lanka was bound. It has to be pointed out with respect that the judgment of the Supreme Court has had the effect of saving him from this predicament.

The Governor of the North East provincial council was one of the respondents in the said petition. It would be pertinent to quote what he stated in the said judicial proceedings. I quote from the affidavit dated 31st August 2006 filed by him in court. ( open quotation ) –

para 03 ( a ) “ the petitioner has contravened the rules of your lordship’s court by failing to cite the necessary parties to this application”. – para 03 ( b ) “that your Lordship’s court is precluded from granting the relief against His Excellency the President, as His Excellency the President cannot be made a party to this application in terms of Article 35(1) of the constitution”

para 03 ( c ) “ that the petitioner’s application is time barred ”. para 03 ( d ) “ that the petitioner is guilty of laches ”. para 03 ( e ) “ that the petitioner is guilty of acquiescence in the subject matter of this application and / or is guilty of inaction and / or lack of diligence”.

The petitioner having made his application after 18 years from the purported infringement, the time limit for such complaints being within one month of such infringement.

The historical inhabitants of the Eastern province vital stake holders, not having been made respondents in the said proceedings; their application to intervene having been refused by Court. I have dealt with this matter fully in the statement made by me in Parliament on 7th November 2006.

I quote further from the said affidavit of the Governor-

para 9- “ I am advised to state and therefore I state that the said regulation made by President J.R.Jayawardene under section 5 of the Public Security ordinance had the legal effect of amending / modifying section 37 ( 1 ) ( b ) of the Provincial Councils Act No: 42 of 1987 ”

Para 21- “ I further state that in the said circumstances, the fundamental rights of the petitioner enshrined in Article 12 ( 1 ) of the Constitution have not been violated ”

Para 34- “ I am advised to state and I state as follows :- (a) that the petitioner’s application is time barred, (b) that the petitioner’s application is misconceived in law, (c) that the petitioner’s application does not confirm with the rules of the Supreme Court. (d) that the petitioner has failed to establish any infringement of the fundamental rights guaranteed by Article 12 ( 1 ) of the constitution and (e) that in the circumstances the petitioner is not entitled to any of the relief as prayed for.

The above reflects the position taken up by the Governor of the North – East province, and therefore by the Government of Sri Lanka in the Supreme Court.

If the above, was the position taken up by the Government of Sri Lanka through the Governor North – East Province in court, is it not obligatory on the part of Government to sustain that position. The court does not and indeed cannot prohibit the merger. It merely states that a certain step taken by President J.R.Jeyawardene was defective and therefore invalid. We submit that it is obligatory on the part of the Government to cure that defect. If the Government does not do so, it can only mean that the Government is using the judgment of the court as an excuse to avoid fulfilling it’s obligation.

It is relevant also to examine the official reaction to the judgment of the Court. The Daily Mirror of October 17th 2006 the day after the judgment, reported that several Hon Ministers had at the Government Parliamentary Group stated that they were unhappy with the judgment. Amongst them were Consumers Affairs Minister Jeyaraj Fernandopulle, Foreign Minister Mangala Samaraweera, Constitutional Affairs Minister D.E.W Gunasekara, Health Minister Nimal Sripala de Silva, Public Administration Minister Sarath Aamunugama. I have not the slightest doubt that many other Hon - Ministers and Members of Parliament were of the same view. In a significant statement in Parliament on 19th October 2006 the Leader of the Sri Lanka Muslim Congress Hon Rauf Hakeem stated that “it would be naive to assume that the Muslims would be overjoyed regarding the demerger of the Northern and Eastern Provinces , knowing fully well the timing and implications of the Judgment. Hon Rauf Hakeem further said that they could not be so naïve as to ignore the sentiments of their Tamil brethren”. Hon Rauf Hakeem also emphasized “that of particular significance is a need to address the Muslim dimension in a permanently merged Northern and Eastern Province”. This dimension, Mr. Speaker is a legitimate aspiration of our Muslim brethren, which I have not the slightest doubt the Tamil people and those representing them including the L.T.T.E, fully comprehend, and will accept.

It would be relevant to examine the views expressed by the International Community.

The co-chairs of the Tokyo donor conference representing a group of 58 donor countries and consisting of Norway , the European Union, the U.S.A and Japan have expressed their views on 12th September 2006 at their meeting at Brussels, ( before the Judgment ); the Co-chairs stated and I quote “There should be no change to the specific arrangements for the North and East which could endanger the achievement of peace. The legitimate interests and aspirations of all communities, including the Tamil, Muslim and Sinhala communities must be accommodated as part of a political settlement.” (Close quote). The Co-chairs issued yet another statement after their meeting at Washington D.C on November 21st 2006 (after the judgment), which I quote “ At the same time, the specific arrangements for the North and East should not be disturbed as they are fundamental to continuing the dialogue to achieve an agreement. The legitimate interests and aspirations of the communities, including the Tamil, Muslim and Sinhala communities must be accommodated as part of a political settlement”.

Our Neighbor and Regional Power India, has been very much in touch with the President and Government of Sri Lanka on this issue both at New Delhi and during the non-aligned summit at Cuba in September 2006. It was the Indo Sri Lanka Agreement of 29th July 1987 which brought about the merger of the Northern and Eastern Provinces as one unit, on the basis of the historical incontrovertible reality that the Northern and Eastern provinces were the areas of historical habitation of the Tamil speaking people. New Delhi has expressed it’s strong commitment to the provisions of the Indo – Sri Lanka Agreement. We were informed by high officials in New Delhi on 21st September 2006 that the Sri Lanka. Government had assured the continuance of the existing arrangement, at the meeting between the Prime Minister of India and the President of Sri Lanka at Havana, Cuba in September 2006. A delegation of the I.T.A.K met with Prime Minister Manmohan Singh on 22nd December 2006. We told the Hon. Prime Minister that the merger of the North – East was the corner stone of the peace process, and that the peace process would crumble unless the merger was sustained. Prime Minister Manmohan Singh was in complete agreement with that view, and unambiguously reiterated to us, India’s commitment to the restoration of the Status Quo Ante of the merged North – East, as per the Indo – Sri Lanka agreement.

Following the judgment of the Supreme Court, Hon.G.G.Ponnambalam on behalf of the I.T.A.K made a statement in Parliament on 19th October 2006, setting out our initial reaction, and sought a response >from the government.

The Hon. Prime minister made a statement in Parliament on the merger of the North – East Provinces on 7th November 2006. The Hon Prime Minister in the course of that statement did not shut the door. The Hon Prime Minister outlined several options that were available to Government. I wish to refer to one of options in the Hon. Prime Ministers statement.

“The moving of a Bill and passing the same in Parliament, under Article 154A(3) of the Constitution for the purpose of laying down necessary criteria and formulating legal provisions to integrate two or three adjoining provinces as a single administrative unit, to decide on a structure whether the integration of the said provinces should be continued with or whether the said provinces should remain as separate administrative units”. This option suggested by the Hon. Prime Minister, is akin to the provisions of section 37 of the Provincial Councils Act subject to whatever modifications. The Hon Prime Minister has thereby accepted that the Government can take corrective action.

On the same date 7th November 2006, I made a comprehensive statement in Parliament on behalf of the I.T.A.K tracing the history and justification for the merger, stating our views on the proceedings before the court, and urging the Government to take necessary corrective action to restore the status Quo Ante pertaining to merger.

On 16th November 2006 a delegation of the I.T.A.K on the invitation of the President met with him. Matters pertaining to the merger of the North – East Provinces were discussed. After the said meeting, the I.T.A.K met with Hon. Ranil Wickramasighe Leader of the Opposition. Consistent with the position taken by his party since the announcement of the Court judgement, Mr. Ranil Wickramasighe assured us that his party would extend to any legislative measure to validly restore the Status Quo Ante pertaining to the merger, the fullest support. Subsequently, on 20th November 2006. I wrote to President Mahinda Rajapakse. May I read the said letter / table it and request that it be included in the Hansard. We urged that corrective action be taken to restore the Status Quo Ante pertaining to the constitution of the Northern and Eastern Provinces as one unit, and thereby honour and implement the Indo – Sri Lanka Agreement. We received an acknowledgement to our letter.

More recently, the Hon.Dilan Perera Deputy Minister for Justice, in a statement to the “Veerakesari” the Tamil newspaper, referred to deficiencies in the Sri Lanka Constitution, which were an impediment to the resolution of the National Question. He also stated that the bifurcation of the North –East had retarded the prospect of a resolution to the national question. He further stated that if political decisions were continuously reversed by the Court, the Tamil people would begin to regard the Court as belonging only to the Sinhala people. Tragically, the Tamil speaking people strongly feel that way, because the five-judge bench in the demerger issue comprised entirely of judges who were from the Sinhala community. Given the strong ethnic dimension of the issue before the Court, and the sensitive issue of the rights of Tamil speaking historical inhabitants, a Court reflective of ethnic pluralism, would have been free of such suspicion. Even more tragically, three of the judges who heard the demerger issue, constituted the Court in the case pertaining to the Post Tsunami Operational Management Structure (P.T.O.M’S). This matter also related to Tsunami reconstruction in the predominantly Tamil speaking North – East. It is well known that this arrangement too, was struck down by the Court, and yet another opportunity to get the peace process back on track was lost. In Acheh, Indonesia, the opportunity afforded by Tsunami has helped forge a political settlement between the Indonesian Government and the rebels in Acheh.

President Mahinda Rajapakse has talked of a referendum as a means of deciding whether the North and East could be merged.

It is necessary to point out that the policy document presented to the country, before the Presidential Election, the “Mahinda Chintana”, though it contained reference to various aspects of the North – East conflict did not contain any reference to the dismantling of the North – East merger.

The two Agreements signed by Presidential candidate Mahinda Rajapakse with the JVP and the J.H.U did not contain any reference to the dismantling of the North – East Merger, though the Agreements substantially related to the North – East question.

The North – East Merger existed at the time of the Presidential Election.

It is clear that President Mahinda Rajapakse did not obtain a mandate >from the country, for the dismantling of the North – East Merger. The Country could well take the view that it would be a very unwise step. It is my contention that a well informed country would have taken that view.

It must be pointed out, that President Chandrika Bandaranayake Kumaratunga who whole-heartedly supported the Indo - Sri Lanka Agreement, polled 62.28 % at the Presidential Election in November 1994. President Chandrika Bandaranayake Kumaratunga who continued with the North - East Merger polled 51.12% of the vote at the Presidential Election in December 1999. As earlier pointed out, President Mahinda Rajapakse was a Minister and thereafter Prime Minister in the Governments of President Chandrika Bandaranayake Kumaratunga and accepted the policies of the said Governments.

President Mahinda Rajapakse polled 50.29 % of the vote at the Presidential Election in November 2005. Though the Tamil people largely did not vote at the Presidential Election in November 2005, President Mahinda Rajapakse did not win in any one of the Electoral districts in the North – East. He polled less that his rival in the Jaffna and Vanni Electoral districts in the Northern Province, and less than his rival in each one of the districts, Batticaloa, Digamadulla and Trincomalee in the Eastern Province. It cannot be claimed that President Mahinda Rajapakse has a mandate from either the Northern Province or the Eastern Province particularly in regard to matters related to the North – East. This is a factual reality which in the present circumstances needs to be stated.

The Indo – Sri Lanka Agreement of 29th July 1987 and the Provincial Councils Act No. 42 of 1987, contemplate a referendum to be held, only where adjoining provinces have been constituted as one unit, with one Provincial council, one Governor etc. The Indo – Sri Lanka Agreement further stipulates in Para 2.4 – that “All persons who have been displaced due to ethnic violence, or other reasons will have the right to vote in such a referendum; Necessary conditions to enable then to return to areas from where they were displaced will be created”. Hundreds of thousands of Tamil People continue to be displaced; necessary conditions to enable them to return have not been created, and with all the violence being unleashed against the Tamil People, in the North – East presently, several tens of thousands more of Tamil people are continuing to be displaced. A referendum or any other electoral process in the present situation, would be illegal, fraudulent, and undemocratic.

We would strongly urge that the Government should not allow itself to be goaded by some of it’s alliance partners to take actions that would be against the long term interests of the Country. We strongly submit that the government should not make the judgment of the Court, an excuse for embarking on a course of action fraught with harmful consequences.

The option outlined by the Hon. Prime Minister in his statement on 7th November 2006 and referred to by me earlier, provides an opportunity. We would strongly urge the President and the Government to take corrective action, as the judgment of the Supreme Court only outlines a procedural flaw in regard to the manner of the merger; so as to restore the status Quo Ante pertaining to the merged North – East. Such a measure wills we are certain, have overwhelming support in this House.

It was the JVP, which mounted the challenges against the P.T.O.M’S arrangement, and the North – East merger in Court. Both these arrangements pertained to the North – East. The JVP contested the Local Authority Elections in the Digamadulla and Trincomalee Districts in the Eastern Provinces on it’s own in 2006. An examination of the results of the elections would clearly indicate it’s dismal performance even in the Sinhala majority local authority areas, invariably ending up at the bottom of the list, not winning a single seat, or just one, and very rarely two seats. It did not have any chance in the predominantly Tamil speaking Tamil or Muslim local authority areas. I wish to raise the question Mr. Speaker, as to whom the JVP represents, when it raises these extreme anti-minority positions that cause much harm particularly to people in the North – East. The JVP had the audacity to aver in the petition filed in the Supreme Court, on the merger issue, that 62% of the land area in the Trincomalee District and 72% of the Land area in the Amparai District are Sinhala majority areas, though the Sinhalese are only 25% the population in the Eastern Province; 33.62% in the Trincomalee district and 37.64% of in the Amparai district. Can the JVP explain how the Sinhalese who in the Eastern Province were only 0.53% in 1827, 4.66% in 1881, 4.53% in 1921 and 9.87% in 1946 about which time the country attained independence, came to exercise control over 62% of the Land area in the Trincomalee District, and 72% of the Land area in the Ampara District. The JVP is obviously thinking that such an outrageous situation is perfectly justified and that the Sinhala position in the Eastern Province must get even stronger. It is such disproportionate, unreasonable and unjust claims that are the key factors motivating the bifurcation of the North – East. Very clearly the intention is to convert the Eastern province which is historically and traditionally a preponderantly majority Tamil speaking area into a Sinhala majority Area at the earliest. How can the Tamil speaking people ( Muslims and Tamils ) who are 62% of the population in the Amparai District have only 28% of the land, while the Sinhalese who are 38% have 72% of the land ? I wish to make it perfectly clear that my arguments are not advanced against the Sinhala people; as I have often stated, I have much affection for the Sinhala peasant who is a decent human being, but it is our duty as the elected representatives of the Tamil speaking people to ensure that the legitimate interests of the Tamil speaking people who have never had equal treatment in this country, are adequately safeguarded at least in the areas of their historical habitation, against the political machinations of those who want to promote Sinhala hegemony and supremacism in every part of the country.

The electoral verdicts at elections in the North – East since 1956, have clearly demonstrated the Tamil aspirations; they have overwhelmingly supported the Federal Party and after 1977 till 2004, The Tamil United Liberation Front. This has also been so at the Parliamentary elections in 2004, and at the Local Authority elections in 2006 in the Eastern Province, in the Trincomalee and Digamadulla districts, which were contested on the ticket of the Federal party. An examination of the results would cleanly demonstrate the wish of the people, Local authority elections were not held in the preponderantly Tamil Batticaloa district and the districts in the Northern Province.

At the District Development Council Elections in 1981, the last election held before the displacement of Tamils commenced in 1983, due to violence unleashed against them, the T.U.L.F won the elections in every district in the North – East Jaffna, Mannar, Vavuniya, Mullaithivu, Trincomalee and Batticaloa, other than Amparai. Since the formation of the Sri Lanka Muslim Congress the S.L.M.C has received substantial support of the Muslim people.

The electoral verdicts delivered in the North – East have consistently supported a North – Eastern Tamil linguistic region. This has been the corner stone of any peaceful political resolution of the Tamil question. This is the accepted position of all Tamil political parties.

Even the Bandaranaike – Chelvanayakam pact of 1957, contemplated the concept of a Tamil linguistic region. If the Bandaranaike – Chelvanayakam pact was implemented, a Tamil linguistic region would have become a reality in 1957. This is intertwined with the dignity, personal security, and well being of the Tamil speaking people. A compromise on this fundamental position will endanger the dignity, the security, and well being of the Tamil speaking people particularly in the Eastern province. The Tamil struggle in the past 50 years has been primarily to safeguard the interests of the Tamil speaking people in the Eastern province, who faced the danger of being devoured by Sinhala colonization, in violation of the Bandaranaike – Chelvanayakam pact of 1957, and the Dudley Senanayake – Chelvanayakam pact of 1965, which were intended to terminate Sinhala colonization but which were not implemented and colonization continued. The Indo – Sri Lanka agreement recognized this reality. Any effort to subvert the acceptance of that reality would destroy all prospects of peaceful resolution.

Tamil civilians in the Eastern province, are presently being specifically targeted through violence to weaken the Tamil people. The majority of those who have been displaced, amounting to over two hundred and fifty thousand in 2006, and those who have fled from the country to Tamil Nadu in South India also in 2006, amounting to over sixteen thousand, are from the Eastern province.

It is the failure of successive Governments to respect the democratic verdicts of the Tamil people that has resulted in the conflict. It cannot be forgotten that in this country, only Tamils were victims of violence till about the late 70’s and early 1980’s. For over three decades the Tamils were engaged in a peaceful non – violent democratic struggle but did not achieve anything. This is a fact that cannot be denied. The conflict cannot be resolved by subterfuge and devious deceptive processes; such action would only aggravate the conflict.

If Governments can be established and Governments can be changed on the basis of the Sinhala vote in the country, most parts are Sinhala majority areas, why should not the Tamil speaking vote, determine the right to governance in the Tamil linguistic area in some adequate and durable way,. The North and East are unquestionably predominantly Tamil speaking contiguous areas. Every district in the North and the East has a Tamil speaking majority. The cause of the conflict not coming to an end, has been the refusal to recognize this reality.

We would urge the Government to adopt a just and reasonable approach to resolve the National question, in a manner acceptable to the Tamil speaking people of the North – East. Efforts to destroy the Tamil struggle through military action against the Tamil people, or to destroy Tamil solidarity through subversion and intrigue will inevitably fail