NOTICE OF IMPENDING ACTION
KAPILA GAMAGE BA Spl
Attorney-at-Law,Notary Public
Commissioner for Oaths and Registered Company Secretary
No.24A, 2nd Lane, Pethiyagoda, Kelaniya, Sri Lanka
gamage_kapila@yahoo.com +9477 327 327 5
20th December 2015
Dr. Senarath Dissanayake
Director-General of Archaeology
Department of Archaeology
Sir Marcus Fernando Mawatha
Colombo 7
Sir,
NOTICE OF IMPENDING ACTION
I am instructed by my client, Jayantha Samaraweera-Member of Parliament of Maawala, Waadduwa, to inform you of the following matters.
1. On 5 November 2015, the Northern Provincial Council adopted a resolution calling for changing the name “Nagadeepa” to “Nainativu.”
The relevant passage says:
“By gazette extraordinary 1928/26 (2015-8-21) two wards falling within the Valanai Pradeshiya Sabha have been named as follows: P34 Nagadeepa (North), P35 Nagadeepa (North) and P36 Nagadeepa (South). Meanwhile, the 2015-census has mentioned Nainativu (North) Nainativu (Central) and Nainativu (South). Tamil people have from historical times to the present called the island Nainativu. Also, according to all records and documents the word Nainativu has been used for the said area. Therefore, this Council resolves to request the President and also the Minister of Local Government to take immediate steps in relation to the gazette titled Nagadeepa, and to change the name Nagadeepa to Nainativu.”
– I attach herewith a copy of the said resolution in Tamil, and a Sinhala translation, with the relevant passage marked in red, for your convenience.
2. The said resolution was sent to the Presidential Secretariat, along with the Ministry of Local Government, with the request that the name-change be officially approved by publication in the gazette. The request has not been granted this time.
3. My client considers that the aforesaid resolution is the latest in a series of acts (including a resolution adopted in February of this year claiming that Tamils in this country have been subjected to genocide) designed to establish the background conditions for an invocation of the right to self determination under international law, and thereby to get the international community to support or endorse the creation within this country of a separate state for Tamils.
4. It is generally recognized in international jurisprudence that the right to self determination under international law exists under three conditions: one, where a people are subjected to colonial occupation, two, where a people are subject to alien subjugation and domination, and three, possibly where a people have been deprived of their rights and liberties to a degree that they cannot participate in a meaningful way in the social and political life of their country. (See, Reference re Secession of Quebec (1998) 2 S. C. R. 217, paragraph 154)
5. Of the above three conditions, the first and the third do not apply to the Tamils in Sri Lanka: the Tamils here are not under formal colonial occupation, neither are they deprived of their rights and liberties to a degree where they cannot participate in a meaningful way in the social and political life of the country (as amply demonstrated for instance in their voting in record numbers in the recent elections)
6. Therefore, the only option left is to argue for the second condition, i. e. alien subjugation and domination, in this case the ‘aliens’ being the Sinhalese. This is where the claims of Tamil genocide become important, because, if Tamils have been subjected to genocide, that establishes, ipso facto, subjugation and domination.
7. Logic suggests that, in order to claim self determination for purposes of affecting a secession under the second condition, an implied condition must also be satisfied, namely, if there is more than one ethnic group claiming moral and historical rights to the area of land that is proposed as a separate state, one has to show that one’s moral and historical rights to that particular plot of land are better, in some way or another, than that of the other groups.
8. If it can be shown that the other groups either don’t have a historical presence in the area in question, or a minimal one compared to the group planning a secession, it would obviously go a long way towards satisfying the above-mentioned implied condition.
9. It is precisely in this context that my client sees the Northern Provincial Council’s resolution regarding Nagadeepa: if it is accepted that the historically valid name for the area is Nainateevu, indicating that it is historically an area of Tamil settlement, (whereas the Sinhala name Nagadeepa, if accurate, indicates the area may have historically been an area of Sinhala settlement) it would be powerful evidence, especially in front of the international community, for a claim by the Tamils that they have special historical and moral rights to that area, not shared by the Sinhalese.
10. The Antiquities Ordinance of 1940 and its Amendments, particularly Act No. 24 of 1998, provide the legal basis for your Office, and the said Act No. 24 of 1998 defines your functions as, inter alia:
a. To inventorize the archaeological heritage of Sri Lanka.
b. To protect and maintain such archaeological heritage.
c. To conduct archaeological impact assessments of areas that may be affected by development, industrial or other projects by the Government or any person and implement any mitigatory measures that may be required.
11. My client considers that where an attempt is made to change the name of a certain place, if that place is historically associated with a different name, which in turn is associated with the presence, or activities, of a particular cultural, linguistic or religious group, protecting and maintaining that historical name is an integral part of protecting and maintaining the archaeological heritage of Sri Lanka.
12. My client further notes that, the idea expressed in point ‘3’ in paragraph 10 above is directly pertinent in the instant case, because an attempt to change the name of a particular place, if that place has been historically associated with a different name, significant for what it indicates about the presence and activities of a particular cultural, linguistic or religious group, qualifies as a “project” that calls for an “impact assessment” and recommendations for “mitigatory measures” if any are required.
13. My client also states that after due inquiry, he has found that the last Annual Report (Administrative Report) published by your Department was in 2010, and that was the annual report for the year 1998. Such Annual Reports provide a compendium of the Departments work, including findings, for that year, and is the best means for the public to know of such findings.
14. My client also notes that, for over 30 years starting in the early 80’s the LTTE maintained a de facto State in large parts of the North and East, and it was not until May 2009, with the complete destruction of the LTTE, that these areas were accessible to people from the South. It is reasonable to presume this applies to personnel from your Department also. Therefore, there must be a wealth of new findings in these areas since 2009, about which the public has absolutely no idea.
15. On account of the matters set out herein before, and given the grave danger mentioned in paragraphs 3-8, my client requests that you fulfill your statutory obligations under section 10 of Act No. 24 of 1998, and take all measures to protect and maintain the archaeological heritage of the Northern Province, particularly the Jaffna Peninsula and its environs, and take all necessary steps to make known to the public the latest findings, along with the ongoing as well as proposed work of your Department with respect to the said area.
16. My client considers that a comprehensive report of the latest archaeological findings and other relevant information on the Northern Province, especially the Jaffna Peninsula and its environs, would be helpful to citizens of this country, particularly the Sinhalese, who fear that an attempt is being made to obliterate or deny the presence of the Sinhalese in the Northern Province, including the Jaffna Peninsula, since time immemorial.
17. Conversely, such a report, if it shows archaeological or other evidence of significant Tamil settlement in the Jaffna Peninsula since historical times (and indeed it is possible such evidence has been uncovered in the last few years) would be invaluable for those factions amongst the Tamils, such as it appears the persons in the Northern Provincial Council, who wish to assert that the Jaffna Peninsula and its environs are historically associated with Tamil settlement, some factual basis for their claims.
18. I am further instructed to inform you that if my client does not receive a reply to this communication within 2 (two) weeks from the date of mailing, he will file for a writ of mandamus to compel you to take the necessary action.
I shall thank you in advance for your prompt attention to this matter,
Registered Attorney for
Mr. Jayantha Samaraweera-Member of Parliament
Copies to:
1. His Excellency Mr. Mithripala Sirisena, President
2. Hon. Faiszer Musthapha, Minister of Local Government and Provincial Councils
3. Mr. A. Pathinathan, Chief Secretary, Northern Provincial Council
4. Hon. C. V. Wigneswaran, Chief Minister, Northern provincial Council
5. Hon. H. M. G. S. Palihakkara, Governor, Northern Province
6. Hon. Attorney General
