India arm-twisting President Anura Kumara – Special treatment ONLY to Upcountry Tamils, violating Sri Lanka’s Constitution

The Upcountry Charter

Several questions emerge as a result of the Extraordinary Gazette 2403/28 published on 25 September 2024 – just days after the appointment of a new President.

• Why an “Extraordinary Gazette”
• Why an “Upcountry CHARTER”
• How constitutional is this gazette?
• Does it pose a threat to the unitary structure of the State?

Violation of “EQUALITY” as clearly laid out in the Constitution of Sri Lanka.

• Why does this Charter recognize ONLY Plantation Community as contributing to
• Sri Lanka’s economy?
• As far as history records Indentured Indian Labor were brought by colonials to
• work on plantations owned by colonials. If anyone should be addressing historic injustices to this community it should be the colonials.
• As citizens of Sri Lanka, the plantation community is not denied any constitutional rights or privileges enjoyed by all citizens of Sri Lanka. However, if they are working on private estates it is these private entities that must be held responsible for any shortcomings accrued to them for the work they get out of them. The Labor Dept must be tasked to ensure all private companies honor the labor laws applicable to the plantation workers which includes statutory payments. All private sector employees fall under Shop & Office Act or Industrial Laws & if there are plantation laws – these need to be amended to address the shortcomings by the owners of the plantations.
• The State does not require to violation the “EQUALITY” clause in the constitution & bestow special privileges to this community ONLY denying or disregarding the rights of all other communities & any historical injustices they have been denied as result of 443 years of colonial rule. If such is the case the Government requires to take the Crown Land Ordinance & rectify the injustices to the Sinhala landed gentry whose lands were all taken by the colonials enforcing their laws without any international legal standards being applied.
• It is morally & constitutionally wrong for the State to draft CHARTERS recognizing the economic, cultural & social traditions of only one community especially since these are well-acknowledged traits that leverage to seeking self-determination. Whatever heritage they possess was what was transported after colonials brought them from South India to work on colonial plantations in the 18^th & 19^th The State cannot acknowledge to one community especially one that which was brought from foreign shores for foreign benefit only. Nothing in the constitution cannot violate supreme place afforded under Article 9 of the Constitution.
• Acknowledging “unique identity” is asking for trouble similar to the reckless inclusion in the Indo-Lanka Accord about North & East being “traditional homeland” of the Tamil speaking people. Inclusion by acknowledging a community’s “distinct” difference is going to be paving the path to trouble.
• Again the GoSL is violating the EQUALITY clause by assuring to give a plot of land to every plantation worker family (giving state land outright ownership) when there are many citizens across Sri Lanka who do not have any plot of land of their own. How can a government give state land to only one community & on what basis? Any dignity that is due to the plantations workers must be sought legally from the colonials as African communities have done (ex Mau Mau of Kenya)
• With India influencing the plantation workers imagine when freehold land is given & the entire area comes under direct Indian influence – what will this do to Sri Lanka’s sovereignty? Land is held in trust by the State, owning land is not a fundamental right & the Government as custodian has no right to be dishing land for political purposes or as a result of diplomatic arm-twisting.
• All citizens of Sri Lanka enjoy free health care – where is there any constitutional or legal provision denying health care access to plantation workers? If workers are undergoing any issues, these issues must be addressed by the private companies that employ the workers & employees can take up grievances with the labor dept who must address them. There is no requirement for any extraordinary gazettes or special Charters for simple solutions requiring administrative actions.
• The Govt cannot segregate only one segment of women & deny other communities of women equality. This is a violation of the constitution & an injustice to all women in Sri Lanka.

Why should the Malaiyaha Tamils from India be treated above the rest of the citizens of Sri Lanka? The Sri Lankan state didn’t bring them to Sri Lanka – it was the colonials. If justice or injustice is the issue – they must take it up with the colonials who brought them by force to Sri Lanka. The Kenyans took the British to courts & even won their case! These Malaiyaha’s should do the same. They were brought to work TEMPORARILY. They were not brought to be domiciled but to get the work done & to be returned.

The Tamil politicians will not admit but there was a time that the Indian Tamils were far more than the so-called “Ceylon Tamils” a name coined only in 1911. Thus, the Ceylon Tamils who comprised Vellala Tamils regarded the Plantation Tamils as the lowest of castes & they still do.

If Plantation Tamils were only brought to work TEMPORARILY the question of failure in repatriation emerges. Two such efforts were made. First in 1964 with the Srima-Shastri Pact & then in 1974 with the Srima-Gandhi Pact. Let us also note that even the Indo-Lanka Accord 2.16 d) “The Government of India will expedite repatriation from Sri Lanka of Indian citizens to India who are resident here…” – which was never done.

Instead India has been using these plantations as a buffer for geopolitical advantage and political arm-twisting while using their votes to either bring governments to power or remove governments from power. A call from across the Palk Strait is enough for these workers to be told who to vote. When the Indian PM arrived the manner these workers were swaying the Indian flag clearly identifies where their loyalty lies. Imagine if they are given “unique” & “distinctive” separate identity – language, culture rights all ingredients to demand “self-determination”.

By virtue of this Charter being unconstitutional & denying all citizens & communities “EQUALITY” legal action must be initiated to prevent the Government committing its first hara kiri simply because India wants to quickly get things passed before any surprises happen.

The President & all political parties must foresee the dangers unfolding in particular the manner that India is exerting influence across all realms of society already.

The legal fraternity must come forward to take up this case as their duty to upholding the Constitution & the unitary & sovereignty of Sri Lanka.

Shenali D Waduge