The way forward in Sri Lanka

Territorialising rights suggests that rights are a zero-sum game: since the territory of Sri Lanka is finite, more of it for one community means less for another. This is why Sinhala extremists have been able to convince some moderates that recognising ‘minority rights’ means giving up part of what they legitimately see as their country. For Tamils, surely, it is the opposite: defining only the North and East as ‘traditional Tamil homelands’ entails giving up a large part of what they can legitimately claim as their country: the whole of Sri Lanka. So what is the solution?
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By Rohini Hensman

(July 30, Colombo, Sri Lanka Guardian) The way forward in Sri Lanka involves demilitarisation, restoration of the rule of law, and democratisation. These are interlinked so closely that it is impossible to separate them, and on their fulfilment depends not only the political future of Sri Lanka, but also its economic survival.

The Fate of Internally Displaced People

Perhaps the most urgent issue is the fate of internally displaced people (IDPs), especially the Vanni civilians who were displaced in the last stages of the war. Reports of conditions in the camps where they have been interned vary; but the central issue is not the conditions under which they are being detained, but the very fact of their detention. Various spurious arguments justifying it have been put forward by the government and its supporters, none of which hold water. The fact that in many cases their homes have been destroyed and the areas from which they come have been land-mined by the Liberation Tigers of Tamil Eelam (LTTE) would certainly suggest that the government should offer them shelter until they can return safely, but that is very different from forcibly preventing them from leaving the camps, even if they have homes or relatives elsewhere. Indeed, one family has filed a fundamental rights petition before the Supreme Court, arguing that it is unconstitutional to detain them thus. The Supreme Court has allowed the reunification of this family within one of the camps, but the larger issue of the violation of fundamental rights still remains unaddressed.

Another argument is that LTTE cadres are hiding amongst the civilians, and therefore a process of screening needs to take place before they are released. This might have been plausible if there had been a steady stream of civilians being released as they were screened and cleared, but so far, only senior citizens have been released – that, too, after a court ruled that large numbers of elderly people were dying of dehydration and malnutrition. The plea by Tamil United Liberation Front (TULF) leader Anandasangaree on behalf of a one-year-old child whose release had been refused by the authorities makes nonsense of the security argument: are we really to believe that it takes more than two months to ascertain whether or not infants are LTTE cadres who pose a threat to security? A report by the International Center for Strategic Defense that inmates can secure their release by bribing the military authorities running the camps 1-3 lakh rupees makes the ‘security’ claim even more farcical, and suggests that these hapless people are being held for ransom – unless, indeed, the purpose is even more sinister.

In fact, while the last batch of displaced people has now been interned for over two months, earlier batches have been deprived of their liberty for much longer. If this situation continues, it will become a Crime against Humanity as defined by the International Criminal Court (ICC), since it involves ‘severe deprivation of physical liberty’ and ‘severe deprivation of fundamental rights’ of a civilian population. With each passing day, the government’s claim that the assault on the LTTE’s last bastion was launched in order to free the civilians held hostage there looks less plausible, and the allegation that the real purpose was to effect a transfer of population – also defined as a crime against humanity by the ICC – looks more likely. It is an irony that a government that has gone to great lengths to refute the charge of war crimes should open itself up to the more serious charge of crimes against humanity, this time requiring no investigations since they are being committed in front of the whole world! Foreign governments and aid agencies involved in providing for the Vanni IDPs are understandably getting anxious about continuing to contribute to the illegal detention of innocent civilians.

The immediate release of displaced persons who have been interned, and speedy resettlement of all displaced people, including the Muslims ethnically cleansed from the North by the LTTE in 1990, must be part of any post-war programme, and foreign governments and aid agencies should insist on these as conditions for assisting the government of Sri Lanka in relief, reconstruction and redevelopment. Access to the camps and registration by the ICRC and/or UN of all inmates, both of IDP camps and detention camps where LTTE cadres are being held, is also necessary, in views of reports that abductions and disappearances have been taking place.

Demilitarisation and Restoration of the Rule of Law

In the latter stages of the conflict, the military was doubled to around 200,000 personnel, and one would imagine that with the defeat of the LTTE and end of the war it would be halved to its original size, with the demobilised soldiers being re-employed in civilian tasks like the reconstruction that so urgently needs to be done. Instead, there have been proposals that it be expanded by another 100,000. This proposal should cause concern not just to minorities, but also to the majority of Sinhalese citizens, because against whom would this enormous military be used, now that the LTTE is no more? And who would pay for it? Since IMF loans normally do not have have political conditions, it is likely that the reason why a projected loan still has not been approved is the fear that an already heavily indebted government would not be able to pay it back if it embarks on such a huge military spending spree. If the cost of military expansion is borne by the public, which is expecting living conditions to improve with the end of the war, there is likely to be protest in the South. Perhaps that is the expectation.

The government speaks with two tongues when it talks about the LTTE. On one side, it claims that the LTTE has been completely defeated and the war is over: the huge popularity of President Rajapaksa is premised on this notion, as are the celebrations that accompanied the announcement. Yet government policies, including an increase in military spending and the continued incarceration of hundreds of thousands of displaced civilians, can only be justified on the assumption that the LTTE is still a potent threat. Again, paramilitaries kept by Tamil parties like the Eelam People’s Democratic Party (EPDP) were earlier justified by their need to defend themselves from LTTE assassins, but this excuse no longer holds. They should be disarmed immediately.

The LTTE’s war machine has been destroyed, and its leadership, including its supreme leader Prabakaran, killed; there is no chance that it can be revived in the near future. Desperate attempts by the pro-LTTE Tamil diaspora to foster the illusion that it is still alive have more to do with their claims on LTTE financial assets than with anything going on within Sri Lanka. The proposal for increased militarisation is based on a Sinhala nationalist view of the conflict, which sees it solely as a problem of terrorism and separatism. Why this terrorism and separatism arose is left unexplained, because the Sinhala nationalist narrative conveniently leaves out all the discrimination, persecution and violence directed at Tamils prior to the outbreak of the war; if the pogroms of 1983 are reluctantly admitted to have taken place, the official death toll resulting from them is cited: 300-400 as opposed to 2000-3000, which is the unofficial death toll. Hence, they argue, the way to prevent similar problems aising in the future is to militarise society even more, and keep in place the draconian Prevention of Terrorism Act (PTA) and Emergency Regulations, which allow state actors to violate human and democratic rights with impunity. The horrible paradox is that if the real precursors to the war are recognised, it becomes evident that violation of the human and democratic rights of Tamils and militarisation are precisely what led to it! In other words, what are seen as measures to avert future terrorism and separatism could become catalysts of these very problems.

Furthermore, the destruction of the rule of law wrought by decades of the PTA and Emergency Regulations affects all sections of society in all parts of the country. A bizarre example is the public boast by Labour Minister Mervyn Silva, already infamous for his assaults on mediapersons in the state TV channel Rupavahini, that he was responsible for the murder of journalist Lasantha Wickrematunga and the brutal assault on Poddala Jayantha, general secretary of the Sri Lanka Working Journalists’ Association. That a minister close to the president can preside over a mafia with such impunity speaks volumes about the lawlessness prevailing in Sri Lanka. The Asian Human Rights Commission reports that other ruling party politicians too run criminal gangs that terrorise the South, while the kidnapping of little girls for ransom in the East, and their subsequent murder, is blamed on one of the state-linked Tamil paramilitaries.

A particularly disturbing development is the branding of lawyers defending the publishers of the Sunday Leader in a case filed by the Defence Secretary as ‘traitors’ on the Defence Ministry website, a clear instigation of physical attacks on them by state-linked stormtroopers. One is reminded of the reign of terror in the late 1980s, when anyone who criticised the state was designated a JVP (Janatha Vimukthi Peramuna) member or supporter and therefore worthy of death, while lawyers who defended them were tortured and killed. Unless civil society in Sri Lanka wakes up to the danger and takes action to avert it, there is every likelihood that there could be a repetition of that nightmare.

Democratic Rights and the Executive Presidency

This brings us to the issue of freedom of expression, a sine qua non of democracy. The International Federation of Journalists has called on the government to ‘Stop the War on Journalists’, and this is surely an apt expression when the numerous cases of detention, imprisonment, assault, torture and murder of journalists are considered, while several others have been forced into exile in order to escape a similar fate. According to this professional organisation, Sri Lanka has long been considered one of the most dangerous countries in the world for journalists. This situation continues unabated even after the annihilation of the LTTE, which was also renowned for its denial of freedom of expression. The modus operandi of the state is in fact a mirror image of the LTTE’s crushing of dissent: those who disagree with the powers-that-be are in danger of being labelled ‘pro-LTTE’ and ‘traitors’, and thereafter subjected to arrest and detention, abduction and assault or murder by state-linked criminal gangs. This has been the fate even of people who have all along been vociferous in their criticisms of the LTTE!

It is worth pointing out that this is not just a denial of the right to freedom of expression of mediapersons, but also of the right to information of the public. As of now, the clampdown on freedom of expression is not yet complete, but if it progresses further, the public will be fed only the state’s version of what is happening in the country, and kept ignorant of developments detrimental to their own interests. The revival in June 2009 of the draconian 1973 Press Council Act, designed to protect government privilege rather than the public’s right to information, and opposed by Mahinda Rajapaksa himself while he was in the opposition, is one more step in this direction.

The use of the same criminal gangs against lawyers and opposition politicians undermines the independence of the judiciary and the right to free and fair elections. But these institutions are also undermined by the existence of the Executive Presidency. The absolute power held by this individual trumps the rights of everyone else, and makes a mockery of democracy. This is illustrated by the fate of the 17th Amendment. Passed during Chandrika Kumaratunga’s presidency in a rare moment of unanimity in 2001, the 17th Amendment to the Constitution attempts to curtail the power of the Executive President by appointing a Constitutional Council with representation from all parties in parliament, which in turn would select chairpersons and members to the Election Commission, Public Service Commission, National Police Commission, Human Rights Commission, Bribery and Corruption Commission, Finance Commission and Delimitation Commission; its approval was also mandatory for appointments to the offices of the Chief Justice and Judges of the Supreme Court, the President and Judges of the Court of Appeal, members of the Judicial Service Commission other than the chairperson, the Attorney-General, Auditor-General, Inspector-General of Police, Ombudsman and Secretary-General of Parliament. The aim was to ensure the independence of these institutions.

However, as the terms of these appointees came to an end during the presidency of Mahinda Rajapaksa, he started making appointments without consulting the Constitutional Council, which itself finally became defunct as the government failed to appoint a new one. This occurred despite a determined campaign by civil society organisations, spearheaded by the Organisation of Professional Associations. The consequences were disastrous for the justice system, human rights, the fight against organised crime, free and fair elections, and attempts to curb nepotism and corruption.

This whole sequence shows that any attempts to curtail the absolute power of the Executive President which depend on the concurrence of the individual in this position are pointless; neither democracy nor good governance can be ensured unless and until the post is abolished.

Equality and Democracy versus Ethnic Nationalism

The constitutional amendment that is most often cited as being crucial to a political solution of the ethnic conflict is the 13th Amendment, enacted in 1987 in the wake of the Indo-Lanka Accord. The provisions of this can be summed up as (a) granting parity of status to Tamil as an official language alongside Sinhala, and (b) granting devolution of power to Provincial Councils. The former, of course, was promised even prior to Independence: a long-overdue measure which could, if implemented, ensure a much greater degree of equality to Tamils. But it is the latter that is normally given more prominence.

At the time of the Accord, devolution was seen as satisfying the aspirations of the Tamil minority by granting Tamils a degree of self-government in the Tamil-majority Northeastern province which was created by the merger of the Northern and Eastern Provinces (now de-merged again). The arguments in favour of it need careful scrutiny, however. Do they suggest that Tamils in the North and East would have rights that Tamils in other parts of the country would not? Or that Sinhalese would have rights in the rest of the country which they would not have in the Northeast? What about Muslims and smaller minorities: lacking any territory, would they be deprived of self-determination?

The linking of territory to ethnicity, religion or language is always dangerous, and in Sri Lanka especially so. The fundamental argument of Sinhala nationalism is that the Sinhalese, as the majority in Sri Lanka as a whole, should have rights and privileges denied to people of other communities. Does the argument for devolution or self-determination implicitly accept this reasoning? For the LTTE, clearly, it did. For example, self-determination meant butchering Muslims in the East and ethnically cleansing them from the North. In the course of my interviews with internally displaced people in 1990, displaced Muslims told me their Tamil neighbours had wept when they were being evicted, but were unable to persuade the LTTE to allow them to stay. I came across three Tamil women in one Tamil camp whose Sinhalese husbands had been killed by the LTTE; they were petrified that their little bilingual children would say something in Sinhala and give themselves away. In a Sinhalese camp was a Sinhalese man who had managed to escape, who revealed, in hushed tones, that his wife, who was in the camp with him, was Tamil. In a country where people from different communities have lived in mixed neighbourhoods and mixed families from time immemorial, linking a particular community to a particular territory necessarily entails terrible violence, crimes against humanity, and the prohibition of genuine love and friendship, which recognise no communal barriers.

Territorialising rights suggests that rights are a zero-sum game: since the territory of Sri Lanka is finite, more of it for one community means less for another. This is why Sinhala extremists have been able to convince some moderates that recognising ‘minority rights’ means giving up part of what they legitimately see as their country. For Tamils, surely, it is the opposite: defining only the North and East as ‘traditional Tamil homelands’ entails giving up a large part of what they can legitimately claim as their country: the whole of Sri Lanka. So what is the solution?

Relentlessly insisting on equality, the bedrock of democracy, would disarm the Sinhala chauvinists, because it could be pointed out that the minorities are simply asking for equality before the law and equal protection of the law, equal rights and opportunities, and not demanding that anything be taken away from the Sinhalese. Sri Lanka does not have the same language problems as India, since there are only three national languages, Sinhala, Tamil and English. In India, children routinely learn three languages at school, and children in Sri Lanka could easily do the same; indeed, some have already begun to do so, and if the effort is continued and expanded, the next generation would not have the same linguistic problems as this one. In the meantime, it would be necessary to recruit Tamil-speaking people and interpreters to all government offices, police stations, courts, army outposts, and so on, so that parity for Tamil can be implemented properly. If all children could be educated in the medium of their choice and all citizens could communicate with the state in the national language of their choice, practice the religion of their choice in the way they choose or practice no religion if they so choose, and develop their culture individually and collectively in all parts of the island, there would be no need to make special provisions for Tamil-majority provinces.

Even the demand for devolution needs to be reframed as a demand for democratisation that brings government closer to all the people, not just minorities, apart from being made far stronger than the 13th Amendment, which has loopholes allowing the Centre to take back the devolved powers. Along with the demand for abolition of the Executive Presidency, and further devolution to smaller units, it would give all the people of Sri Lanka more control over their lives, instead of having their lives ruled by a remote power in Colombo that knows little and cares less about their needs. Admittedly, the history of Sri Lanka from Independence has been one of oppression of minorities, and while some wrongs have been righted (e.g., disenfranchisement of the plantation workers, discrimination against Tamil by law and constitution), new injustices have arisen, foremost among which is the denial of liberty to the Vanni IDPs. Therefore some mechanism to guard against such injustices would be advisable, and this can partly be achieved by giving minorities more power at the Centre through a Second Chamber.

However, the best safeguard for the equal rights of minorities would be the understanding throughout society that democracy is not a zero-sum game, but the very opposite. As Pastor Niemoller wrote in the poem quoted by Lasantha Wickrematunga in his last article, published posthumously, if we don’t stand up for others when they are under attack, then there will be no one to stand up for us when we are attcked. In other words, by defending democracy for others, one is defending democracy for oneself. All but the oppressors have an interest in maximising democracy, and solidarity between different sections of the oppressed (including women, workers and the rural poor, as well as minority communities) is essential if the struggle for it is to be won in Sri Lanka.

Rohini Hensman is an an idependent scholar, writer and activist based in India and Sri Lanka. Rohini can be reached at: rohinihensman@yahoo.co.uk.

-Sri Lanka Guardian