Image courtesy The Telegraph

It is now 4 years after the end of the war. The way we Sri Lankans will remember the end of the war is likely to demonstrate once again how divided we are, as North and South, as Sinhalese and Tamils.

Some Tamil friends in the North told me that they will try to have some events to remember the large numbers who were killed and disappeared, despite the past threats and intimidations. “We will try to have it quietly and low profile way” was what one friend told me. It is unlikely that families of those killed, disappeared, injured, those whose land has been occupied by the military after the war, will be in the mood to celebrate. This of course should not be confused with the fact that they are indeed relieved the war is over – that they don’t need to be in bunkers, duck shells, bombs and shooting, run over dead bodies to save their own lives, try to hide from forced recruitments etc.

On the other hand, the government has announced grand celebrations in Colombo, with the annual “Victory Day Parade”. Based on last three years experiences, there is unlike to be any mourning, grieving or even remembering of Tamil civilians killed, injured through government action – although it’s possible that those killed and who suffered at the hands of the LTTE may be remembered. .

It is also now one and half years after the Presidential Commission on reconciliation (Lessons Learnt and Reconciliation Commission – LLRC) finalized its report and handed it over to the President. In March 2012 and 2013, the UN Human Rights Council in Geneva passed resolutions on Sri Lanka, which the Sri Lankan government bitterly opposed, branding supporters as traitors. The resolutions called on the government to implement LLRC recommendations, address accountability issues and noted the ongoing human rights violations. To me, these are two of the most significant developments after the war and the both Geneva resolutions were linked to the LLRC.

Who went to LLRC and Geneva and why?

I read the LLRC report a couple of times and in 2012, I travelled across the country giving talks in towns and cities to Sinhalese, Tamils and Muslims. And I had chance to listen to and dialogue with diverse and even opposing responses – supporters and skeptics of the LLRC.

But my strongest impression of the LLRC is of the hundreds of people – mostly women – from the North and East who braved threats and intimidations and spent their meager earnings to travel a long way to tell their story to the LLRC. They were mostly mothers and wives of persons who had either disappeared or been detained. Many came clutching photos of their loved ones the came to give testimony about. There were also those who had survived the last phase of the bloody war in bunkers and running over dead bodies, had seen their family members and neighbors killed, children recruited and houses reduced to rubble. There were also those who told stories of not being able to go home as their houses and lands were occupied by the military. Many of them cried – while giving their testimony, while listening to others, when they were denied the chance to give their own testimony or were stopped abruptly by Commissioners.

Likewise, my strongest impressions from UN Human Rights Council sessions in Geneva last March are of a group of Sri Lankans who went there separately. One was a Tamil doctor, Dr. Manoharan from Trincomalee, whose son was murdered on the beach in January 2006. Another was Mrs. Sandya Ekneligoda, a mother of two teenaged boys and husband of journalist and cartoonist Prageeth Ekneligoda, who disappeared in January 2010. With her was Sithi, the mother of a Muslim boy who disappeared in Colombo. Sisters and brother of murdered government MP and politician Bharatha Lakshman Premachandra were also in Geneva telling their story.

What made them all go to the LLRC and to Geneva? To discredit the government? Earn dollars? Unlikely, as they all had bigger problems – very serious ones – about their beloved family members who had been killed or disappeared. For how many of us will discrediting the government and earning dollars be the priority if our own husbands, sons, brothers and sisters have been killed or disappeared?

I suspect they went to Geneva because despite all their efforts for many years, they had not been able to find answers and justice in Sri Lanka. Through Courts and institutions such as Police, Human Rights Commission and various Presidential Commissions of Inquiries. And they are amongst the thousands, perhaps tens of thousands, of Sri Lankan families who seek acknowledgment, truth and justice.

It may also be pertinent to note that in May 2009, a resolution was passed at the UN Human Rights Council that was essentially drafted by the government of Sri Lanka or those supporting it, and in favor of the government. However, since then, countries such as India, Korea, Africa and most in Latin America, have voted against the government of Sri Lanka in the subsequent resolutions in 2012 and 2013. While the language of 2012 and 2013 resolutions are very mild in relation to the ground situation, the language has become slightly stronger and critical from 2009 to 2012 and 2013. The number of countries voting against the government of Sri Lanka doubled from 2009 to 2012 and further increased in 2013.

Ground situation after war – amidst the LLRC and Geneva resolutions

Even as the UN Human Rights Council sessions in Geneva were going in March 2013 and the resolution was being negotiated, in Vavunia, in Northern Sri Lanka, the government stopped hundreds of families of disappeared persons from going to Colombo for a peaceful protest. In Colombo, a human rights lawyer was threatened.

In the two months since the Geneva resolution of 2013, a meeting of the opposition Tamil National Alliance was attacked in Killinochi and the popular northern Tamil daily newspaper, Uthayan was attacked twice in April. Businesses of Muslims were attacked. A peaceful vigil I attended in Colombo was dispersed by Police who had also threatened and arrested some of the participants.

What has been happening in the last four years after the war finished?

Positively, I remember few political prisoners being released, some people displaced people were able to go back to their own villages, fisherfolk and farmers had restarted activities. I had seen some roads in the Vanni becoming better and electricity to some areas which had never seen electricity. And some new buildings have come up in the war ravaged Northern Province, such as hospitals, schools, government offices, markets, telecommunication, banks etc.

There is less fear of being caught up in a suicide bombing, of being stopped at check points, round ups and arrests. But I have also have met who continue to live in fear – women in North who live in fear of sexual abuse. Journalists and human rights activists fear assassinations, abductions, long and repeated questioning by intelligence agencies and arrest. Those arrested for any reason fear being tortured. Religious minorities fear their traditional practices maybe curtailed and places of worship, businesses attacked. Citizens fear that the military may occupy their traditional and legally owned land. Judges, lawyers and religious clergy live in fear, due to their criticism of the government. These fears are not imaginary – very much real in the last four years after the war.

Overall, my experiences have been negative – many emails, sms messages calls I get gives me little hope to be optimistic about reconciliation, human rights and freedom. People I regularly encountered – Tamils, Sinhalese and Muslims – from all parts of the country – includes families searching for loved ones who had disappeared. Families searching for justice for loved ones killed (during war, during protests, inside prison etc.). Political prisoners and their families awaiting release or just and speedy trials. People whose land is occupied by the military. Lonely, frustrated and anxious refugees, who now live overseas after having fled in fear of their lives, leaving behind their children, wives and parents. Asylum seekers who had been deported back and detained and tortured on return. Those seeking decent houses, livelihoods, better healthcare and educational facilities. Those who would like to commemorate loved ones who had been killed and have funerals without interference of police and military. There are more.

These are amongst the Sri Lankans searching for the meaning of reconciliation, four years after the end of the war.

At a broader level, in the last four years, in presidential, parliamentary, provincial and local government bodies, the government won comprehensively in most parts of the country. But in the Tamil majority North, including the areas which saw the bloodiest last five months of the war, the government suffered heavy defeats – despite claims of having liberated the Tamils and treating them so wonderfully in the last four years. The 18^th amendment to the constitution was passed in parliament, strengthening the executive presidency by allowing the President to stay in office any number of times and taking away the independence of statutory oversight institutions established under the 17^th amendment. Militarization of the country – particularly the North – continues unabated with the military making decisions related to relief, development and running restaurants, shops, resorts, boat services etc. and also interfering in the field of education and sports. The once respected Civil service and Foreign Service are also militarized. Retired military officers are getting posted overseas as diplomats and occupy the posts of district secretary and provincial governor – some of them being suspected to have been involved in serious abuses of human rights and war crimes.

There is no serious and genuine attempt to seek a political solution to the ethnic conflict, to address root causes for the war. This government continues the deliberate violation of constitution by not implementing the 13^th amendment to the constitution, which offers the barest minimum of devolution of powers. Instead, the family rule has been consolidated – with the President appointing his brothers to power positions of the Secretary to the Ministry of Defense and Minister of Economic Development. Another brother is the speaker in the parliament and the President’s son is also a member of parliament. Several other relatives hold positions in provincial government, diplomatic missions and government corporations.

Impunity

In the face of all so many past and ongoing violations of human rights, impunity reigns supreme.

The police have often stood by watched violent and illegal acts by those suspected to be government supporters, not arresting and pursuing the prosecution of suspects, even when suspects have been handed over to them and there is clear evidence indicating who is responsible for violations and violence. On many occasions, the police themselves are responsible for atrocities.

On several occasions, when I called the hotline of the National Human Rights Commission (NHRC) on urgent matters like disappeared human rights activists, peaceful protests being dispersed, they refused to take prompt action. The NHRC has also failed to condemn, address and take public positions on many of the incidents and trends described above above despite widespread availability of information and numerous complaints. They have even failed to show solidarity with victims, their families and human rights activists, and ignored numerous recommendations and appeals from human rights activists, despite claiming to be engaging with human rights activists.

Courts in Sri Lanka have also not been able to respond to the crisis or have been painstaking slow to the extent of being irrelevant – a good example being the way habeas corpus cases are delayed despite being matters of life and death.

Indeed, seeking remedies through these institutions has become a burden to victims, their families, genuinely committed lawyers and those supporting them. Many times, I have experienced, witnessed and have been told how complainants have been harassed, discredited and even threatened by these very institutions when they seek to complaint and seek redress and justice.

LLRC recommendations

All the above also indicate the government’s utter contempt for it’s own reconciliation commission’s recommendations. The LLRC advocated singing the national anthem in two languages, but this was flouted even in significant national events like the celebration of independence from British. One and half years after the LLRC’s final report was handed over to the President, no efforts have been made to implement it’s key recommendations such as organizing events to remember victims of the war, appoint a Commissioner to investigate disappearances, appoint an independent advisory committee to monitor those arrested and detained under national security laws, establish an independent institution to address grievances of all citizen, specially minorities, arising out of abuse of power, de-linking the Police from the Ministry of Defense, appointment of an advisory and monitoring body for detainees and publishing a list of detainees. No efforts seem to be made to change existing laws or frame new laws recommended by the LLRC such as to ensure right to information, criminalize disappearances and provide adequate time for judicial review of proposed legislature.

After much campaigning and pressure, the Sinhalese and Tamil versions of the LLRC’s final report has been made available – but hidden away in a government website that’s accessible to only small number of Sri Lankans.

High profile defections from the government

In the above context, it is not surprising that the government seems to have lost of some of it’s high profile defenders and supporters. The first was the former Army Commander Sarath Fonseka who went on to contest Presidential elections against President Rajapakse within months after the end of the war. Former Ambassador and Permanent Representative to the UN in Geneva, Dr. Dayan Jayatilleka is another who is very critical about the government’s post-war conduct, after being a key architect of the pro-government resolution in 2009. His partner in crime to defend the government in the face of international criticism on human rights violations, government MP and Presidential Advisor on Reconciliation, Prof. Rajeewa Wijesinghe too has been critical about the government’s approach towards reconciliation. Even the government ally Sri Lanka Muslim Congress has turned against the government on some issues, such as the recent electricity tariff hikes and it’s leader, who is also the Minister of Justice, has been openly critical of some government actions.

Even the 43^rd Chief Justice, who was impeached early this year, had given decisions favorable to the government during the earlier part of her term, before delivering verdicts that were seen as pro-devolution and against the government. The Bar Association of Sri Lanka, which had backed the government in it’s campaign against the report of the Panel of Experts of the UN Secretary General on accountability, and had been relatively silent in the face breakdown of rule of law in the country, has been openly critical of the government in recent months.

Growing resistance

There has also been growing resistance to these continuing violations and unwillingness of the government to acknowledge and address past violations. Many victims and their families went to the LLRC to tell their story, to seek acknowledgment of truth and justice. Many victims and their families are going to Geneva also to seek justice internationally if it’s not forthcoming nationally.

A good example of this is Sandya Ekneligoda, wife of journalist and cartoonist Prageeth Ekneligoda, who disappeared 2 days before the first major elections after the war. Sandya has gone to police stations, National Human Rights Commission, local Courts, wrote to the President, the First lady, Ministers, MPs, protested on streets of Colombo and worked hard with the few sympathetic journalists to keep alive the Prageeth’s case locally. But she also went to Geneva and elsewhere, to seek international support to seek information about her husband and justice.

As I mentioned at the beginning, despite threats, intimidations and sabotage by the military, some Tamils in the North are getting ready to remember their loved ones even as the government will celebrate and have a Victory Parade in Colombo. When the police tried to block the funeral of young Nimalaruban (killed in prison) being held in his hometown of Vavuniya, his mother took the fight to the Supreme Court to bring his body home and have the funeral in Vavuniya. When Jaffna University Student leaders and dissenting Muslim politician Azath Sally were arrested and detained, there were wide spreads protests in the country (supported by those outside) which led to their release. When Bodu Bala Sena (BBS), a group supported by the Secretary to the Ministry of Defense, was promoting a brand of Buddhism that seemed to marginalize religious minorities and unleashing hate speech towards them, a facebook group calling themselves Buddhists Questioning Bodu Bala Sena challenged their version of Buddhism and even organized a vigil right outside the BBS headquarters (Though the vigil was broken up by the Police, the message was communicated powerfully). Political prisoners protested inside prisons while their families and supporters protested outside. Families of those disappeared continued to agitate and again, even when a major protest by these families was stopped in it’s track by the Police, the message was communicated. Families of LTTE leaders who had surrendered to the army and disappeared filed cases in courts. People whose land is occupied by the military continue their protests and also plan to file more court cases. Lawyers and judges flexed their muscles and showed their condemnation of the attacks on the independence of the judiciary, in courts, on the streets and elsewhere. Journalists continued to demand their rights to write, speak and broadcast as well as justice for past attacks. Most recently, thousands marched in Colombo against electricity tariff hikes.

In early 2012, we also saw Tamil and Muslim activists issuing public statements, acknowledging their failures in the past to empathize with and support other communities who were victimized during decades of war and committing and calling on everyone to work towards justice for all. In the more recent past, a Tamil member of parliament from the leading Tamil party in parliament, the Tamil National Alliance (TNA), admitted that the eviction of Muslims from the North in 1990 by the LTTE, was an act of ethnic cleansing. Prominent MPs in the TNA expressed solidarity with Muslims who had been under attack recently. Muslim and Tamil women in the North have been attempting to dialogue and even issue public statements recognizing each other’s concerns and aspirations. These attempts – even if limited – to look inwards and extend solidarity and work together in a spirit of justice for all, indeed, brings fresh hopes towards reconciliation.

Justice after three decades – Latin America and elsewhere

 And there is also hope internationally. Last week, in two separate emails, I read that a serving General in Uruguay was convicted for 28 years for 1974 murder of an activist and that a former Guatemalan dictator was convicted for 80 years for genocide. Argentinean courts continued to deal with the 1976-1983 “dirty war” era crimes such as murder, enforced disappearances, torture, stealing of babies etc. – a dictator was given a 50 year sentence and several other high level military officials were given long prison sentences. Closer to home in Asia, in the last few years, a leader of the Khmer Rouge in Cambodia was sentenced to life and trials for two others commenced. The International Criminal Court continued to issue indictments on individuals from several countries. In March 2013 in Geneva, even as they adopted a rather soft resolution on Sri Lanka, the UN Human Rights Council appointed a Commission of Inquiry in relation to North Korea, after extending the mandate of the previously appointed Commission of Inquiry for Syria.

Towards reconciliation, rights and freedom

There doesn’t seem to be much difference in the way the Government has reacted to the LLRC, Geneva resolution and even decisions of Sri Lanka’s highest courts – treat them with utter contempt ignore them or throw them out if the government doesn’t like them. And call their supporters traitors, terrorist sympathizers at best and at worst attack and threaten them.

If the government wants to be serious about reconciliation, perhaps the best way to start is to provide credible answers about their family members to Sri Lankans who went to Geneva two months ago – to Dr. Manoharan, Sandya Ekneligoda, Sithi, and brother and sisters of Bharatha Lakshman Premachandra. So they don’t have to go to Geneva again. And also respond to those who went before the LLRC. And thousands of others who await answers to their complaints to Police, Human Rights Commission, Courts and previous Commissions of Inquiries. And to all those protesting on variety of grievances – such as political prisoners, families of those disappeared, people whose lands are occupied by the military.

If this will start happening, then maybe we can still dream of reconciliation, rights and freedom in our lifetime. And it will help Sri Lankan citizens and the world to feel that we are a civilized country that cares about all it’s citizens, especially minorities, vulnerable persons and those with dissenting views, and where rule of law prevails.

Sandya Ekneligoda, wife of missing journalist Prageeth Ekneligoda, center,  speaks to reporters during a protest rally out side the parliament in Colombo, Sri Lanka, Thursday, Jan. 24, 2013. Relatives, colleagues and opposition activists staged a protest rally Thursday demanding that the Sri Lanka government hold proper investigation to find out what happened to Ekneligoda who went missing in January 2010. (AP Photo/Eranga Jayawardena, via Inquirer News)

The war in Sri Lanka ended on 18^th May 2009. During three decades of war, civil liberties were severely curtailed, often in an arbitrary manner, without possibilities of challenging them or seeking remedies through independent bodies. The Ministry of Defense, the military and police reigned supreme. Even judicial discretion was curtailed, with the Prevention of Terrorism Act (PTA) compelling Judges to obey wishes of the Ministry of Defense and the police through the Attorney General’s department when it came to remanding people, bail etc. The PTA remains as a dreaded legal weapon in the hands of the government to use against it’s peaceful opponents. It was strengthened after the end of the war, incorporating provisions from the Emergency Regulations that were allowed to lapse. Asath Sally, a former Deputy Mayor of Colombo and former government politician, now a prominent critic of the government, was arrested and detained under the PTA.[1] It is widely believed that he was later released due to widespread domestic and international pressure.

The provisions of the PTA directly contradict key fundamental rights and freedoms guaranteed under the Constitution of Sri Lanka including the right to peaceful assembly protected under article 14(1) (b) of the Constitution.   The right is also protected by article 21 of the International Covenant on Civil and Political Rights (ICCPR), which is part of Sri Lanka’s international human rights obligations. Suppression of fundamental rights and freedoms including the freedom of expression and freedom from torture during and after the end of the war has been well documented in Sri Lanka including in a recent article I wrote to mark World Press Freedom day[2].

It is pertinent to note that although the Sri Lankan constitution and the ICCPR allows restrictions to be placed on the right to freedom of peaceful assembly, any such restrictions must be proportionate to the need, time bound and very importantly, be in conformity with the law and be subject to review by independent bodies such as the judiciary. Restrictions must remain the exception, unlike what Sri Lanka has seen for 30 years.

Through three decades, of war, peace talks, ceasefires and even after the war, freedom of peaceful assembly and other rights and freedoms have been severely curtailed by the Sri Lankan state.  It is important to note that the right to freedom of assembly is intricately linked to the enjoyment of other fundamental freedoms such as freedom of expression, freedom of association, freedom of movement etc. For example, restricting freedom of movement has been an effective way of restricting freedom of assembly and restricting freedom of assembly has been used as a means of restricting freedom of expression in Sri Lanka.

The annual government crackdown on small, peaceful, cultural and religious events to commemorate the end of the war by the Tamils in the North is amongst the indicators that the end of the war was not going to herald freedom of peaceful assembly. Families and friends of those killed and disappeared have had their freedom to assemble peacefully to mourn, grieve and observe cultural and religious rituals taken away from them, rejecting the government’s own reconciliation commission which recommended a national event to remember all the victims of war.[3]

Four years after the war, freedom of peaceful assembly remains a distant dream for Sri Lankans who are not supporters of the government. But freedom of assembly – peaceful and violent – is there for those who are supporters of the government and those supported by the government.

The Northern part of the country seems to be the worst affected in terms of suppression of the right to peaceful assembly. But incidents of suppression – including the suppression and attacks on mass protests by political parties, student groups, trade unions and civil society, as well as other peaceful events deemed anti – government have also been reported from the capital, Colombo, and other Southern and Central parts of the island. Police have arrested and dispersed peaceful protesters, sometimes violently and stood by watching when violent mobs attacked peaceful protestors including lawyers, religious clergy and students.[4] People have been stopped from attending gatherings;[5] and police have sought and obtained court orders to prevent or limit peaceful rallies and marches from taking place.[6] Police permission is sometimes outright refused for some peaceful protests.[7] Many protests and events which are deemed anti-government are subjected to surveillance by the state’s intelligence services.[8] Organizers and participants at peaceful events and protests have also been attacked before and after the events, by those alleged to be government groups and supporters.[9]

In the North and in the South, police and military have tried to block funerals that are considered to paint a negative image of the government, such as when political prisoners and opposition party supporters have were killed. They have ended up as “guarded” funerals under heavy military / police guard and surveillance.[10]A crying and angry mother was compelled to wait for weeks, and go to the Supreme Court, simply to bring the dead body of her son (who was killed in custody of the authorities) home for the last time and have the funeral rites in their own hometown.

Significant cases since May 2012 in the North and East

On November 27, 2012, students from the University of Jaffna (UoJ) who gathered peacefully at the UoJ female hostel to light lamps in commemoration of Maaveerar Naal (LTTE Heroes Day) were threatened and violently dispersed by the military. The following day, students from the UoJ staged a peaceful demonstration in protest of the harassment meted out to students on the 27th. This gathering too was brutally clamped down by the riot police, resulting in student union leaders and student activists coming under heavy surveillance by Terrorist Investigation Division (TID).^[11] The arrest and detention for several months of 4 student leaders of the UoJ, just afterwards, are believed to be linked to this incident. The students were released after heavy domestic and international pressure.

On March 5, 2013, the police blocked more than 600 persons (11 buses), comprising families of the disappeared from all parts of the North, from coming into Colombo to participate in a peaceful protest against disappearances, the following day and handover a petition about their disappeared family members to the UN. The military was also standing by when the group was detained. The families (mostly women), were forced to spend the night in Vavuniya without basic facilities, and assured by the police that they could proceed to Colombo the following morning. This assurance however was not kept, and the buses were not permitted to leave Vavuniya. According to eye witnesses, some of the bus drivers had also been threatened.[12]

By contrast, on March 6, about 1500 members of the ‘Dead and Missing Person’s Parents Front’, comprising family members of disappeared Sri Lankan armed forces and of those forcibly recruited by the LTTE, were permitted to stage a protest in Colombo without any obstruction.[13] This was an indicator that the government was willing to allow families of those disappeared to organize and join peaceful assemblies where the alleged perpetrator was the LTTE, but was not willing to allow peaceful assemblies when the alleged perpetrator was the government.

Meetings of the Tamil National Alliance, the major Tamil political party which has won all post war elections in the former war zones of the Northern Province, have been repeatedly attacked, sabotaged and shut down mid-way, mainly by those suspected to be government supporters and the military.[14] A rally which saw the attendance of diverse Tamil political parties and the Opposition Leader Ranil Wickremasinghe was also disrupted with participants being threatened.[15] People protesting about their lands being occupied by the military in the North have also been threatened and activists and lawyers supporting them from Colombo have also been questioned by authorities.

Protest organizers were also targeted in the North. In October 2012, Central Committee Member of the Frontline Socialist Party (FSP), Dimuthu Attygalle had crude oil thrown on her by two unidentified persons, after participating in several Children’s Day activities in Jaffna.^[16] Similarly in July 2012, there were two crude oil attacks on two leaders of the Tamil National Peoples’ Front (TNPF), who were involved in organizing a peaceful protest against the brutal killing of Tamil prisoner Nimalaroopan, whilst in custody.[17]All victims attributed the attacks to the government.

The military has also developed the practice of compelling people in the North seek their permission or inform them of peaceful events – whether they are meetings of community based organizations, events related to development activities such as opening of a housing scheme or social events like weddings. Most people and groups oblige due to fear, though some resist. The military has also been walking into such events even without invitation. One activist recalled how she was questioned by a police officer in Jaffna when she was speaking to a group of youth in broad daylight in an open field. The explanation given by the police was that he was suspicious and concerned because a group of young Tamil people had gathered. The police officer had then told the activist that he will drop the matter because she spoke Sinhalese.

Significant cases since May 2012 in the Capital, Colombo

“Between September 2012 and January 2013, hundreds of lawyers, backed by Sri Lanka’s 11,000-member Bar Association, participated in a series of demonstrations protesting against interference with the independence of the judiciary and to the impeachment of Chief Justice Shirani Bandaranayake in January 2013.”[18] On January 10, pole bearing goons, allegedly sent by the State, attacked peaceful protestors, again, in the presence of the police.[19] In addition, following these peaceful protests, many lawyers and civil society activists who led and participated in these peaceful protests have been threatened and fear for their safety.[20]

On April 12, 2013, a peaceful candle lit vigil organized by the Facebook group Buddhists Questioning Bodu Bala Sena (BQBBS), to be held outside the BBS Head Quarters in Colombo was dispersed by the Police. Participants were threatened and some were arrested before being released due to pressure from others.[21] Several participants reported that their identity details were recorded and asked by the Criminal Investigation Department to report for questioning. At least one person reported being questioned.

Over 1500 university students who took to the streets in Colombo to protest against the Government’s attempt to privatise Universities in August 2012, was met with tear-gas and water cannons by the police and anti-riot squads.[22] In September 2012, the Convenor of the Inter-University Students Federation (IUSF), Sanjeewa Bandara, was arrested by the police in civil following another protest held in Colombo that day.[23]

In Negombo, several human rights defenders were arrested and their equipment confiscated after a video about enforced disappearances was screened. They were released after the police was challenged about the legality of the arrest, but were questioned later [24]

Significant cases since May 2012 in the Central and Southern parts of the country

In April 2013, in Kotagala (Nuwara Eliya district in the central part of the country), a peaceful protest held by the Democratic People’s Front (DPF) was disrupted by the pro-Government Ceylon Workers Congress (CWC), resulting in DPF Party Leader incurring injuries.[25]

In August 2012, a protest conducted by the Government Medical Officers Association (GMOA) in Badulla district, also in the central part of the country, was brought to an abrupt stop by police firing tear gas at the peaceful protestors, protesting against the alleged failure by the police to arrest a driver of a van which knocked down and killed a hospital worker.[26]

Armed men suspected to be government sponsored goons killed two and injured four members of the Janatha Vimukthi Peramuna (JVP) at a party meeting in Hediwatte, Hambantota district in the Southern province (the President’s hometown and strong-hold) in June 2012. Party members have stated that the attack “…was a direct attempt by the Government to scare the party from engaging in political activity in the district.”^[27]

Police using judiciary to ban peaceful assemblies

In early 2012, police started to approach the judiciary to obtain court orders to stop peaceful protests against the government, in Colombo[28], as well as in the North[29]. This trend continued throughout the year and till 2013. Several such incidents have been reported from Jaffna and Vavuniya in the Northern province in relation to events by political parties and Doctors, as well as in relation to a University students march from Kandy in the Central Province to the capital, Colombo.[30]

Conclusions and signs of hope

The Sri Lankan government appears to be systematically and deliberately doing everything within its power to ensure that dissent through peaceful assemblies is suppressed. And there doesn’t seem to be any independent institution that can prevent or respond to this. Funerals of those killed in controversial circumstances by alleged government supporters and cultural and religious events to commemorate those killed and disappeared have been prominent targets.

As we had noted at the beginning, and shown through several examples, the police had stood by and watched peaceful assemblies being attacked, actively participated in arresting peaceful protesters and breaking up peaceful assemblies. They had even released suspects handed over to them by citizens and failed to act despite compelling eyewitness accounts, photographs and videos.

The National Human Rights Commission has also refused to act despite such compelling evidence, and even refused to respond to urgent appeals to it’s 24 hour hotline made by peaceful protesters. They have not made any public statements nor attempted to proactively investigate many of the serious threats to peaceful assembly, despite its powers and mandate to do so.

A recent statement by Lawyers for Democracy (LfD), is a chillingly indicator of the state of freedom of peaceful assembly in Sri Lanka. After themselves experiencing attacks and police inaction on peaceful protests, the lawyers said “We are…seriously concerned with the tactics used including the use of government back armed actors to disturb peaceful rallies and demonstrations. The impunity with which these groups operate is alarming. For example…events were witnessed by the police who stood by and did nothing to prevent the goons from arriving to disrupt a planned protest rally. Such incidents are indicators of the breakdown of law and order and the threat to the democratic culture in Sri Lanka.”^[31]

Like in relation to freedom of expression, all is not lost, despite this very bleak scenario.

Yesterday, 15^th May, thousands participated at a peaceful protest in Colombo against electricity price hikes. According to one participant, government supported goons who were at the venue had been compelled to leave the area due to the huge turnout. This despite the fact that state controlled TV station ITN (Independent Television Network) had as usual, carried a mud slinging campaign against several prominent human rights activists, claiming that those protesting against electricity tariff hike were terrorists supporters.

In the last twelve months, across Sri Lanka, students have been protesting, academics have been protesting, religious clergy have been protesting, women have been protesting, journalists have been protesting, lawyers have been protesting, health workers have been protesting, workers have been protesting. Even political prisoners have been protesting from inside the prisons. In the highly militarized war zones of the Northern Province, victims of land occupation, families of political prisoners, those disappeared and killed have been daring threats, intimidations and obstructions to engage in peaceful protests. In a few days, it is likely that at least a few people will once again commemorate the end of the war in a manner that will be different from the victory parades promoted by the government, resisting threats, intimidations and sabotage as experienced in the past. Even when their demands fall on deaf ears, their struggles will keep alive hopes for democracy and rights.

Image from AsiaNews.it

The focus of  my article in the Sunday Leader of 5 May was on the need for Northern Provincial representation. It now looks as if those elections may be held in September 2013. I will elaborate on the likely consequences of representation, or the lack of it, drawing on past experience in Sri Lanka, India and the USA.

All over Sri Lanka the bulk of the Muslim population are Tamil speakers. It was so almost 100%  at every socio- economic level when the Official Language Act was enacted in 1956. But at that time the political leader ship of the Muslims were mostly Members of Parliament representing Sinhalese majority electorates. All these voted for Sinhala only, as desired by their mostly Sinhalese voters, even though they were themselves Tamil speaking.  The Muslim MP’s representing Eastern Province electorates voted against the Bill, as desired by their voters, nearly all of them Tamil speaking. In the Senate, AMA Azeez, who was not elected by Sinhalese voters, not only opposed the Bill but quit his party on this issue. One of the objectives in forming the SLMC, much later, under the leadership of Ashroff, based in the Eastern Province, was to ensure the election of Muslim MPs responsive to the wishes of the Muslim population.

In India, the Dalits / Harijan /Untouchables and Tribals have enjoyed quota reservations in political bodies and public institutions at all levels for close to a century. The practice had been that the reserved seats had been rotated from election to election with only Dalits standing for elections in the seats reserved for them.  In the 1930s, about the same time as the Donoughmore Commission in Sri Lanka, a dispute arose between the Dalit leader Dr.B.Ambedkar    and Mahatma Gandhi as to whether electorates should hitherto be purely territorial or whether Dalits should have separate electoral registers. Gandhi wanted the former, and Ambedkar the latter, but there was no dispute regarding the need for reservations. Under Gandhi’s proposal even in electorates for Dalits, the majority of the voters would be non- Dalits. Dr.Ambedkar argued that the Dalit candidates would then tailor their manifestos to suit the majority non- Dalit voters. In fact Dalit candidates seeking High Caste Hindu votes would often stand respectfully outside the house, declining any invitation to enter the house or to sit on a chair or to accept a cup of tea. Such practices helped to win High Caste votes.  Dr.Ambedkar wanted Dalit candidate to adopt radical manifestos for 100% Dalit electorates. The British Colonial Government suspended progress towards independence till this issue was solved. Gandhi started a fast to death and was close to death when Ambedkar caved in, and agreed to purely territorial electorates with both Dalit and Non-Dalit voters in exchange for increased quotas for Dalits. It is this compromise that was embodied in the Indian Constitution drafted two decades later under the Chairmanship of Dr.Ambedkar.

In the USA, Governor Wallace of Alabama, perhaps the most racist of the Southern leaders, had Presidential ambitions. His state was Black majority but he had ensured that, as in most Southern states, most of the Blacks were denied voting rights on some pretext or the other, such as illiteracy. The Whites all over the South were fearful of being swamped by Blacks if they gained voting rights. His 1962 campaign slogan was, “From the cradle of the Confederacy, this very heart of the great Anglo- Saxon Southland … Segregation now! Segregation tomorrow! Segregation forever! He bitterly and violently opposed the Voting Rights Act, but when he found that he could not stop it, he did a U-turn on many issues. He there after supported many Black causes because his vote base was now more Black than White, though he remained as racist as ever.

Hopefully the NPC elections will not only bring about changes in the administration of the Northern Province, but also compel Colombo to take into account the NPC leadership, which may be why these elections have been long delayed. The elections and their likely outcome will surely have a positive impact on the politics of Colombo and also on National Reconciliation.

Image courtesy Brisbane Times

by Laksiri Jayasuriya, University of Western Australia

Introduction

The 2010 Sri Lankan Presidential and Parliamentary elections that took place shortly after the end of a debilitating 25 year-old civil war in 2009 constitutes a watershed in Sri Lanka’s politics. Despite the unsettled conditions over the last two decades emanating from this turbulent environment created by the civil war and the seemingly intractable obstacles encountered, Sri Lanka was able to maintain some semblance of the principles and practices of a liberal democracy (Clarence 2008). However, the dramatic events more recently surrounding the end of the civil war and the emergence of a ‘culture of violence, anomie and impunity’ (Devotta 2009) have cast a heavy cloud over the future of Sri Lanka’s democratic polity.

The political order that emerged in 2005 with the Mahinda Rajapaksa-led Sri Lanka Freedom Party (SLFP) government has served to consolidate the illiberal political culture and institutions that evolved with the radical social and political transformation of the country since 1978 (Devotta 2002; Jayasuriya 2012). Notwithstanding the termination of a state of emergency after the end of the civil war (CPA 2011) the continued use of ‘Emergency Laws’ such as the Prevention of Terrorism Act (PTA) after the end of the civil war, bears witness to the growing militarisation of civil society and hostility to political and social pluralism. (Jayasuriya 2010). The fabric of the emergency laws and institution has become normalised and continue to shape the polity

Since the 2010 national election the government has given priority to national security considerations alongside issues of sovereignty and created new centres of power whose influence on civil society has expanded extensively. This has raised serious questions as to why the military continues to be afforded police powers and are able to override normal constitutional and legal processes (Pinto-Jayawardena 2010). Although the political climate in Sri Lanka since the 1980s was engulfed in political violence associated with armed conflicts in ‘fault line wars’ (Huntington 1996), it has not eventuated in the wholesale dismantling of democratic institutions. However, more recently key features of the well-entrenched liberal political culture of several decades, such as transparency, accountability and the rule of law have been severely eroded more recently (Pinto-Jayawardena 2009).

It was against this background that the Presidential and Parliamentary national elections of 2010 were conducted after the ending of the civil war in 2009.[1] The success of the Mahinda Rajapaksa-led SLFP government at the Presidential and Parliamentary elections of 2010 has resulted in a One Party State where the dominant party with a large parliamentary majority, the SLFP, surpasses the opposition led by the United National Party (UNP). The weakened opposition gives the government of the day complete access to and control of key state institutions and resources which are used to entrench the dominant party.

Emergence of a Hybrid Regime and Militarised State

Following the 2010 national elections we witness the inauguration of a new political regime − best described as a hybrid regime − similar to that prevailing in south-east Asian countries such as Malaysia and Singapore (Wigell 2008; Rodan and Jayasuriya 2009), which were also like Sri Lanka previously British colonies. These regimes, built around a dominant party, consist of a mixture of authoritarian and democratic elements where formal democratic processes such as periodic elections combine with a strong incumbent party to limit the organisational capacity of the political opposition.

A distinctive feature of this new political culture is the organisational cohesiveness of party and state institutions that provides significant informal advantages to the dominant political party (Levitsky and Way 2010: 321), enabling it to reach deep into both the civil society and the political economy. It is now clear that the end of the civil war actually accelerated a fundamental process of state transformation leading to the emergence of a hybrid regime in what amounts to a One Party state which constitutes a significant departure from the earlier political ethos and has, grave implications for Sri Lanka’s historical engagement with democratic institutions and practices.

It is in this sense that contemporary Sri Lanka like Mahathir’s Malaysia represents a ‘hybrid regime’, that is, a mix of authoritarian and democratic elements where formal democratic processes combined with a strong incumbent party that seeks to limit the organisational capacity of the political opposition (Stark 2013). Thus, we note that although normal democratic institutions such as the legal system and the electoral process are functional and operative, they can be skilfully manipulated to maintain regime dominance. As with the Mahathir in Malaysia the Rajapaksa led SLFP government has been adroit in using state resources to weaken the opposition but more importantly through a system of patronage politics and cronyism to cater to the various constituencies within the dominant party. The extent and reach of the dominant party in seeking to limit the opposition has reinforced the Executive system of government installed in 1978 by effectively marginalising parliamentary politics.

Furthermore, in addition to the formal advantages the government enjoys there is often a tendency for the government to rely increasingly on the ‘informalisation of power’, that is, the advantages of informal power gained through personal alliances and systems of patronage. These informal powers are reinforced by a Presidential system of governance that allows the Executive head of government, the President, to directly or indirectly delegate executive powers to key members of the government and personalised networks. The delegation of power has been to members of the government, most of who happen to be personally related to the President, such the Defence Secretary, the powerful head of the defence establishment and national security. Indeed, one of the key features of the current political situation is the creation of a ‘deep state’, that is, a web of interpersonal networks, informal links, relationships and alliances, that has often trumped the operation of the ‘normal state’

The personalisation of power characteristic of the new regime, evident in the ‘personalised hegemony’ of President Mahinda Rajapaksa is highly reminiscent of the Malaysian authoritarian politics (1981-2003) under the leadership of Mahathir of the UMNO, 1981-2003 (KhooBoo Teik 2003; Guan and Nesadurai 2009). Furthermore, as in Mahathir’s Malaysia, Mahinda Rajapaksa has embraced and vigorously promoted the nationalist sentiments and ideology of Sri Lanka’s ‘bhumiputras’ (sons of the soil), the Sinhalese-Buddhists, elevating the notion of the ‘jathika chintanaya’ to near sacral status. This was made quite explicit at the 2005 Presidential Elections (Department of National Planning 2005), with the reference to the ‘Mahinda Cintanaya’, the Vision for the Nation’s Future. This was not just an electoral slogan, but a basic tenet of Mahinda Rajapaksa’s policy agenda which was incorporated as a guiding principle of public policy. Accordingly Ministers of State are required to act in accordance with the ‘Mahinda Cintanaya’ (Wijewardene 2013) and bring key state institutions and regulatory agencies, including the police and the judiciary within the ambit of the philosophy of the dominant party.

These distinctive features of the current regime draws pointed attention to the ‘personalistic character of Presidential legitimacy (Scheurmann2011) which allows the Executive to cultivate a seemingly direct and immediate relationship with the electorate via all forms of the media. As a consequence we find that these forms of presidential governance are associated with a consolidation of − to use Weberian terminology − a ‘charismatic leadership’ which often represents a quest to find a secular replacement for the magical or divine powers once attributed to monarchs (Scheurmann 2011). The consolidation of Executive power is best revealed in the current centralisation of power such that 42 Ministers with control over 94 state institutions are directly under the control of the President or one of his close family members (Wijewardene 2013).

What this also points to is the inauguration of a ‘dynastic regime’ reminiscent but different to that of the Banadaranaike’s in the 60s and 70s (Jayasuriya 2005) in that the informalisation of power, a distinctive feature of the present regime. This has greatly facilitated the virtual collapse of the system of the separation of powers between the executive, legislature and the judiciary, a characteristic feature of the earlier Westminster style of government. This new illiberal political order is perhaps most evident in the manner in which the state controls the media and more generally restricts civil society participation in open public debate. Furthermore ‘violent repression of dissent and the consolidation of power go hand in hand in Sri Lanka’ (Amnesty International 2013), and this, above all, exemplifies the manner in which the constitutional authoritarianism of the new regime has removed all constitutional checks and balances in the system of government (Coomaraswamy 1984).

Importantly a One Party state with a highly centralised and personalised Executive Presidential form of government built around informal relationships functions against the backdrop of ‘militarisation’ (Jayasuriya 2010) such that the military has an inordinate influence on the conduct of political institutions). This militarization characteristic of the Rajapaksa regime and which conferred an inordinate influence on the conduct of political institutions originates from crushing of the 1980s armed Sinhalese youth revolt and gained momentum during the civil war of the 1990s. However, it was the strengthening of the military and defence forces in the final years of the civil war that led to the ‘militarism’ under President Rajapaksa (Jayasuriya 2010). This militarisation of Sri Lanka is clearly evident in the heightened defence and military expenditure of roughly between 3% and 5% (Kelegama 2006; SIPRI 2013). This extent of military expenditure, the largest in the region except for Pakistan, has enabled a powerful military establishment to resort to the use of ‘Emergency Laws’ to subvert democratic processes on the grounds of ‘legal exceptionalism’ (Loveman 1993; Jayasuriya 2010).

In this regard, there are two main areas of concern. The first and perhaps the most serious relate to human rights abuse (Zanzi 2002) by virtue of the immunity granted to public officials in the security forces to act outside of their professional jurisdiction. The repeal of the Emergency Regulations post-2010 however, as previously noted, has done little to alleviate human rights violations such as the authorities continued use of Emergency Laws such as the PTA (CPA 2011). The other area of concern is that this militarization has in the post-civil war era witnessed a blurring of civil-military roles leading to the transformation of civil military relations. The recent military takeover of land in the North is indicative of ‘why the military-civilian relationship is problematic’ (Perera 2013b). This shows the extent to which the military has been given a free hand in many areas of national life such as fixing roads and re-modelling cities ( Economist 2013), so much so that the ‘public space is now military space’ (Lawrence 2008).

There is no doubt that the military establishment has taken centre stage as the new power elite and sought to exploit civilian interests with whom the military have entered into coalition. The time honoured democratic processes associated with the civilian control of the military establishment are no longer operative in that the military has assumed a key role in determining and shaping the implementation of national policy and decision making in many areas including the field of education, foreign relations and development. Furthermore, one of the main reasons for spreading ‘military influence is indoctrination … [so much so that] ‘leadership training for university students is now run by the army inside military camps’ (Economist 2013).

The current regime’s espousal of an avowedly ethnic, nationalist ideology also stands out, as previously noted, in its strong policy commitment to national security on the grounds of the likelihood of a return to political instability (Gordon 2013). The actions of the new regime such as a heightened defence expenditure amounting to nearly 3-5% of GDP over last decade gives a strong indication of what kind of governance will be promoted by the Rajapaksa government in the foreseeable future.

Constitutional and Social Policy Changes: Consolidating Power

Perhaps the most significant indicator of what lies ahead, comes from the far-reaching constitutional changes such as the removal of Article 31(2) and changes to Article 25 arising from the passage of the 18th Amendment to the Constitution (CPA2010). The 18th Amendment proposes to remove critical constitutional constraints on Presidential powers by a) removing the two-term limit on the tenure of the President; and b) bringing every arm of the public service, the police and the judiciary under the control of the Executive authority. At the same time, the18th Amendment makes the President nominally accountable to Parliament by providing for the President to attend Parliament In addition with this Amendment the Electoral Bribery and National Police Commission were also brought directly under the control of the President.

The passing of the 18^th Amendment, one of the first major decisions made at the commencement of Rajapaksa’s second term in 2010, was only made possible after the government secured a two-third majority by successfully negotiating the cross-over support of some members of the opposition. These proposals have been condemned by civil society organisations such as the Civil Rights Movement as an outrageous constitutional change which was rushed through Parliament without any serious public scrutiny (Wickremesinghe 2010).

More significantly, this radical change to the Constitution completely negates the 17th Amendment by making the appointment of the Constitutional Council a Presidential Executive responsibility. As a result, the statutory authority to approve the appointment of the Attorney General, which previously rested with the Constitutional Council, now rests with the Parliament subject to the approval of the President. To complicate matters this draconian piece of legislation which was unsuccessfully challenged in the Supreme Court much to the surprise of many informed observers has served to further entrenched the Executive powers of the President and seriously weakened legal accountability This decision also undermines the rule of law as it violates the concept of an independent judiciary and also that of a State Law Officer, the Attorney General (Usvatte-Aratchi2010). These decisions have clearly violated fundamental principles of public policy which originated from the days of the late colonial state and were entrenched in the post-Independence Constitution of 1948 by the Soulbury Commission Report (De Silva 1977; Cooray 1982).

The arbitrary exercise of power, in many instances unconstitutional and improper, became highly evident in the clash between the President and the former Head of the armed forces, General Sarath Fonseka. The fall out between the General and the President was a sequel to Fonseka’s entry into national politics in 2010 as the main oppositional candidate at the Presidential elections. After the convincing defeat of Fonseka at the Presidential election (Jayasuriya 2011), Fonseka was committed to trial on charges of war crimes committed by him as Army commander as well as allegations of planning a coup to overthrow the government of President Rajapaksa (Burke 2011). Following the trial of Fonseka by a War Tribunal, he was imprisoned and released only in 2013. The legal processes and procedures followed in the arrest and detention of Fonseka were considered highly irregular and in violation of the Constitution (Perera 2012). In fact, a former foreign affairs spokesperson and a onetime diplomat of the Rajapaksa government was so outraged by the impropriety of this action that he described it as ‘a perfect blunder’ (Jayatilleke 2010).

This continuing trend towards the unfettered and irregular exercise of power without any regard for due process, the principles of the rule of law or human rights was most apparent and highly visible in the impeachment crisis.[2] This relates to the impeachment charges brought against the Chief Justice (Shirani Bandararnayaka) on the grounds of misconduct. These proceedings came in the wake of a ruling given by the Chief Justice and the Supreme Court declaring an important government Bill (the Divineguma Bill) to be unconstitutional and invalid. Contrary to the expectations of the 13^th Amendment, the main objective of this Bill was to devalue the powers of the Provincial Councils and strengthen the hold of the central government in the Provinces including many Tamil areas. This was to be achieved by establishing a central authority amalgamating several provincial development agencies (Fernando 2012; Perera 2012).

Overriding a ruling of the highest court in the land, the Court of Criminal Appeal, the government proceeded to act upon the impeachment decision of Parliament and appoint a new Chief Justice (Fernandez 2013). This action of the government was deemed by many to be unconstitutional but also ‘a serious breach of the rule of law’ (Robertson 2013). Besides, it also constituted a gross interference with the independence of the judiciary (Philips 2013). Indeed, as one political analyst stated, if the judiciary cannot decide on the legality and constitutionality of laws’ passed by the legislature there is a serious crisis of legality and legitimacy of the Government (Jayatilleka 2013).

There is no doubt that what was underpinning all these highly irregular and unconstitutional actions was the need to strengthen national security singled out as the foremost policy consideration of the Rajapaksa government. Thus one of the main arguments advanced in defence of legislative action such as the 18^th Amendment and the resort to the arbitrary exercise of power was that the country needed a strong Executive along the lines of those evident among the ‘Asian Tigers’ to promote development such as Mahathir’s Malaysia (Stark 2013).

This developmental philosophy echoes the neo-liberal ideological ideology of the Jayawardena-Premadasa era (1978-94) and was clearly spelt out in the Rajapaksa government’s Election Manifesto indicating its commitment to give priority to the economic dimension by pursuing a policy of market reform conceived as a form of ‘military fiscalism’ (Venugopal 2011). However, this political rhetoric of a militarised political economy was sharply disputed by political analysts who maintained that ‘there is no economist worth his salt who will say that [a strong Executive] is absolutely essential for development to accelerate’ (Usvatte-Aracthi 2010).

There is no doubt that the new regime in advocating a distinctly neo-liberal economic ideology has been quick to embrace the ‘Singapore sling’ cocktail style capitalism (modelled on shopping malls, casinos, clean streets, tourist hotels and resorts etc.,) to facilitate the development of the country. This tourist-centric development policy has accorded high priority to infrastructure development which is clearly evident in the substantial investments in ports, highways, and railroad sectors, alongside other development projects relating to power and energy (Rajapaksa 2011). This policy strategy of the Rajapaksa government serves to highlight a growing public debt with a high component of foreign debt, losses in state owned enterprises and wasteful expenditure with a lack of accountability and increasing inequalisation (Jayasuriya 2013).

This ‘developmentalism’ represents a significant departure from the Kumaratunga policies of a ‘soft welfarism’ in the pursuit of distributional equity and social justice, 1994-2005 (Jayasuriya 2010; Sanderatne 2011a). Thus we note that the expenditure on health, education, and social services in the 2012 Budget detracts sharply from a commitment to directing economic growth towards greater equality (Sanderatne 2011b) By contrast the credo of the Rajapaksa regime, as in many Asian Tiger economies like Singapore, is framed not in terms of distributional equity but along notions of asset enhancement regarded as the key to enhancing the participation and capabilities of its citizens.

Conclusion

At first sight the social and political philosophy rationale underlying this political ideology appears to be slanted towards the Confucianist thinking which is based on the defining importance of stability, law and order, and respect for the Leader. However this respect for the Leader can also be understood in terms of a Kautilyan economic philosophy with its emphasis on the importance of material well-being as the priority of state and society (Rich 2010). It is no coincidence that this way of thinking also blends neatly with the ruthless Kautilyan real politic of this regime’s authoritarian constitutionalism. In this regard it may be relevant to draw attention to the public outcry over human rights violations such as War Crimes allegations made against the Government of Sri Lanka (GOSL) by International Observers and UN Agencies.

The Kautilyan ideological perspective is perhaps neatly illustrated by the Rajapaksa government’s emphatic rejection of the applicability of the moral and philosophical rationale underlying concepts of Human Rights entrenched in international agencies such as the United Nation’s Human Rights Council and Human Rights Watch in relation to the civil war and its aftermath. These violations and abuses of human rights have been documented by the UN in the Darusman Report on war crimes allegations (United Nations 2011); also by Weiss (2011) and more recently in the 2012 UN’s Human Rights Watch.[3]

These allegations have taken centre stage, overriding all other issues of public policy such as the growing public debt with a high component of foreign debt, and increasing inequalisation (Jayasuriya 2010;2013). In rejecting liberal political values, it was argued that these distinctly Western idea systems were totally alien to the local cultural ideology and were highly reminiscent of a discredited colonial era totally. and constituted a meddling in the internal affairs of a sovereign country. This rejection of liberal political values such as universal human rights is defended on the grounds of cultural relativism as a way of steering clear of the adoption of alien ideas reminiscent of colonialism. This standpoint, of course, can easily degenerate ‘into complicity in human rights violations’ (Scheffer 2011) and, is widely acknowledged as a ‘deep seated characteristic of authoritarian regimes all over the world’ (Scheffer 2011).

The civil war may have formally ended, but the ‘fault lines’ of the war still remain (Jayatilleke 2011). In the end, lurking in the background of the prospect of restoring democratic institutions and processes, there remain some intriguing questions relating to the peace process and reconciliation following the end of hostilities which the two main national parties failed to confront in the 2010 national elections, both Presidential and Parliamentary. These issues hardly surfaced during the elections except for motherhood statements from both sides of politics on the need for restoring peace and harmony However the appointment of the LLRC (Lessons Learnt and Reconciliation Commission) remains to the credit of the Rajapaksa Government but its recommendations such as those bearing on land settlement policy in the war torn areas of the North and Easy remain archived and in the too hard basket (Perera 2013a).

What Sri Lanka urgently needs is a Glasnost marking a new social and political ethos based on a policy of accountability, openness and transparency, freedom , and justice. Above all Sri Lanka needs something along the lines of a ‘Charter 88’ movement committed to the goal of ‘democratic constitutionalism’ and the restoration of a free and vibrant civil society. The Charter 88 in the UK was a reaction against ‘the belligerent and confrontational style of governance’ promoted by Thatcherism (Erdos 2009). But to be effective such a movement needs to have a broad base that confronts both political and social challenges for contemporary Sri Lankan society, and a Fourth Estate capable of deconstructing and countering the official media. Future developments will indicate how a militarised political economy critically located in the interface of Asia-Pacific geopolitics will respond internationally and domestically to the challenges it confronts in the foreseeable future.

References

Burke, J. (2011) ‘Former Sri Lankan Army Chief Convicted for War Crimes’. The Guardian, 18^th November.

Clarence, W. ( 2008) Ethnic Warfare in Sri Lanka and the UN Crisis. London: Pluto

CPA (Centre for Policy Alternatives) (2010)) Statement of the Eighteenth Amendment Bill. Colombo: Centre for Policy Alternatives http://cpalanka.org/statement-on-the-eighteenth-amendment-bill/

CPA (2011) On the Termination of the State of Emergency Statement by the Centre for Policy Alternatives Polity, Vol 6: (1&2)

Coomaraswamy, R. (1984) Sri Lanka. The Crisis of Anglo American Constitutional Traditions in Developing Society. New Delhi: Vikas.

Cooray, M.J.A. (1982) Judicial Role under the Constitution of Ceylon/Sri Lanka: A Historical and Comparative Study. Colombo: Lake House Investments.

Department of National Planning (2005) Mahinda Chintana: Vision for the Future. Colombo: Ministry of Finance, Government of Sri Lanka

de Silva, K.M. (1979) ‘The Constitution and Constitutional Reform since 1942’. In K.M. De Silva (ed.), Sri Lanka: A Survey. London: Hirst.

de Votta, N. (2002) ‘Illiberalism and Ethnic Conflict in Sri Lanka’. Journal of Democracy 13 (1): 84-98.

Economist (2013) ‘Politics in Sri Lanka-Military Muscling’. March 23-29’

Erdos, D. (2009) ‘Charter 88 and the Constitutional Reform Movement: A Retrospective’. Parliamentary Affairs, Vol 62 (4).

Fernandez, M. (2013) ‘Sri Lanka. A Tale of Two Chief Justices. Available at:
www.aljazeera,cim/indepth/features/2013//7122157590311html.

Fernando, K. (2012) ‘What’s Wrong with the Divineguma Bill?’ Asian Tribune, Vol 12(309).

Gordan, S. (2013) ‘Sri Lanka: Still difficult to “Bell the Cat”’. Future Directions. 2oth February.

Guan, L.H. and H.E.S. Nesadurai (2009) ‘Political Transition in Malaysia: The Future of Malaysia’s Hybrid Political Regime’. In Caballero Anthony, Mely (ed.), Political Change, Democratic Transition and Security in Society in South East Asia. London: Routledge.

Huntington, S. (1996) The Clash of Civilizations and the Remaking of the World Order. New York: Touchstone.

ICJ (International Commission of Jurists ) 2012:Authority without Accountability: The Crisis of Impunity Geneva. ICJ

Jayasuriya, L. (2010) Taking Social Development Seriously: the Experience of Sri Lanka New Delhi: Sage.

Jayasuriya. L (2011) ‘Post Civil War Sri Lankan Electoral Politics and the Future of Liberal Democracy’. Asia Pacific World. Vol 2 (1)

Jayasuriya, L. (2012) The Changing Face of Electoral Politics in Sri Lanka. Colombo: Social Science Association SSA

Jayasuriya L. (2013) ‘Sri Lanka’s Experience of Social Development: Towards Equity and Justice’. In Gabrielle Kohler and Deepta Chopra (eds), Development and Welfare Policy in South Asia. Routledge. forthcoming

Jayatilleke, D. (2010) ‘The Fonseka Affair: A Perfect Blunder’. The Island. 15^thFebruary

Jayatilleke, D. (2011)’ Post-conflict Building: A Gradualist Perspective for Evolving Reform’. Groundviews Jul.y. Available at: www.groundviews.org2011/07/24

Jayatilleke, D. (2013) ‘Impeachment a Perfect Blunder – 2’. Daily, January 8.

Kelegama, S. (2006) Development Under Stress. New Delh: Sage

KhooBooTeik (2003) Beyond Mahathir: Malaysian Politics and its Discontents. London and New York: Zed Books.

Levitsky, S. and L.A. Way (2002) ‘The Rise of Competitive Authoritarianism’. Journal of Democracy (92): 51-65.

Loveman, B. (1993) Constitutional Governments and Regimes of Exception. Pittsburg: Pittsburg University Press.

Perera, E. (2012) ‘Imprisonment Sentence Must be Declared Invalid’. Available at:
http://transcurrents.com/new-views/archives/11647

Perera, J. (2012) ‘Political Challenges in Post-War Sri Lanka’. Insight No. 194: Singapore: ISAS (Institute of South Asian Studies)

Perera, J. (2013a) ‘In the North, the Government is Setting a Vicious Cycle in Motion Again’. The Island, May 7^th

Perear, J. (2013b) ‘Reasons for Separating Military from Civilian Affairs’. The Island, May 13th

Philips, R (2013) ‘The Year of Judgement’. Colombo Telegraph, January 7^th

Pinto-Jayawardena, K. (2009) The Rule of Law in Decline Copenhagen. Research Centre for Torture Victims.

Pinto-Jayawardena, K. (2010) Still Seeking Justice in Sri Lanka: Rule of Law, the Criminal Justice System, and Commissions of Inquiry. Geneva: International Commission of Jurists.

Pinto-Jayawardena, K. (2011) ‘On Being Prosecuted in a Foreign Country’. Sri Lanka Guardian, 23^rd October.

Robertson, G. (2013) Report on the Impeachment of Sri Lanka’s Chief Justice. London: Bar Human Rights Committee of England and Wales.

Rodan, G. and K. Jayasuriya (2009) ‘Capitalist Development, Regime Transtition and New Forms of Authoritarianism’. Pacific Review 22 (1): 23-47

Sanderatne, N. (2011a) ‘Will Budget 2012 Achieve Economic Growth and Equity?’. Sunday Times. November 20.

Sanderatne, N. (2011b) ‘Economic Growth and Social Development’. Sunday Times July 17.

Scheffer, P. (2011) Immigrant Nations Cambridge: Polity

Scheurmann, W.E. ( 2011) ‘Presidentialism and Emergency Gob\vernment’, In V. Ramraj (ed.,) Emergencies and Limits of Legality. Cambridge: Cambridge University Press.

SIPRI (Stockholm International Peace Research Institute) (2012) ‘Sri Lanka Military Expenditure’. In SIPRI Yearbook

Stark J (2013) Malaysia and the Developing World . London Routledge

United Nations (2011) Darusman Report. Report of the Secretary-General’s Panel of Experts on ‘Accountability’ in Sri Lanka. Available at:
www.un.org/news/dh/infocus/Sri_Lanka

United Nations (2012) World Report on Human Rights Watch.
Available at: www.hrw.org/world-report-2012/world report2012.

Usvatte-Aratchi, G. (2010) ‘Eighteenth Amendment: A Rush to Elected Tyranny’. The Island, September 6.

Venugopal R (2011) ‘The Politics of Market Reform at a Time of Civil War::Military Fiscalism in Sri Lanka’. Economic and Political Weekly. Vol XLVI (49).

Weiss, G. (2011) The Cage: The Fight for Sri Lanka & the Last Days of the Tamil Tigers. London: Random House.

Wickramesinghe, S. (2010) ‘Civil Rights Movement Statement on the 18^th Amendment to the Constitution’. Available at: http://transcurrents.com/tc September 5^th 2010.

Wigell, M. (2008) ‘Mappping “Hyprid Regimes”. Regime Types and Concepts in Comparative Politics’. Democratization 15 (2): 230-250.

Wijewardene, R. (2013) ‘94 Government departments under direct family control’. The Sunday Leader. 3^rd March

Zanzi, A. (2002) ‘Sri Lanka’s Emergency Laws’. Available at:
http://www.india-seminar.com/2002/512/512%20abizer%20zanzi.html

Image courtesy ICRW

‘Are we not raped every day when we walk down the street and are leered at ? Are we not raped when we are treated as sex objects, denied our rights, oppressed in so many ways ?’

Archives of Manushi, written by Sohaila (1983)

Sri Lanka reminds one of one’s gender. To be female in a public bus is to be visually harassed (or more) and to be reminded of the persistent failures of the establishment to address those issues which are truly important. Organisations such as Sri Lanka Unites have attempted to shine a light on this issue with their Show You Care campaign. Yet, public harassment deserves attention on a larger, central government scale in a manner which considers multiple regions.

This lack of personal safety is yet another reminder of the stark inequality in this nation. The lives of bus-folk are worlds apart from those at the other end of the spectrum. The normalisation of cat-calling, hooting and jeering has meant that, while walking down a public road is a form of entertainment for those at the source, it is unsettling and frustrating for the many women who have no option. Life is an everyday struggle for the majority of society, a struggle which is acknowledged yet accepted as given. The beauty of change is not embraced and the upper classes fail to respond to their collective responsibility. The cycle continues.

Using public transport during peak hours is a nightmare. Deliberate groping, leering, and worse have become the norm. It is disturbing that this sort of behaviour is accepted and expected, only permitting it to continue. Silence is unintentional consent. This makes it difficult to distinguish between the ‘good guys’ and the ‘bad guys’. Outspoken male feminism, although it exists, is very limited. But, this, I feel, is the only way forward in a culture which tends to privilege men. There is a need to understand that these issues are not ‘women’s issues’, not only because it is not only women who are affected but also because framing them in this manner tends to criminalise the victim. There is a need for men to break through peer cultures which prevent them from acting differently. There is also a need to understand that issues of greater consequence such as rape and domestic violence are not the only concerns in this frame.

It is concerning that such issues are frequently swept under the carpet in the face of flash projects such as our newest international airport and other such physical embellishments. The current stream of real estate projects aimed at transforming the aesthetic landscape of Colombo and promising torrents of investment demonstrates the uni-polar nature of existing development efforts. Krrish Square promises a ‘new destination to life, enjoyment…’ but who for? The minority who also indulge in the other fruits of life which Colombo life has to offer. The ‘exclusivity’ of this and other projects does not bode well for a Democratic Socialist Republic. For Sri Lanka to blossom as a nation, it is the entire nation which must benefit.

It is saddening that a country which has immense potential, especially in terms of its human capital, is repeatedly wrung on ethnic lines, an issue which is being pushed to the fore continuously as other problems waltz by. The fact that it is this issue which ties Sri Lanka together with international fora speaks for itself. To be Sinhalese, Tamil, Muslim or Burgher is irrelevant when it comes to addressing universal issues such as the lack of pavements on Peradeniya Road or the corruption/inaction/poor service inherent in most Municipal Council systems.  There is no doubt that Sri Lanka’s continually resurfacing ethnicity dialogue is of importance given recent events and those three decades ago; however, perhaps what can bring us together is to move on from the past and to collectively address problems faced by all.

Questioning authority is a redundant trade, and the situation has reached a ‘what’s the point?’ stage. The irony in this apathetic attitude lies in its inability to stimulate the change which would (or could) resolve issues. An equal society – by gender, income, region, ethnicity – seems a far cry to most but a lack of faith brings with it a lack of action. There is a need to rouse these demons in public discourse, a need to de-taboo and a need to open spaces of discussion for those victimised. A change in attitudes is not an easily achievable feat yet the hope for progress rests on this possibility.

Image courtesy The Guardian

On 10 May 2013, former Guatemalan dictator Efraín Ríos Montt was found guilty of genocide and crimes against humanity and sentenced to 80 years in prison. It was the first time that an ex-head of state had been convicted for genocide by a court in his or her own country. The case is of international importance, including in Sri Lanka.

President Ríos Montt had ordered the deaths of 1,771 people of the Ixil Maya ethnic group in 1982 and 1983. He was in power during the bloodiest phase of a civil war that lasted from 1960-1996, during which an estimated 200,000 were killed and 45,000 more “disappeared”. Others were raped, tortured in other ways or driven from their homes.

While mass murder and ethnic cleansing took place in the countryside, in the cities trade unionists and student leaders were seized by the security forces. The military were supposedly battling left-wing guerrillas but civilians suffered in huge numbers, sometimes at the hands of brutal paramilitary groups working alongside the armed forces.

Some Guatemalans, especially in the ruling elite, would rather have avoided the trial and glossed over past human rights abuses. But there were cheers in the courtroom in Guatemala City when Judge Jazmín Barrios read out the sentence. As 42-year-old Elena de Paz Santiago, one of those who testified, had said of the dictator, “He gave the order.” She was just 12 when she and her mother were taken to an army base and raped. The soldiers released her but she never saw her mother again.

The dead cannot be brought back to life nor can all the mental and physical scars of survivors be healed. However they have received some justice, and the message has been sent out that everyone, of whatever ethnic group or social class, deserves to be protected and treated with respect.

In South Africa, the quest for justice after apartheid ended took a different form. A Truth and Reconciliation Commission was set up which heard from the victims of human rights abuses. Some of those guilty were spared punishment if they confessed what they had done. However there too those guilty of terrible crimes, even if supposedly carried out in defence of the state, were finally held to account, and families were able to find out what had happened to their loved ones. It was an opportunity for both the violent and victims of violence to tell, and hear, the truth.

In other countries too, past abuses which have gone uncorrected still cast a shadow over the present. In Sri Lanka, between the late 1970s and early 1990s, numerous people died or had their lives shattered. The security forces and their paramilitary allies slaughtered huge numbers and abused others or drove them from their homes and livelihoods. Others suffered and sometimes died at the hands of the Tigers, other Tamil nationalist groups and the Janatha Vimukthi Peramuna (JVP), who used their power to violate the safety, dignity and freedom of others.

Many Sri Lankans remain in denial about the horror of those years and resist calls to unearth (sometimes literally) the evidence. Some, obviously, are fearful that what they – or those close to them – did, or failed to do, will be exposed, while others may prefer to shy away from confronting the scale of suffering. The fact that certain leading figures in the government and opposition may be implicated has added to the pressure to let the past stay buried.

However this refusal to get to grips with what happened is not only unjust to the dead, the bereaved and the traumatised but may be largely to blame for the massive violence that has taken place in twenty-first century Sri Lanka and ongoing ethnic, religious and social divisions. What is more, all civilians are at risk when the state is regarded as unaccountable to anyone, able to torture, burn and kill with impunity.

In Guatemala and beyond, the process of unearthing the past and acknowledging former wrongs is sometimes painful. But unless this is done, there is little chance of healing wounds and building a truly just and peaceful society.

Photo courtesy Vikalpa, taken at the launch of the book in Colombo.

Reading a tome on constitutional history, theory and practice – like Asanga Welikala’s edited collection titled The Sri Lankan Republic at 40 – can be a daunting task. For a start, such books have too much to say about constitutions. The more you read about constitutional documents, the more they begin to appear God-like. For a constitutional-skeptic, this is a horrible prospect. Also, the broader discipline of constitutional law often comes across as an esoteric one. In examining the Table of Contents, one senses that much of what is contained in Asanga’s collection (which runs into two large volumes) is for the specialist. With 1166 pages divided into four parts – namely ‘constitutional history’, ‘constitutional theory’, ‘constitutional practice’ and ‘interviews and recollections’ – one feels (and the feeling comes slowly) that it might just not get read during this life-time.

Therefore, one is tempted to skip the academic and expert-analysis, and get to the ‘real’ and ‘interesting’ stuff: interviews and recollections, words from the heart (as they say). But on further inspection, skipping becomes difficult, unnecessary: the chapters on history and theory appear like reminiscences and recollections of the respective authors, while those who were interviewed seem to have engaged in historical and theoretical exegesis. Thankfully, the collection becomes interesting; and reading it, not too bad for your health after all.

So, the purpose here is rather simple. In undertaking a brief reading of this impressive collection of essays, my attempt will be to examine some common themes it captures, some of the problems concerning Sri Lanka’s republican constitutions and constitution-making projects, its institutions and political culture, and the different perspectives offered about these matters. And also, it is to examine whether there are any lessons to be learned from this experience. My focus is selective, and the examination of the many chapters is brief, and follows no clear structure or pattern.

A Republic and its Doomed Project(s) of Constitution Making

A book, especially a collection of essays, tends to get read from different places; there are multiple starting points. Sometimes a single page, a single phrase, can give you a fare glimpse of what to expect. Page 4 of this collection will be one such place for many Sri Lankan readers, for it is where one finds the names of both the editor and the publisher, the Centre for Policy Alternatives (CPA). The feeling that much of the book will have critical things to say about Sri Lanka’s constitutional history begins to develop here, for the specific reason that there is a popular perception created within Sri Lanka about the CPA and its advocacy on constitutionalism.

Asanga, admirably, does much to change this perception. He adopts a pluralistic approach, attempting to ensure that a wide range of perspectives are taken on board. But more importantly, he makes his agenda clear: the book is a “liberal democratic intervention in the Sri Lankan debate on constitutional reform” (p. 41). It is a liberal project; so deconstructing the text to show it is so becomes unnecessary too. However, the overarching message of the book becomes understandable, unsurprising: i.e. from its inception, Sri Lanka’s republican constitution-making was flawed, problematic. And the two republican constitutions – adopted in 1972 and 1978 – receive a much deserved hammering. Liberal or left, many are agreed on that.

This, quite simply, is a common theme which gets highlighted in a number of chapters.

For example, Asanga, in chapter 3, provides a “revisionist argument” suggesting why “one of the theoretical bases of the justification for a legal revolution was erroneous” (p. 148). Adding weight to the views of Sir Ivor Jennings, Asanga constructs an argument which holds that while it was inevitable and necessary that Sri Lanka became a republic (as it did in 1972), this transformation should not have taken place in the manner of a haphazard constitutional revolution.

Those who were involved in the process would tell you more. Dr. Nihal Jayawickrama does so in chapter 1, an essay which will be essential reading for those interested in the making of the 1972 constitution. The author is suited for the task; he was the young Permanent Secretary to the Ministry of Justice during that time. His ‘insider’s perspective’ on the making of the 1972 constitution begins with the examination of the 1946 Soulbury Constitution, and proceeds towards a detailed discussion on the making of the 1972 Constitution (p. 58-85). He credits the chief architect of that document, Dr. Colvin R de Silva, “for the bold, idealistic, even romantic, exercise in autochthony” (p. 112).

Yet, the tragedy of this entire exercise was that “it heard and responded only to the voices of those who celebrated its creation” (p. 113). To be sure, it also set the framework for authoritarianism (p. 118-120). This message gets repeated in the essays that follow. Dr. Radhika Coomaraswamy, in chapter 2, states unequivocally that the 1972 Constitution was “a precursor to all the travails that would plague Sri Lanka for the next generation” (p. 144).

That the project of republican constitutionalism was doomed from the very beginning, then, will become clear to a lot of students reading this book. But the student, especially one who has just begun law studies, would have more probing and serious questions to ask: what is it that leads lawyers and law professors to make such a mess of constitution-making and governance in this country? Would not a different set of professionals – agriculturalists, veterinary surgeons or plumbers, for example – do a better job if entrusted with the task of constitution-making?

The Influence of Sinhala-Buddhist Nationalism

Sinhala-Buddhist nationalism has come under come under serious criticism over the past few decades for many of the constitutional problems we are confronting today. The book contains important contributions on this broader topic.

That Sinhala-Buddhism (and Sinhala-Buddhist nationalism) is an imposing presence is clear from the very cover of the book: a glaring reminder of sorts. A lovely sketch depicting ‘the unitary state’ by Sunela Jayewardene adorns the cover; a drawing which will get easily translated as being that of a building which has the structure of a Buddhist temple (a stupa) on top, a Bo-tree behind it. A brilliant way of explaining the character of the Sri Lankan State: unitary, Buddhist, Sinhala-Buddhist.

This is captured in numerous contentious provisions of the two republican constitutions, too; especially those provisions on the unitary state and Buddhism. In this regard, a lucid exposition of Section 6 of the 1972 Constitution (on Buddhism) is provided by Dr. Benjamin Schonthal, arguing effectively that it needs to be read “as a historical product, the legal-rhetorical outcome of unresolved historical desires, grievances and claims which took shape, initially, in the years surrounding independence” (p. 203).

Similarly, understanding Sinhala-Buddhist (or Sinhala) nationalism, is a necessary task. And a number of essays contained in the book provide interesting discussions about different aspects that go on to make this phenomenon. Dr. Michael Roberts provides such an examination in a chapter titled ‘Sinhalaness and its Reproduction, 1232-1818’. In it, Dr. Roberts attempts to understand this phenomenon, concluding by reminding the reader that the Sinhala tendency to equate the part with the whole would be one major obstacle to reconciliation and the accommodation of plurality in the country.

More critical in tone, however, is Dr. Roshan de Silva Wijeyeratne, who provides an ontological account of the Sri Lankan State (at p. 402-440). He identifies, for example, the “Bonapartist strategy” of President Rajapaksa as having its antecedents in the 1972 Constitution (p. 405); the pivotal role played by the Asokan monarchy in the “thoroughly modern moralisation of the hierarchical dynamics of the Sinhalese state”; and that the emerging post-war Sri Lankan State is “a militarised actualization of the Sinhalese nationalist imaginary initially put to brilliant performative use” by SWRD Bandaranaike (p. 432-3). In chapter 9, Dr. David Rampton refers to the Sinhala Buddhist hegemonic character that was embedded in the 1972 Constitution, pointing out that it contained the “seeds of authoritarianism” which later became explicit through the 1978 Constitution and the presidential system (p. 398).

And yet, amidst this bombardment, a lone voice stands resolute, adamant.

It is that of Mr. Udaya Gammanpila (member of the JHU)). In an interview, he provides an entirely different reading of the 1972 Constitution, and about what needs to be done (or not done) in the future. While all this time the reader of this collection would have wondered how best to improve the constitution, what lessons need to be learned, how to share more power with the Tamil people, etc., Gammanpila’s message is that one shouldn’t waste much time on that: “We have already given minority rights well beyond the internationally accepted standards. So nothing remains to be addressed by constitutional means” (p. 930).

Suddenly, our initial reading of Sunela’s sketch was just part of the story. Look again: the sketch is only of a structure. But where are the people, the likes of Gammanpila would ask. Why the empty spaces, is it to leave room to sketch different ‘others’ on a later day? Where is the majority, one would ask. Look closer: why that pencil-line which seems to pierce the Buddhist stupa on top? If the sketch was a map, isn’t this piercing line coming from the North-East? The entire structure, the whole picture, now begins to look haunted, haunting, lonely, inviting intervention. Hence, the observation: there’s nothing more to be addressed. What remains to be addressed is, perhaps, the issue of security.

So, how serious and difficult would the task of constitutional reform be?

Different Perspectives

The critique of Sinhala-Buddhist nationalism leads, almost automatically, to a reaffirmation, or vindication, of the dominant Tamil perspectives on republican constitutionalism in Sri Lanka. And while Sinhala-Buddhist nationalism receives strong criticism, Tamil nationalism does not tend to attract any specific critique in the book. For this, one needs to revert to essays published elsewhere (some of them being written by Asanga, for example). For the moment, however, the message that both forms of nationalisms are narcissistic, self-affirming, and deserve critique, gets articulated most strongly (but briefly) in a delightful post-structuralist/colonialist critique written by Prof. Qadri Ismail (chapter 15).

There are, however, interesting and different insights that get articulated in the book.

Tamil-perspectives

As mentioned above, the critique of Sri Lanka’s republican constitutions receives further support, for example, in the perspectives offered by Tamil politicians. It is perhaps unnecessary to enumerate what these perspectives are, given that the undemocratic character of 1972 and 1978 constitution-making is well known and well documented. In general, apart from the many essays referred to above, the interviews carried out by Luwie Ganeshathasan with Mr. R. Sampanthan of the TNA (chapter 24), Mr. D. Sithadthan of the PLOTE (chapter 25) and Mr. P.P. Devaraj of the CWC (chapter 26) provide useful insights. In addition, Ms. Hallie Ludsin (chapter 7) advocates the need to ensure that the Sri Lankan constitution truly represents “the will and common good of all the people as promised in the constitutional guarantee of sovereignty” (p. 290). She ends the chapter with a discussion on the right to revolt (p. 326-336), essentially arguing that the Tamil people qualify for a right to revolt.

Muslim-perspectives

Another contribution which requires attention today is Dr. Farzana Haniffa’s perspective on the Tamil-speaking Muslim community’s role in Sri Lankan politics (chapter 5). It sets out a neat description of the ‘goodwill politics’ that Muslim leaders have been engaged in. Muslim leaders had stood firm with the country and its people. Mr. Azeez summed it up well: “I would rather trust the majority community of this country than the third party that came from 5000 miles away” (p. 242). Also, the chapter contains a discussion, for example, on the advantages they gained from coalition politics (referring to the work of McGilvray and Raheem) and how, for instance, Tamil nationalist leaders misread this brand of politics, especially when attempting to imagine a politics for the ‘Tamil-speaking’ people in Sri Lanka.

Ironically, in contemporary Sri Lanka, a mindless regime has now taken over (from the Tamil nationalists) this task of misreading the politics of the Muslim community and their goodwill. We might just be witnessing the end of ‘goodwill politics’ of the Muslim community, overturning in the process an old observation made by scholars that there was no need to ethnicise Muslim politics given the positive reception Muslim politicians have had within Sinhala majority constituencies. Perhaps the Muslim community feels, and understandably so, that this is the moment to engage in further ethnicising their brand of politics in the country.

Gender-perspectives

Sri Lanka is credited for having elected the first woman Prime Minister in the world; Sirimavo Bandaranaike. Her daughter, Chandrika Bandaranaike Kumaratunga, later became Sri Lanka’s first woman President. These facts give the outside observer the impression that women’s participation in politics is at a commendable level in the country. These are generally some of the popular facts with which government representatives begin discussions on the recent history of women’s rights protection, or women participation in politics, in Sri Lanka.

But this is just part of the story. The chapters which introduce a particularly gender-based analytical approach provide a different story altogether. This is especially the case as set out in chapter 20, titled ‘Representation in Politics: Women and Gender in the Sri Lankan Republic’, co-authored by Prof. Maithree Wickremasinghe and Ms. Chulani Kodikara.

They reiterate the observation made by certain historians that woman entered electoral politics largely on the basis of a ‘stop gap situation’, wherein women were nominated to contest by-elections either because they were related to male political members contesting elections or because of the death of their husbands who were prominent political leaders (p. 778). While women representation in politics is low, the authors critically argue that “a majority of women parliamentarians have not necessarily evinced a progressive understanding of the women’s issues and concerns” (p. 809).

These perspectives are quite relevant to understanding the contemporary situation. Particularly disturbing has been the kind of contribution that certain women-politicians make on important constitutional questions (very much like their male counterparts, of course). We have witnessed how certain popular actresses (turned politicians) acted when the 18th Amendment was introduced in Parliament, and what they knew (or did not know) about it.

Yet, the responsibility for this sad state of affairs also falls on those party leaders who introduce such women (and men) to politics. This responsibility falls on the shoulders of the likes of Mr. Ranil Wickremasinghe as well. Perhaps what we witnessed during recent times was how popular women were being craftily manipulated by male politicians for political purposes: one, to diminish the popularity of political (male) opponents (e.g. voters would feel amused to imagine Mr. Karu Jayasuriya as a potential national leader after having lost to Ms. Upeksha Swarnamali); two, to fill seats in Parliament so that passing legislation would be made easier.

But the use and misuse of women in politics, we are told, happens everywhere. In chapter 16 (titled ‘Whose Nation? Power, Agency, Gender and Tamil Nationalism’), Ms. Ambika Satkunanathan makes the critical observation that the TNA, as well as the radical Tamil diaspora groups “at best ignore women, their rights and concerns, and at worst use them as propaganda tools in their campaigns” (p. 659).

The Left

Another interesting feature of the book is the space that has been created for the Left. Dr. Kumar David’s is a contribution that sets out a Left (Marxist) perspective on the 1972 Constitution (chapter 8 titled ‘The Left and the 1972 Constitution: Marxism and State Power’). Dr. David concurs that the 1972 Constitution did contribute to the “disaffection of the Tamils and to undermining professionalism in public administration”, but he also argues that had it not been for the massive majority garnered by the UNP, leading to the adoption of J.R. Jayewardene’s 1978 (present) constitution, Sri Lanka would have been “spared the near dictatorial presidential system” which it inherited as a result (p. 363).

There is a certain seriousness with which Dr. David holds the old Left responsible for the 1972 Constitution: “it was a constitution to which the left parties, that is the LSSP and the Communist Party (CP), were inextricably bound. They cannot separate themselves from its conception, gestation and birth; it was theirs as much as it was the child of Mrs. Bandaranaike” (p. 342). But he also argues that some of the general criticisms leveled against that regime – that the shortages, long queues, economic hardship evident during that time was the sole responsibility of the left – are not accurate (p. 361). Quoting from the analysis made by economists (such as Dr. Saman Kelegama), he argues that the global economic climate was anyway in hopeless situation in the 1970s, and neo-liberalism had arrived. He also believes that Dr. NM Perera’s project could have borne fruit: “It would have not been a socialist Sri Lanka, but an economically stable and social democratic one” (p. 362)

Also interesting is Asanga’s epistolary interview with Mr. Lionel Bopage (chapter 27). Mr. Bopage provides insights into the thinking of the then JVP, its policies and approach towards constitutional reform: “the JVP did not believe in constitutional reforms, which it saw as a continuation of the capitalist system of exploitation” (p. 1009) (Interestingly, one notices that today’s ‘reforms’ tend to take place precisely to perpetuate such exploitation). He also reveals what, for some, would be a little known fact: Rohana Wijeweera’s advocacy of the right to self-determination of the Tamil people (p. 1011-1012). The potential of this advocacy was, however, limited given that Rohana was also against separatism. But according to Mr. Bopage, backing away from recognizing the right to self-determination made the JVP a “chauvinistic” party (p. 1034).

Apart from the above, he offers some critical and necessary perspectives concerning religion and the activities carried out “behind the façade of religion” (p. 1013). But it is felt that this analysis needs to be extended to a critique of any and all other symbols, ideologies and things that seem to take the place of religion these days. Dogmatic attachment to views and ideologies – which we see in most religious as well as political representatives, in this case the Left (Marx was against autonomy, or devolution doesn’t solve the problem) – needs to be similarly critiqued.

Lessons for the future (?)

What lessons are there to be learned?

A number of international experts have offered comparative perspectives. In chapter 17, Prof. Yash Ghai examines the recent constitution-making process undertaken in Kenya. It contains, inter alia, a detailed examination of some of the fundamentals of the new (2010) Kenyan Constitution.

Of more specific interest, however, to the Sri Lankan readership would be Prof. Neil Walker’s examination of the unitary conception of the UK constitution (chapter 11). In recognizing its flexible character (for example, its ability to accommodate greater diversity, the political closeness to federalism that devolution-arrangements relating to Scotland and Northern Ireland have come to reflect, etc.), one is better able to understand how inflexible the unitary conception as understood in Sri Lanka is. That all constitutions which are labeled ‘unitary’ cannot be conveniently compared, that they are not the same, becomes clear. In short, an important point to realize is that “the unitary conception of the [UK] constitution has always been a less eloquent and influential statement of the overall character of the constitution than has been assumed or credited by many” (p. 450).

Closer to home, there are broader guidelines set out by many, on how constitutional problems and the ‘National Question’ need to be addressed.

One such is the message of Mr. R. Sampanthan, who heightens the call for the need to develop a broader unifying Sri Lankan identity and nation, wherein “every citizen in [Sri Lanka] is first a Sri Lankan whilst he is also able to preserve his own identity”; one wherein all become “proud, equal Sri Lankans” (p. 958). All such statements coming from the Tamil leadership are to be much admired. D. Sithadthan touches on an invaluable point when he says that Tamil nationalism is a “reaction to Sinhala nationalism” (p. 965). Recognizing this (if it is meant to be read as an admission that both the dominant Sinhala-nationalist and Tamil-nationalist narratives on territorial ownership have mythical elements in them) is perhaps one sure way of being able to begin a more useful discussion on the ‘National Question’. But who shows the willingness to do this, today?

There are, also, some other matters which should not be forgotten: like writing and drafting constitutions.

Mr. Nicholas Haysom provides an analysis of nation-building in divided societies (chapter 22), and writes, inter alia: “The constitution can be drafted in a manner that allows ordinary people to read and understand it, even though writing simply is more difficult than writing obscurely” (p. 892). Inspired by Buddhist teachings, Dr. Jayawickrama argues against constitutional rigidity, the need for constant review and revision, the ability to respond to the changing needs of society (p. 121). The constitution should be sufficiently flexible to accommodate different views.

This is a most useful suggestion, which I admire. However, at the risk of sounding ‘nihilistic’, certain limitations need to be factored in too. Flexibility, for example, is not a characteristic that we can deliberately impose upon a word, a phrase or a constitution: i.e. rigid and flexible words never exist in separate compartments like goods in a supermarket store, waiting to be picked or left alone. There is no way of differentiating the rigid and the flexible. And one returns to the Buddha-teaching, if necessary, to realize that marvelous things could happen when words and phrases fall on the laps of judges, lawyers and academics who are, after all, guided by greed, hatred and delusion. Something flexible can become utterly rigid, and that which was thought to be rigid turns out to be very flexible. As Prof. Ismail states, “any text could have an infinite number of readings” (p. 570, footnote 13). Much depends on who does the reading, or interpreting of the constitution in question, and under what circumstances.

To address these problems, Dr. Jayawickrama would refer to two more important lessons he has set out: one, no political party should arrogate to itself the power to draft constitutions; and two, a government, in particular, should not assume such a right (p. 120-121). These are laudable sentiments, no doubt. But in response, the question that needs to be raised is: is this really practical within the contemporary political culture and framework? Is this system meant to promote unity? Going beyond the critique of politicians and political parties, the question is: isn’t the very structure and foundation that we are operating on, a rotten one? If then, would mere tinkering do, or would the call for unity be practical? Isn’t there a need for radical reform and rethinking about the very political foundations we’ve created?

Lessons about the past: ah, the good old days

The lessons we are supposed to learn are good, but it seems that further rethinking is necessary. The problem, it is often said, is our inability to learn lessons. But sometimes, the very lessons appear problematic. Therefore, Asanga’s book provides lessons about which we need to do more thinking; and for now, we are perhaps left with lessons about lessons, or further questions about lessons.

But interestingly, one thing the book does, perhaps unwittingly, is severely question the tendency some commentators and learned men have of romanticizing the past. Today, there are many who attempt to point out that the brand of politics our politicians were engaged in, the kind of diplomacy our diplomats carried out (that’s a debate which takes place in the media quite often these days), the kind of justice that our judiciary meted out, the kind of social and cultural ties that our people had – that all or many of them were qualitatively better those days (the good old 80s, or the 70s, or before) than the present.

Such claims are highly questionable. Not only does history teach us that each decade brought with it some critical and adverse development (80s – the 1983-July pogrom, and the massacres especially towards the end of that decade; the 70s – adoption of two republican constitutions and rise of secessionism; the 50s and 60s – Sinhala-only, broken political pacts, etc.). And not much seems to have been better with the judiciary or our political practices, too (well, they couldn’t have been if the record reads something like the above one).

So, for example, the judiciary: was it, or its decisions, qualitatively better and democratic in the past (or is it safer to say, as Mr. Rohan Edrisinha recently noted in a lecture, ‘good in parts and bad in parts’?)

The book provides some clues. For example, we are reminded of how the Supreme Court responded to C. Suntheralingam on two occasions; once when he approached the SC to obtain a writ of quo warranto and injunctions to restrain the continuation of the proceedings of the Constituent Assembly, which was rejected by Chief Justice HNG Fernando on the basis that the question of whether the petitioner’s rights and privileges were infringed did not arise until and unless the proposed new constitution was adopted (p. 77); and secondly, when he approached a Divisional Bench of the Supreme Court and applied for an interim injunction to restrain the Prime Minister from continuing with the process of replacing the constitution, which was refused by the Bench (which included Justices Alles, Deheragoda, and Rajaratnam) on the basis that the law did not permit such a grant (p. 82). So the old judiciary was also engaged in ensuring and maintaining the status-quo. The practice continues.

Take another example, which concerns the political cultures of different eras.

Dr. Radhika Coomaraswamy, for instance, makes the interesting point that: “The radical difference between the 1947 parliamentary elite and the MPs of 1971 was that the latter were unschooled in the customs and conventions which made Parliament the ‘self-restrained’ sovereign body of the people. They brought with them a sense of Parliament as an instrument to achieve certain ends. They were therefore easily manipulated by the party leaders in support of any Machiavellian scheme of power” (p. 131).

And yet, is there any meaningful difference in these two cultures, given that the elite groups representing both eras were always engaged in the achievement of “certain ends”. Of course, an argument can indeed be made that the quality of the debates that members of this old school (and generation) were engaged in, their fluency and articulation, their knowledge of various subjects and disciplines, all of that was far superior (more polished, it is said). But this takes us nowhere. New questions need to be asked: where did all that grandeur lead us, or where did the sophisticated old elite take us to? Undoubtedly, there were well-meaning politicians. But there are always well-meaning politicians in every generation, in ever era, in every party. So what is it that we really mean when we say that politicians of era X were less manipulated by power-politics than the politicians of era Y? Are we to hold, for example, that the 1947 Parliamentary elite was not responsible for where we are today?

And how did certain groups of people feel?

For example, there is the famous Section 29(2) of the Soulbury Constitution; a provision which is often considered as some sort of a saviour of the Tamil people from being subjected to discriminatory legislation. But it would be highly contentious if one proceeds to argue that the Tamil people felt comfortable with this provision, or that they felt comfortable that it was at least there on paper. So, Dr. Jayampathy Wickramaratne, another expert on constitutional law and human rights, in a useful chapter (titled ‘Fundamental Rights and the 1972 Constitution), states why the absence of a provision similar to Section 29(2) – which was “absolute” and was “in the nature of a group right” – in the 1972 Constitution was problematic for the ‘minority’ groups. But then this is immediately followed with the statement that even though Section 29(2) was not effective as was expected, “numerically smaller ethnic and religious groups nevertheless felt comfortable that it existed, at least on paper” (p. 770).

But, how accurate is this? Did they feel comfortable, and to what extent? Even after (as Asanga argues) Section 29 had “failed completely to afford any fetter at all to majoritarian legislation” (p. 176)? D. Sithadthan for instance claims during his interview: “I really do not understand why we talk about Section 29(2) as a protective measure for the Tamil people. I do not think it was effective at all” (p. 970).

When viewed as a continuing process, then, the past that often gets celebrated and romanticized in very subtle ways has been problematic, just like the present. Applying the notion of conditioned-arising to the present context would teach us, for example, that no one elite group or generation can evade responsibility. Political hypocrisy, the craze for power, problems of governance – all were very much part of the politics that past generations were engaged in, too. This is perhaps the best lesson we can learn from Asanga’s collection.

Conclusion

Reflections on Sri Lanka’s constitutional history, theory, and practice can be like that. They teach us strange lessons, tickle us in numerous different ways, and we end up with mixed emotions. We are, in a sense, back to square one.

It’s the kind of feeling you might get when thinking about the great hope for constitutional reform we are considered to be having these days. To save us from the Rajapaksas, there comes a familiar figure, Ven. Maduluwawe Sobitha with a document full of good and beautiful promises. There is light at the end of the tunnel, one tends to think. But sometimes we realize that that’s no light: it could well be another train. And we get the point: there is still the need to meet the Mahanayakas, there is still the need to remain silent about devolution, there is still the need for the robed monk to lead us to political and constitutional liberation. We are just entering the same room through different doors. And there’s your lesson on the constitutional history, theory and practice concerning Sri Lanka, in a nutshell.

We’ve known this for so long, but given our infatuation with drafting constitutional documents, we simply miss the point: what we need is not a new constitution but a new people. Or rather, we need both, but without the latter, nothing will ultimately work out. Asanga’s commitment to, and expertise on, constitutional affairs should make him a prominent player in any future exercise concerning constitution-making in Sri Lanka. He is more than suitable for such a task. But his task ought to be a far more serious one: it is not simply a case of playing a prominent role in constitution-making, but more importantly a case of playing a critical role in creating a new people too. That calls for a greater involvement with the people. For that, I believe, a time will come.

Photo courtesy The Nation

“And what rough beast, its hour come round at last,
Slouches towards Bethlehem to be born?”

‘The Second Coming’, WB Yeats (1919)

Must the Sri Lankan citizenry accept or acquiesce in the sacrifice, even in peacetime, of due process and civil liberties at the altar of an absolutist model of security?

The state, or rather its hard-core and its propaganda apparatuses, has sallied forth to defend its conduct in the Azath Salley affair. Unpacking its aggressively defensive discourse, many things stand revealed.

Firstly, that the doctrine of pre-emptive hyper-securitisation has increasingly become the driving doctrine and dominant ideology of a democratic, pluralist state.

Secondly that the arguments used to justify the handling of Azath Salley, reveal that the lessons of the recently ended protracted conflict have not been learned.

Thirdly that those lessons which are being trotted out as deriving from the thirty years war, are completely at variance with the conclusions of the Lessons Learnt and Reconciliation Commission.

Fourthly that the doctrine now enunciated is asymmetrical with the norms and practices of any civilised democracy, most especially those of the Commonwealth that we are gearing up to lead.

Fifthly, that the arguments and doctrine now enunciated are portents of a dark and dysfunctional future.

The crucial argument of the state’s security bureaucracy is that Azath Salley issued a call to arms in the pages of a journal in Tamil Nadu. Let us take that head on. Unlike in the case of the mullah in the UK who was detained for incitement of violence, there is no incontrovertible video evidence. There is a statement which has since been contradicted. In the matter of a statement purported to have been made to a publication, a democratic state does not detain the individual for 90 days. It brings him or her in to record a statement. This is all the more so in the event of complaints made against a person. No one can be arrested in a democracy or any society in which the rule of law prevails, on the basis of either an alleged statement or a plethora of complaints. The norm is that he is requested to come down to the station for the purpose of questioning and the recording of a statement. The matter is then referred to the legal officers within the police or in the office of the attorney general who then determine whether there is a prima facie case to move to arrest and detain the individual. That’s called ‘due process’.

Let us assume that Salley did make a statement of a dangerously provocative nature. Who knew about it? Only the readers of Junior Vikatan (and I must apologise for having erroneously identified its editor as Cho Ramaswamy). Who knows about his alleged call to arms now? Only the whole country, all the Muslims in it, and some part of the world. Who disseminated to all corners of the country with far more efficacy than the muezzin at Friday prayers? The Sri Lankan authorities who chose to detain him for it and blare it out for all to read and hear. If not for that miscalculation, Azath Salley’s alleged call to arms would have remained in the pages of a publication known only in parts of Tamil Nadu. I mean, it isn’t like he said it on NDTV.

Beneath the logic of arresting Azath for his supposed statement to an obscure publication overseas, is another rationale. The argument seems to be that what was wrong in the past, what led to the war, is that the state was too soft; not fast and harsh enough. Evidently Prabhakaran should have been arrested for inciting violence. But Prabhakaran never made any public speeches until Sudumalai in 1987. He wasn’t inciting violence on public platforms. In fact he literally disrupted many such platforms on which Tamil nationalist politicians were campaigning. ‘Thambi’ was organising deep underground. The point I seek to make, is that it is dangerously counterproductive to confuse ‘above ground’ political activism and rhetorical militancy, with underground armed activity. The former is legitimate in a democracy.  Erroneous – even dangerously radical– ideas spouted in the public domain have to be countered by correct ideas, not repression.  It is inexcusable that in peacetime, ‘hard targets’ and ‘soft targets’ be confused and treated alike.

A variation in the argument of the hawks, is that Tamil politicians should have been prevented from making provocative statements in decades past, and that had a policy of zero tolerance been embarked upon, there would have been no war. Now that is simplistic on several counts. The Tamil politicians were arrested and detained many times, and that didn’t prevent the armed conflict, not least because it isn’t such elements who practise armed struggle. Furthermore, anyone who pronounces on the politics of Tamil separatism must study its history and that history shows that the nationalist politicians were following the lead of and were propelled by the militant or radical youth movements from below, rather than the other way around. They were echoing the rhetoric from below and from the periphery of society. Intolerantly locking up the mainstream politicians would not have helped, and inasmuch as this was done, it only helped the radicalisation of the struggle.

Another point sought to be made by propagandists is that Salley is a mere City politico-businessman.  If so, why treat him as a major threat to national security? Why assume that a call to arms by him, if he made one, will resonate within his community at all? Why not assume that no one will give a rodent’s rear end about his rousing ‘call’? Why amplify a squeak? Why turn him into an internationally known name? Does this sound logical?

If the counterargument is that post-war peace must be preserved by a crackdown on hate speech and incitement, the obvious question arises as to why no such crackdown was launched against those who hurled vicious abuse and incited hatred against the Muslim community on public platforms and who discourse was followed – and arguably led to –acts of civic violence. Where was the vigilance, due diligence and doctrine of deterrence then? Azath Salley’s rhetorical flourish, in which he was never abusive towards the Sinhalese or Sinhala Buddhists as a community, if at all he indulged in it, came after, not before.

When Sri Lanka was nominated as host of the Non Aligned Conference and chair of the Non Aligned Movement under Madam Bandaranaike there wasn’t a single dissenting voice within that movement or anywhere in the world. As Sri Lanka plans to host the Commonwealth summit, there are. It is highly likely that there will be a global media and civil society campaign which causes considerable embarrassment to this country and further tarnishes its name, as the summit nears. This makes it incumbent upon Sri Lanka to demonstrate that it is indeed suitable beyond a reasonable doubt, in terms of its adherence to and practice of the democratic values, virtues and spirit of the Commonwealth to chair that organization for two years. It is against this backdrop that the Azath Salley saga continues.

I am reminded of the time 29 years ago when I was “shopping” for a church to attend in or close to Harvard Square. After over a month of church hopping, I stumbled on to the church closest to my residence – Christ Church, Cambridge. I had kept it to the end because I was put off by its upper class, elitist image. That church has a long history   going into the British Imperial period. It had been used to station British troops during the American War of Independence, and had bullet holes, carefully preserved, dating back to that war.

Happily for me that church was going through a radical phase under the leadership of the new Vicar, Rev.Murray. The church notice board was opened to militant activists of diverse identity and persuasions, viz, Blacks, Feminists, Gays, Lesbians, Anti-Apartheid, etc. Bishop Tutu(now Arch Bishop) was then persona non grata in most of the US churches, Universities and other major institutions, but had been  invited to speak from the pulpit at Christ Church by Rev. Murray. Bishop Tutu used that pulpit to attack the South African state (then under  Apartheid) and the US state and many US institutions (including Harvard and some other Ivy League Universities) that had chosen to invest in South Africa. Rev. Murray was also able to keep the church doors open  day and night so that homeless who slept on the streets could move into the church and sleep on the comfortable pews in reasonable warmth. In doing so he informed the congregation that some of the homeless would urinate or otherwise soil the expensive pew cushions, which should then be frequently washed. Many did not like all these but put up with  these practices for the duration of Murray’s term of office  .

A Christ Church practice that I particularly liked was Sermon discussions. Every Sunday, immediately after the morning service, the day’s Sermon was discussed over tea and cookies, and everyone was free to participate and to support or criticize. On one Sunday the Sermon was delivered by the Assistant Vicar, and she referred to converting the Heathen.  During the Sermon discussion I said that I did not understand the word Heathen, and referred to Bishop Heber’s hymn and the questions that I raised in the opening paragraph above. Rev.Murray immediately intervened to support me and told his Assistant that the word Heathen had imperialistic and racist connotations, and he therefore never used it. There was consensus  on this point with even the Assistant Vicar agreeing.

I don’t think we should be happy  about Java replacing Ceylon in that Hymn. Are some “natives” more or less civilized than others? I am a Christian but acknowledge that many became (Rice) Christians for material reasons (job for themselves, good schools for their children, social status etc). In a later period some Christians became (Donoughmore) Buddhists for political reasons. Originally, all our ancestors may have been animist. There would have been many conversions of many kinds in every family tree in every country. Such conversions have been going on all through history and it is impossible for us to analyze which of these conversions were genuine and which were not. Missionary activity is legitimate and has been the means by   which entire societies were converted  e.g the conversion by Asoka of Devanampiya Tissa led to most Sri Lankans becoming Buddhists(whether or not they understood Buddhism) . The conversion of Emperor Constantine led to most people in his Empire becoming Christians (whether or not they understood Christianity).Many (not all) of our ancestors would have converted for opportunist reasons. These cannot be now reversed. What we need to do is to seek to prevent illegitimate conversions in the present and in the future.

I know that many feel compelled to become Christians to gain entry to or to further their educational advancement in Christian institutions: others don robes of Buddhist Clergy with similar objectives ( e.g. to enter Pirivenas). Some of these accept their new tenets in  due course and feel no need to revert. But many do revert after achieving their educational objectives. In respect of both process (opportunist conversions and subsequent reversion), I find it difficult to condemn those who feel compelled by circumstances to comply. The blame lies with those who offer such illegitimate inducements. But I also agree with Anoja that those who refused to convert under pressure or for material gain, whether under imperial rule or thereafter are heroic and not vile.

I approach this subject as a political scientist, a former diplomat and briefly a Minister in the Cabinet of the North East Provincial Council. At the overlap of these experiences and roles is what is classifiable as a Realist perspective.

As a Realist, I reject outright three myths about devolution which have been around for a long time but have been resuscitated in the post-war period. Firstly, that devolution in our context is primarily to do with empowerment of the people and ‘the people’ considered without any ethnic connotation. Secondly, that it was to do with the Tigers and now that the Tigers are no more, there is no case for devolution. Thirdly, that it has to do originally and primarily with India.

If I were to put it simply, this is primarily to do with the Tamils and the Sinhalese, or the Sinhalese and the Tamils. In Sri Lanka, there are relatively compact ethnic groups approximately corresponding to certain regions (a point not vitiated by the fact that you have many Tamils outside of the Northern Province); there is an ethno-regional distribution, there is a domestic geopolitics in this country and it’s been recognized throughout at least the 20^th century.

Whatever the history, the formation, this is where we are. This is why S.W.R.D. Bandaranaike, in 1926, writing a set of six articles in the Ceylon Morning Leader, made the point that he knows of no countries which is non-homogenous, which is heterogeneous, that can succeed with a centralized form of administration. That is the basis of the case for devolution. If I may fall back briefly on my old Marxist lexicon, there is a contradiction between the demographic base or substructure, and the political superstructure.

So this is the first reason: It’s about the Sinhalese and the Tamils and how we can peacefully coexist on this island. It is about coexistence and co-habitation. It is an existential question. What are the terms of the political equation that will enable us to coexist politically on this island? So it is not primarily about administration, or anything other than the ethno-national or nationalities question.

The second erroneous argument is that this had to do with the Tigers. Again this is not true because if it were, you would not have had the Bandaranaike-Chelvanayakam Pact of ’57 or the Dudley-Chelvanayakam Pact in ’66. Furthermore, JR Jayewardene would not have seen fit to include in his massively popular election manifesto of 1977, a substantive section about the Tamil people, recognizing that the Tamil people have been driven to the point of “even asking for a separate State”, which was of course a reference to the Vattukottai resolution of 1976. The election manifesto was in 1977 and the Tigers were a tiny outfit at that time. Thus the issue was not primarily about the Tigers and by logical consequence the military defeat of the Tigers does not take away the need for a political settlement.

Thirdly, the argument is that devolution had primarily to do with India. Well, if that is the case, the last time I looked India is still there and political climate is getting even more fraught with the elections coming up in 2014. But if you set that point aside for a moment, the province was publicly agreed upon as the main unit of devolution in the documents of the Political Parties Conference of June 1986, held in Colombo. That conference was under the chairpersonship of President Jayewardene and summoned at the written request of Vijaya Kumaratunga. There were no Indians present. If the detailed blueprint arrived at on this occasion had been implemented at the time, with a five-sixths parliamentary majority in hand, there would not have been an opening for the coercive interventionist diplomacy by India one year later!

So these three myths have to be set aside. Then what is provincial devolution really about? It is very simple. If you want the family, the extended family, to stay under one roof, often you have to build an annex. Otherwise, it just would not work. Now, even when it comes to a nuclear family with children, when you have teenagers, the smart thing is to give them a room of their own and not mess with their mail, their music and stuff like this. Because if there is no recognition of the irreducible minimum space that is required for the individuality of that member of the family, or of that branch of the extended family to grow, then there cannot be a shared overarching space. In short, they cannot live under one roof. This is still more so, when one branch of the extended family has a large number of close relatives just next door, across the wall or the lane. That is the basic, existential case for devolution.

As a realist, I really do not wish to spend time on the old debate of the primary unit of devolution. I think there is a case for subsidiarity but that must necessarily pertain to what is known as sub-unit devolution. However, the primary unit has to remain the province for a very simple reason. As President Jayewardene once said in an interview with my father, Mervyn de Silva, editor of the Lanka Guardian, “The Sinhalese say district councils and no more, the Tamils say a regional council and no less; I say provincial councils.” He said that a little bit late in the day, but that is the point of intersection; the saddle point.

Dismantling the provincial unit can in fact be done in this parliament, but there will be no Tamil takers; not one, not even Cabinet Minister Mr. Devananda. There is not a single Tamil political entity that will agree to the abolition of the province as the main unit of devolution. So it will be unadulterated unilateralism on the part of this or whichever administration that does it. We have had such unilateralism before, with the promulgation of the new Constitution in 1972 and this country and its citizens have suffered the harsh consequences. Whoever attempts it now –and there are loud voices calling for this– have to know that there would be a chain of consequences of such a unilateralism. Therefore, as a realist, I commend that the province remain the primary unit of devolution.

Speaking not only as a political scientist but even more so as a former diplomat, I would say the 13^th Amendment is the only cross-cutting point we have. The Tamil political parties were rather unhappy with the Indo-Sri Lankan Accord. They have yet to grasp and live with the reality that the 13^th Amendment was the best that could be obtained even at a time more favorable for devolution, when India had forcefully intervened, J.R. Jayewardene had a 5/6^th majority in the Parliament (albeit a parliament delegitimized by the coercive and rather fraudulent Referendum of Dec ’82), and there was a strong pro-devolution Left, a Left which made the supreme sacrifice in defense of provincial devolution as a solution to the Tamil question. 170 cadres of Vijaya Kumaratunga’s Sri Lanka Mahajana Party (SLMP), the party of which I was an Asst Secretary and the only party of which I’ve been a member, were killed by the JVP in the civil war in the South.

So, that’s the best deal that the devolution project could and would get, but from ’87 or more accurately from the excruciatingly difficult passage of the 13^th amendment through the courts and the legislature in 1988, the Tamil nationalists, including the non-Tiger or anti-Tiger ones, were not satisfied. The TNA still says that it never accepted the 13^th Amendment in 1987 and the EPRLF even before it took office had already denounced the 13^th Amendment as being insufficient in terms of power. Now, how could they know that until they sat there? How could they know it a priori?  This attitude is why I resigned after four months as a Minister in the cabinet of the Northeast provincial Council, writing an Open Letter to the Chief Minister, which was published in the Sunday Times (Colombo), the Sunday Divaina, etc.

It is of course true that the UNP under Ranil Wickremesinghe set fire to the August 2000 Constitution. But whether it was Mangala Moonesinghe’s Parliamentary Select committee report and the deal of Indian model quasi-federalism in exchange for de-merger that was on the table, or Chandrika Bandaranaike Kumaratunga’s political packages of 1995, 1997, or August 2000, the TNA or those who comprised the TNA today (at the time the TULF) was just not interested or engaged as a peace partner. Even those political offers and opportunities that went, perhaps over-generously and imprudently, beyond the 13^th amendment were just was not enough for mainstream Tamil nationalism. Well, those chances having been forfeited, now the challenge is to defend what is left of the 13^th Amendment. That is what happens when you ‘price yourself out of the market’, which is what has happened to the TNA.

While most of the Tamils would like to go beyond the 13^th amendment, most of the Sinhalese would like the 13^th Amendment to go away. As a realist, my point is that we cannot go beyond the 13^th Amendment at this stage of history even if it were desirable (which it isn’t) because the only way to go qualitatively beyond it is to do something that would require a referendum. If you go for a referendum, that amendment will come down in flames, probably taking provincial devolution down with it.

There are very strident Southern voices arguing that we should abolish the 13^th Amendment and we should not have the elections that have been promised in September 2013. Of course that can be done. If, however, I could put words into the mouths and minds of the Tamil separatists in the Diaspora it would be “go ahead, make our day” because the only thing that turned India away from -pivoted it from- support of the separatist Tamil movement was the Indo-Lanka Accord and its inevitable corollary the 13^th Amendment. That is what turned around Indian policy from its posture of 1983-1987 and put the IPKF against the LTTE. That is what kept India on our side during the concluding stage of the war in 2009, despite the agitation and imminence of elections in Tamil Nadu. The 13^th amendment –both presence and promise– made the difference between the interruption of Operation Liberation in 1987 and the successful termination of the war by Sri Lanka in 2009. Unplug it and the process may go into reverse.

For those who say that they “are not going to give the TNA what they refused to give the Tigers”, well they seem to forget or deliberately obfuscate the fact that the LTTE fought against the 13^th Amendment, it fought the EPRLF, it fought against the Northern provincial council and above all it fought the IPKF because it knew that the 13^th Amendment is not a stepping stone to – still less tantamount to — separatism. Prabhakaran knew that there is no equation between the 13^th Amendment and Tamil separatism; that these are two different things; that the 13^th amendment is devolution within a unitary framework.

The TNA is not happy about devolution within a unitary state, but that’s what we have. That’s the only deal in town and it’ll be a ‘small miracle’ if it can be made to stick. For the Tamils, the challenge is this: either you make this work or you take a walk on the wild side, hope for external assistance to set up something much bigger. That is a dangerous gamble.

As far as the Sinhalese hawks go, I would say OK you can do away with the 13^th amendment, the Northern provincial council, and the election –but are you ready to face the consequences of the morning after? Those consequences involve the remote possibility of Mrs. Jayalalitha as a Prime Minister next year or the far less remote possibility of an administration that is more susceptible to Tamil Nadu influence; the push factor of a Tamil Nadu that is hostile to Sri Lanka than it has been in 1987 when Mr. M.G. Ramachandran was Chief Minister. Is that a risk that Sri Lanka wants to take? Because I repeat, it was only the 13^th Amendment that broke the nexus between the Tamil militant movement based in Tamil Nadu, the use of that as a rear base and patronage from New Delhi. If we remove that, are we willing to risk the reversal of everything that the 13^th Amendment obtained for us in strategic terms? Do we want Tamil Nadu turned once again into the rear base of separatism? Do we want a convergence between the separatist elements of the Tamil Diaspora, the hardcore separatists of Tamil Nadu and a vacillatory administration at the Centre, together with the chill winds we now experience from the most powerful quarters of the West? Is that what we want to do? I mean, can you think of something that is strategically more moronic, more dangerous to our national security, than that?

While I am not a nationalist and would like to consider myself as, among other things, an enlightened patriot with a sense of Sri Lanka’s national interest, I recognize the reality of nationalism, of nationalisms, and I think they have to be accommodated partially if they have to be contained, pre-empting inevitable or renewed collision. The 13^th Amendment is the only framework I see which can do that because if you undo it the whole deal is going to break down. The gap is too wide between the Sinhalese and the Tamils, and the North and the South. So the only deal that I think can be done is what I call the 13^th Amendment with swaps i.e. with mutually agreed upon tradeoffs.

I am aghast about the whole discussion of taking out from the 13^th amendment the powers relating to land. That’s probably the crux of the issue and has been fairly carefully worked out. The one man who has the most intimate knowledge of the Indo-Lanka Accord and specifically the working out of the segment of land, the man who knows most about Indo-Sri Lanka relations and the loop it goes through the Tamil question and devolution, is a member of the Government and amazingly, shockingly, he has not been brought in to this equation at all. I refer to Dr. Sarath Amunugama in whose ministry and with whose active input –when he was Secretary to Mr. Gamini Dissanayake– the section on land powers was very carefully deliberated upon. I urge the administration to bring Dr. Amunugama front and center into helping manage our relations with India and handle the issues of 13^th Amendment and land, because if you take away the powers of land through unilateral legislation, I do not think again there will be any Tamil takers and the whole deal may fall through, with the Tamils falling back on their old tradition of non-violent civic protest and the huge population of Tamil Nadu backing it up.

As President Obama said about peace between Israel and Palestine, everyone knows what the solution is: the solution is the 1967 borders with swaps. He also warned Israel that with the Arab Spring and the uncorking of popular nationalism, demography is moving against it. Similarly, everybody should know that whatever each actor’s notion of the best solution, the only feasible solution to Sri Lanka’s Tamil question is here: it is the 13^th Amendment with mutually agreed upon tradeoffs i.e. the redistribution of the concurrent list. What you need is mutuality, where the concurrent list can be redistributed and some powers can be handed over to the province in exchange for the retention or taking back of certain others.

If we do not electorally reactivate the 13^th amendment in September as promised, Sri Lanka will find that time and space are moving against us; that demography is moving against us and the political dynamics of our large and sole neighbor are moving in a direction that is adversarial towards us. I hope that nobody tries to unplug the 13^th Amendment and not hold the elections this September. We are running out of time.

 (Presentation at discussion series on Constitutional Reform organized by The Liberal Party)