A prophet spoke at the UNESCO in Paris this week, though he joked that having lived for 90 years, he had written thirty pages and found he had been turned into ‘a rock star’.

Stephane Hessel, born in Germany in the year of the Russian revolution, is 95 years old. Anti-Nazi Resistance fighter, concentration camp survivor, diplomat and writer, he was 93 when he wrote a political essay of 13 pages, which grew into a booklet of only thirty pages, called Indignez–vous! In English this means ‘Be Indignant’ while the English language translation has been published under the title ‘Time for Outrage’. Between October and December 2010 it sold more than 600,000 copies. It has since sold a million copies in France alone and has been translated into 30 languages, selling 3.5 million copies worldwide.

The left leaning newspaper Liberation, founded by Jean-Paul Sartre, says the booklet “crystallizes the spirit of the time”. The conservative National Post of Canada says it created “the sort of stir…Emile Zola did when he published J’accuse!” The liberal US periodical The Nation says the text “anticipated the spirit of subsequent student demonstrations in France and Britain as it did a wave of revolt that is challenging dictatorship in the Middle East”. Calling it ‘the Handbook of the Revolution’, TIME.com opined that “Hessel himself is playing the role of instigator and analyst of the rolling wave of protest movements cropping up around the globe”.

In 2011, he was named one of the world’s top thinkers by Foreign Policy magazine.

After Hessel’s booklet, the term ‘indignant’ has become a catchphrase of the nonviolent global movements of resistance against the burdens of the economic crisis which have eroded the welfare and living standards of the people and are widely perceived as un-shared or unfairly shared, and unjust. The Spanish movement which occupied Madrid last year called itself ‘los Indignados’ and the Cuban Minister of Higher Education, the youngest member of ruling Communist party’s Political bureau, opened his address to the high level segment of the UNESCO General Conference of 2011, with the sentence “all over the world the people are indignant about the crisis caused and the burdens imposed by the oligarchic financial system of global capitalism.”

Stephane Hessel was invited to speak at UNESCO by the Working Group on the ‘Culture of Peace’ (a thematic slogan of a former Director General of UNESCO, Frederico Mayor). The meeting chaired by Mohamed El Zahaby, the Permanent Delegate of Egypt who is also the chair of the Non-Aligned (NAM) group at UNESCO, was on the topic ‘Indignez-Vous, An Essential Step towards a World of Peace’.

Stephane Hessel’s father, a German-Jewish writer (who worked with the iconic Marxist intellectual Walter Benjamin on the first German translation of Marcel Proust), and his mother (a Prussian beauty), were the models for the characters in the novel, and later, the famous movie directed by the legendary Francois Truffaut, Jules et Jim.

Stephane Hessel graduated from the University of Paris’ elite Ecole Normale Superieure (ENS), joined the French army, was a prisoner of war of the Nazis, escaped from prison and joined the French Resistance led by General Charles de Gaulle, indignant at the collaboration with the Nazis that France’s Marshal Petain engaged in having declared the so-called New Order which replaced the great universalist slogans of the French revolution – Liberty, Equality and Fraternity–with ‘work, family and nation’. Hessel was 23 years old.

As a Resistance fighter he was parachuted into France, captured and tortured by the Germans and incarcerated in the notorious concentration camp Buchenwald. He escaped while being transferred to Bergen-Belsen camp.

He became a diplomat after WW II and at age 31, helped to draft the United Nations Universal Declaration of Human Rights, working with Eleanor Roosevelt. At the meeting in Paris on Feb 21^st, Stephane Hessel noted that the Declaration was the first official international document to use the term ‘universal’ in its title.

He has been awarded the Council of Europe’s North-South prize in 2004, the Legion of Honour –the highest honour of France–in 2006, and the UNESCO/Bilbao prize for ‘the promotion of a culture of Human Rights’ in 2008.

A strong supporter of the founding of the state of Israel in 1948, Hessel, of Jewish origin, is renowned for his defence of Palestinians under the Occupation, his opposition to the Gaza war of 2008 and his solidarity with the Israeli movement for peace through dialogue. His wife is the author of a pamphlet entitled ‘Gaza, I Write Your Name’ (in a deliberate echo of the poet Paul Eluard’s famous ‘Liberty, I Write Your Name’). In his remarks at UNESCO on Feb 21^st he stridently exclaimed ‘Bravo!’ and clapped in salute to UNESCO’s admission last year of Palestine as a full member, despite the strong objections of the USA.

Speaking at the UNESCO, Hessel  identified as the three main problems facing the world today, the growing gap between the very rich on the one hand and poor and less rich on the other; the dangerous destruction of the ecology of the planet; and the threat of terrorism. He urged rapid reform as the best solution to all these threats.

Responding to my intervention as Ambassador of Sri Lanka during the discussion, Stephane Hessel set out three interlocking theses as observations:

“We are pleased to hear from that beautiful island, Sri Lanka, which has until recently, and for so long, experienced such great violence; violence originating from the various components of the country.

What is vital is that there must be no return to violence. This can be achieved only through the convergence and dialogue of non-violent youth movements of all the component communities.

Of course, the real guarantee of peace lies in the sphere of education, and as long as education does not promote the values of peace rooted in mutual comprehension, it will accentuate the adversarial element between the components and create the climate in which violence may return.”   

Hessel said that he had followed up his path-breaking booklet ‘Indignez-vous!’ with a sequel, bearing the injunction Engage-vous! (‘Be Engaged’ or simply, ‘Engage!’), co-authored with Edgar Morin, a well-known French philosopher associated with UNESCO. He defined a true intellectual as “one who engages himself with an objective greater than himself; a human objective for progress”. In his slim booklet Hessel reiterates his guiding goal as the establishment of “a true social and economic democracy”. He spoke with enthusiasm about a global colloquium which he hoped to organise, bringing together all of the non-violent resistance movements of ‘the indignant ones’.

When asked by a participant at the seminar for his prognostication concerning the current period of global crisis and instability, he said: “People will increasingly refuse to accept the unacceptable”.  And then, the 95 year old Stephane Hessel skipped nimbly out of the UNESCO hall with the agility and zest of a frolicsome teenager, announcing that he had to give an interview to a radio station.

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Photo via CBS News and courtesy AP Photo/Ivor Prickett Sunday Times

“Journalists covering combat shoulder great responsibilities and face difficult choices. Sometimes they pay the ultimate price.” – Marie Colvin

A few days ago, I was in a conversation with a fellow journalist and a human rights activist with regard to establishing an initiative in response to the unfolding developments in Sri Lanka. We discussed which journalists, experts and academics we could call to help us in our struggle. A name that immediately came up was Marie Colvin. While taking a reflective walk after the discussion, I decided to contact Marie Colvin through another foreign journalist, and I even decided to speed up my postponed trip to the UK. I went online in the morning to book the ticket, but just before I booked the ticket, I checked the news and I could not believe what I was reading - Marie Colvin had been killed in Syria, along with French photographer Remi Olchlik.

I never had the privilege of meeting Colvin in person, but she was the first Western journalist that I highly respected due to the calibre of her work and outstanding courage. It was in 2001 – eight months before I began my life as a journalist – that I heard about her. Her black eye patch was her badge of honour. Exactly ten years ago [22 Feb 2002], a Ceasefire Agreement (CFA) was signed between the Government of Sri Lanka [GSL] and the Liberation Tigers of Tamil Eelam [LTTE]. It led me to go back to my nation and see my parents after an absence of five years. Marie Colvin was also trying to contribute to creating a peaceful situation between the nations on the island of Sri Lanka.

Since the bloody war came to an end in Sri Lanka in May 2009, she began to play a crucial role in the pursuit of truth and justice. This role was at the core of her journalism. In the early hours before the war came to an end, she tried – to the best of her ability and with what available avenues were left – to save at least a few lives.[1] She valued lives irrespective of whether they were combatants or non-combatants. Her last report from Syria expressed her unbearable pain at the death of a little baby. The day before her death, Colvin reported about the shelling of a city in a video for the BBC, as well as for CNN, in which she described the bloodshed as “absolutely sickening.” “I watched a little baby die today,” the award-winning reporter said, and it was “absolutely horrific.”[2]

In addition to exposing human tragedies, she drew the world’s attention to the real face of brutal regimes, including in Sri Lanka and finally Syria. It is noteworthy that I went for my first media assignment to the Vanni in April 2002, where the LTTE leader publicly addressed local and international journalists. Two days prior to the press conference, I went with several foreign and Sinhala journalists to a few other places for additional news coverage, including getting the people’s views on the CFA and their lives in Vanni. On that occasion, I played a dual role: I was a journalist and interpreter for Sinhala and international journalists and I was helping the journalists in Visvamadu in the Mullaiththeevu district. During that time, a foreign journalist asked me to help him interview a small business owner. I agreed and talked to the interviewee and informed him that the foreign journalist would like to interview him. The owner agreed with a smile, before pausing to ask a question: “does he know Marie Colvin”?

Since I heard about the tragic death of Marie Colvin, I have had a series of conversations with journalists, activists and INGO workers. All of them are deeply saddened by her death. An example of her commitment to her profession was the role that she played in East Timor. An article by the Telegraph captures Colvin’s intrepidity,

“In East Timor in 1999, for example, as Indonesian troops closed in on a United Nations compound in Dili where 1,500 people had taken shelter, the UN wanted to pull out and leave the refugees to their fate. Marie Colvin and two other female journalists remained in place, defying the UN, and the world, to do nothing. Eventually, shamed by the courage of the reporters, Indonesian forces allowed the refugees to leave and the international community stepped in. Marie Colvin’s presence undoubtedly helped save many hundreds of lives.”[3]

In my opinion, Marie Colvin was not only a journalist, but a peace maker, committed to finding truth and eventually bringing about justice through her reporting. She was committed to a way of life that was informed by her ideals.

She died for a cause that matters to all of us today.

• Is ethical and balanced journalism needed?
• Fighting the PR War
• Remembering Sivaram
• The Reckoning: Press Freedom in Sri Lanka
• A response to “News websites caught red-handed doctoring video to make president look racist”

Image from Transcurrents

In the past 5 months – October 2011 to February 2012 – there has been a disturbing rise in the number of abductions, especially in and around the capital, Colombo. Out of 29 abductions and 3 missing persons reported in media, most have not returned to their homes and families, rendering them ‘disappeared’ persons.

The manner of these abductions has sent alarm bells ringing within the Sri Lankan human rights community, recalling the twin phenomena of the ‘white van’ and the unidentified gunman’ which plagued the country in the period from 1987/1989, and which prompted two visits to the island by the UN Working Group on Enforced and Involuntary Disappearances in 1991 and 1992.

The discovery of a charred body of a man on a small street in Narahenpita, Colombo 5, on the morning of February 13 has served to heighten these concerns. There have been 10 bodies discovered in February in addition to the 7 abductions and one missing person in Jaffna who was later found dead.

Among those abducted have been social activists, businessmen and those identified by the Police as criminals and ‘underworld’ characters. Labeling abducted persons as belonging to the underworld points to a disturbing new element of ‘social cleansing’, which is being used to garner public support for these killings and to divert attention from the fact that these abductions are an expression of the collapse of the rule of law in Sri Lanka.

The abduction and killing of individuals from the so-called underworld can be in some way linked to the public altercation between ruling party MP Duminda Silva and Presidential Advisor and former MP Bharatha Lakshman Premachandra, in which the latter was shot and killed. Some of those abducted, ‘disappeared’ and killed were linked to these two individuals and were either suspects or witnesses to the shooting, which took place on October 8 during campaigning for local government elections in Colombo.

Amongst others who have been abducted are those who have in any way challenged the authorities on issues of impunity and on-going human rights violations. Lalith Kumar Weeraraj and ‘Kugan’ Muruganandan, two political activists, were abducted in Jaffna on December 9, while engaged in preparations for celebrating Human Rights Day. On February 11, Ramasamy Prabaharan, a Tamil businessman was abducted in Colombo, two days before a fundamental rights case filed by him against the Police was due to be heard. Mr Prabaharan, who was released from prison in September 2011 after two years in detention without any charges being filed against him, was challenging this arbitrary detention and torture while in custody; he had received threats asking him to withdraw the case. On February 12, Chandrapala alias Mervyn, who had been brought to Colombo’s court complex in Hulftsdorf for a bail application, was abducted in the vicinity of the Courts while being accompanied by Prison Guards. A full list of the 32 abductions which have been reported in media is attached.

Most of the abductions have taken place in broad daylight, in the capital, Colombo, and in its suburbs. 4 are from Gampaha district, close to Colombo. All 3 missing cases and 3 of the abductions have taken place in the North, with 5 in Jaffna. Of the 32 abducted and gone missing. 7 bodies were found in public places; most of them bore marks of execution. One body was found on the east coast following abduction from the Western province. 5 persons have returned home.  In many cases the Police investigations are inconclusive and pending. Out of the 32, one has been identified as a woman, two are not clear and 29 have been identified as men.

Abductions Since October 2011 in Sri Lanka – Summary List scribd.com/doc/82834794/A… #lka #srilanka @UN_HRC

— Groundviews (@groundviews) tweeted:

Dead Bodies Found February 2012 in Sri Lanka – Summary List scribd.com/doc/82834793/D… #lka #srilanka @UN_HRC

— Groundviews (@groundviews) tweeted:

• The abduction, assault, arrest and defamation of the Sudar Oli Editor: Questions for the Sri Lankan Government
• Students Missing In Jaffna
• SRI LANKA’S TRAGEDY
• My abducted brother found in Colombo National Hospital
• Disappearances of Persons in Sri Lanka

[Editors note: Also listen to podcast by author here.]

The end of the war is certainly not the end of the conflict that led to the military confrontation between the military forces of Sri Lanka state and the Liberation Tigers of Tamil Eelam (LTTE). This conflict surfaces in different guises, the military episode being only one. It is well-known that conflicting interpretations of the past of the island by conflicting parties is a major factor in the conflict.[1] When the military confrontation was the dominant form of the conflict, the importance of other forms were less evident. With the military episode completely over, non military aspects of the conflict are again coming to the fore. It is in this context that the renewed role of “history” in the Sri Lanka ethnic conflict has to be discussed.

In the collective imagination of the ‘Sinhala-Buddhist South’, the ‘Tamil North’ occupies a very special place. In short, it is a place to be conquered and occupied. To the Sinhala-Buddhist mind the “North” is very much part of the Sinhala-Buddhist territory. This territory has long been illegitimately occupied by Tamils, or, according to more sophisticated versions, occupied mostly by former Sinhalese who have metamorphosed into Tamils following some maneuvering by elite groups and European colonial rulers. Sinhala nationalist propagandists such as Nalin de Silva and Suriya Gunasekera have been the most vocal and strident proponents of this view.[2] Although this explanation is restricted to a limited group who are very well familiar with their literature, there is a general consensus among ordinary Sinhala-Buddhists about the Sinhala-Buddhist ownership of the North.

This Sinhala-Buddhist perception towards the Tamil North is very much part of the ideology of the Post-Colonial Sri Lanka state. In this ideology, the territorial integrity of the state is articulated in a very special way. In the minds of the Sinhala-Buddhist, “Lankawe ekeeyabhwaya” (Unity/unitariness of Sri Lanka) is not a notion of modern territorially based statehood or constitutionalism, but a historically constituted notion that is well represented in the Sinhala-Buddhist parlance “dedahas pansiya wasarak tisse pevethi ekeeya rajjaya” (United state that existed for the last 2500 years).

The notion of island (dvϊpa) formed part of the ruling ideology of Anuradhapura, at least at the time of the compilation of the Mahawamsa in the 6^th century CE. Apparently there were two sources of this ideology of ‘islandness’. One is the outsiders’ perception where the geographical entity was identified as a social entity as well. For reasons that are not clear, a powerful group of inhabitants in the island, at least a section of which formed the ruling elite of Anuradhapura, came to be known as sīhala and the island was named by many outsiders as the ‘Island of sīhalas (sīhaladīpa or its variant serendib as pronounced by Arabians). The other source of this ideology is the world view of the bikkhus (community of Buddhist monks) who were a decisive social group in the pre-modern historical development of the island. The idea that the ‘island’ is the place destined to preserve Buddhism in its pure form for five thousand years was central to the world view that was propagated by a dominant section of the bikkhu community, who were probably close to the ruling elite. The notion dammadϊpa perfectly encompassed this world view. Attempts were made through mythical traditions to link this world view with the wishes of living Buddha himself, where he prepared the island for the ordained task by visiting the island three times and asking the god sakra to protect Wijaya and his retinue.[3]

Through the articulation of this ideology, the post-colonial ruling elite sanctified the existing territoriality of the state. In the context that the existing territoriality is being constantly put into question by the Tamils not only though alternative ideology but also politico-military means, upholding this sanctified tradition is immensely significant.

Although the comprehensive military victory over the LTTE was celebrated on a massive scale and the entire Sinhala-Buddhist populace responded to it as if they achieved the ultimate victory over the Tamil North, there is also wider acceptance, at the same time, that the mission is not fully accomplished.[4] There are a number of fronts to fight in: taming and de-nationalizing Tamil politics, discrediting the Tamil Diaspora, changing the demography in the North, etc. In addition, the reconstitution of the “historic” Sinhala-Buddhist North (and East) is also recognized as a prominent task.

Post-war politico-ideological interventions in relation to the North are fascinating and quite significant. Apart from continued military presence and “development process” as defined by the Sinhala state in line with neo-liberalism, there are other ideologically driven interventions. Pilgrimage has become one such phenomenon. Sinhala-Buddhist pilgrims who are flocking into Jaffna peninsula in large numbers I will argue are engaged in a politico-ideological act rather than a religious act. Beneath the official rhetoric of bringing about ethnic harmony through North-South people to people encounters, these pilgrimages reproduce conflicting interests between Sinhala and Tamil ethno-nationalist identity politics. Although pilgrimage has provided much needed economic benefits for the North, they have at the same time created a sense of anxiety among politically and ideologically conscious Tamils.

The major ideological inspiration for these Sinhala-Buddhist pilgrims is arguably the discourse of “Sinhala-Buddhist heritage in the North and East” (uturu negenahira Sinhala bauddha urumaya). The most vigorous propagators of this ideology, with the moral, institutional, material and political support of the state and, particularly unofficial backing of the military, became very active in the post-war context. In their point of view the most important task of the post-war reconstitution of the North (and East) is to re-establish the historical rights of the Sinhala-Buddhists in this territory.[5]

Photo courtesy Transcurrents

As permanent residents of the North territory are unlikely to be converted to the Sinhala-Buddhist ideology, the strategy that propagators of the Sinhala-Buddhist ideology have adopted is to create an alternative and parallel space of social relations in competition with that of Tamils. It is possible to compare this strategy with the one that Sinhala-Buddhists have adopted in relation to Buddhist sites in India.

Buddhist sites in North India and Nepal, for which Sinhala-Buddhists use the name dambadiva form a part of the imaginary Sinhala-Buddhist territory. Dambadiva, as found in the Sinhala Buddhist imagination, is not a location of the geography of South Asia. Therefore dambadiva vandanava is a pilgrimage to the imagined part of the Sinhala-Buddhist territory. Moreover, this is not a visit to a foreign land either. The usual term rata yanava (going abroad) would not be used for this journey. It would simply be referred to as dambadiva yanava (going to dambadiva, not even ‘going to India’).

If the ultimate realization of the Sinhala-Buddhist territoriality in relation to dambadiva is the pilgrimage, the case of North-bound pilgrimage is different. As mentioned at the beginning, the North, unlike dambadiva, is, in the mind of the Sinhala-Buddhist, a place to be conquered and occupied. If they are satisfied, in the case of dambadiva, only with preserving Buddhist sites in India as pilgrim destinations, something more has to be achieved in the North. As a religious act of ordinary devotees, pilgrimage to the North is of course an end in itself. For the politically and ideologically conscious pilgrims, this is more than that. They are quite conscious of the broader significance of their journey. They share the view that the historical sequence that linked the modern Sinhala-Buddhist with early Buddhist affairs in the island has been broken in the North by way of de-buddhisization and de-sinhalization and its Sinhala-Buddhist heritage has to be re-established.

The decisive feature of this post-war Sinhala-Buddhist imagination of the North is that it is solely based on the historical consciousness of Sinhala-Buddhists and runs completely against the Tamil nationalist and Southern non-nationalist political imaginations of the post-war North. In particular, it runs against the notion of ‘traditional Tamil homelands’ which is the political core of the Tamil historical consciousness.

There is an important factor that gives an extra advantage to the Sinhala-Buddhist historical consciousness. The historical narrative that is linked with the latter is generally compatible with the dominant paradigm of the modern historical scholarship in Sri Lanka. That is the reason why dominant figures in the Sri Lankan historical scholarship such as K.M. de Silva have questioned the ‘traditional Tamil homeland’ theory as mythical and grounded in political interests of Tamil nationalism, without trying to question the mythical basis of the dominant paradigm, which supports the Sinhala-Buddhist consciousness and the political interests of the Sinhala-Buddhist ruling elite.[6]

Conclusion

From the point of view of a post-war reconciliation that should accommodate the legitimate demands of Tamils in the North and East, the renewed importance of ‘history’ in shaping the post-war dynamics of the ethno-political conflict will certainly pose a major challenge to those who wish to overcome the horizons of nationalist imaginations in a new post-war rethinking of politics. In a context where extreme Sinhala-Buddhist nationalism is unprecedentedly strong and ideologically aggressive, providing the ideological support for the political system that excludes Tamils, the need to build an alternative discourse of history becomes more than a naïve academic pursuit. It is a profound political and ideological task that has to be given a high priority.

###

This essay is part of a series on the theme of post war reconciliation, justice and development initiated by the International Center for Ethnic Studies, (ICES). Colombo. The views expressed are the author’s own and does not necessarily represent the views of the ICES.

• History after the War: Challenges for Post War Reconciliation (Podcast)
• Dr. Devanesan Nesiah on post-war / post-LTTE Sri Lanka
• Politics of Sinhala Nationalism: Underpinning of the UPFA Victory and Undermining of the Sri Lankan Nationhood
• The ‘post-LTTE’ misnomer
• A question to the government and the LTTE

This podcast is based on History after the War: Challenges for Post War Reconciliation penned by the author. As noted in the article,

From the point of view of a post-war reconciliation that should accommodate the legitimate demands of Tamils in the North and East, the renewed importance of ‘history’ in shaping the post-war dynamics of the ethno-political conflict will certainly pose a major challenge to those who wish to overcome the horizons of nationalist imaginations in a new post-war rethinking of politics. In a context where extreme Sinhala-Buddhist nationalism is unprecedentedly strong and ideologically aggressive, providing the ideological support for the political system that excludes Tamils, the need to build an alternative discourse of history becomes more than a naïve academic pursuit. It is a profound political and ideological task that has to be given a high priority.

Nirmal Ranjith 2012 Feb 21(1)

• History after the War: Challenges for Post War Reconciliation
• Politics of Sinhala Nationalism: Underpinning of the UPFA Victory and Undermining of the Sri Lankan Nationhood
• Tamil Diaspora in Post-War Sri Lanka
• The Third Option
• The Tamil Issue: The Political Football of the Presidential Election

Photo courtesy Lanka Standard

“Although certain foreign powers have attempted to conspire against and oust me from the presidency, I will not leave this position before completing my duties” – President Mahinda Rajapaksa (Ada Derana Online / February 19, 2012 01:27 am)

That perhaps is the easiest of the answers possible for any Head of State under pressure from his own people who voted him to power and from the international community, to explain his own dilemma. The Resolution proposed to the UN Human Rights Council’s19 Session will pressure the Rajapaksa regime to honour it’s own Commission’s Recommendations, while Chilaw now, after Katunayake FTZ workers’ agitations on May 24 and 30 last year, followed by local vendors and rural farmer protests against plastic container rule, turns a wholly new militant page on protests against this Rajapaksa regime, albeit glib talk about foreign conspiracies. Anthony Fernando from “Wella” fishing village, a protester in Chilaw died of police shooting on Tuesday while three others were critically injured. These protests were very militant and continued for six consecutive days and still continues, despite the top leadership of the Catholic Church wanting to pacify its parishioners along the coast.

One day before Anthony’s funeral, a joint Opposition call for a protest in the Fort on Friday afternoon had more numbers and militancy than there was before. The UNP was not very effective with previous protests. By late afternoon, this protest gathered momentum to sustain itself much longer than the UNP wanted it to be, even after police tear gasing. The protests are definitely growing and growing militant too. Shocking price increases in all fuels, electricity and gas that provoked a private bus owner strike and a fare hike as well within just 03 days, have shaken the people out of their “patriotic slumber”.

Certainly not world prices

This price hike was not provoked by any significant price increases of fuel, in the global market. The maximum price this same regime stubbornly stuck to, despite a Supreme Court order, was Rs. 125 per litre of petrol and Rs. 76 per litre of diesel, when a barrel of crude oil in the world market was around USD 145. That was despite all the wheeler dealing with the infamous hedging in petroleum was being talked of. In October 2011 when the government increased prices to Rs. 137 per litre of petrol, Rs. 84 per litre of diesel and kerosene to Rs. 73 per litre, the price had dropped to between USD 82-87 per barrel of crude oil, from its previous USD 145 per barrel. This time round, the world price of a barrel of crude oil was around USD 93-97 when this sudden huge increase in fuel prices were announced.

The Iranian embargo does not seem an urgent reason for the present increase either. One major reason for such increase is in the depreciation of the SL Rupee from 110 to a US Dollar, to 121 per Dollar and expected to keep falling. It effects all goods transport and bakery and confectionery products too, with bread already hiked. All imports to the country from wheat to sugar to the Berri Apple in Super markets will now be on the hit list. Despite what Cabral had been saying and now says, the forced reinforcement of the Rupee value at the expense of reserves, became impossible to continue with. The economy is in to a dizzy spin and lets be clear on this too. Its neither Cabral at the Central Bank nor Jayasundera at the Treasury that has to take responsibility to this chaos. Its President Rajapaksa, both as head of the government and as its Finance minister, who has to take total responsibility.

Locally, no subsidies given to agitating social sectors can hold the prices down to bearable level. Subsidies given to any sector is an economic burden to all others. On a reverse argument, if the government can afford subsidies to so many sectors, then there was no reason for such punching price hikes. Though ordinary citizens will not be able to understand and explain these economic moves,  common sense and past experience tell them, their earned  income would no more sustain their families for 30 days even at the lowest standards of consumption. That they can not now harvest fish nor engage in livelihood practices as before. Well if MPs can not live on 90,000 plus and plus rupees, how would a worker, leave alone his family, survive 30 days with a minimum wage of 6,900 plus 1,000 rupee budgetary allowance ? Buying power shrinks. So are markets then.

String of protests with more on the cards

This comes in the wake of many protests triggered by the first joint protests by the Joint Trade Union   Alliance over the private sector “Employees’ Pension Fund” Bill, brought to parliament. A well organised protest, especially in the FTZs, shattered the myth that this regime can never be challenged with its “Gulliverian” majority in parliament. Two thirds majority in parliament could do nothing and the government folded its Bill, accepting defeat at the hands of organised labour.

These workers played catalyst in protests that next provoked vegetable and fruit vendors, farmers in North Central Province and traders in Pettah to stage protests against the regulations that barred transport of perishables in gunny bags. The government was once again forced to back down. The regulation was basically withdrawn,with the government saying it is operative but not enforced.

The “Z” score then exploded as an issue that shook the urban and the rural middle class. Their remaining faith in free education as a vehicle of social mobility for their children, was rudely shattered. Protests were nevertheless short. They did not get into militant street agitations as the other previous protests. The middle class seldom gets into such militant moods and the Teachers’ Unions themselves were not capable of leading effective protests. The government is thus happy they went to Hulftsdorp instead. But, its the faith, the loyalty the Sinhala middle class pinned on this regime that seriously eroded, with the “Z” score mess.

Breach of trust and the Sinhala support

All of it keep the people agitated and questioning the very integrity of the leader they thought was patriotic enough to take care of them. They now feel the heat on them, not only with the increasing burden of CoL, but also in not having a judiciary they could eventually go to, for justice. In seeing police stations being attacked by locals for custodial killings and seeing police being accused for contract killings and rampant corruption. They see arrogance of power around them and against them.

All of it keep the Sinhala society experiencing the taste of police and military crackdowns in their most ruthless fashion. Its not what this Sinhala society thought would be their share of the “peace dividend” two and a half years after the war. A war, they willingly accepted with very patriotic rhetoric. That breach of trust is what actually challenges this regime. It is that collective feeling of being cheated, which adds to the already growing crisis in society. It is thus the very support base that is now going into a collision course with the regime.

Adding onto pressure overseas

With such social suspicion and pressure within the Sinhala society itself, the international campaign on war crimes and accountability gains strength. The US initiated Resolution to the 19 Session of the UNHRC now on in Geneva, calls for a clear time frame in implementing the LLRC Recommendations. The Resolution concludes by saying,

Expressing concern that the LLRC report does not adequately address serious allegations of violations of international law, and expressing serious disappointment that the Government of Sri Lanka has not fulfilled its relevant legal obligations and stated commitment to initiate credible and independent investigations and prosecutions of those responsible for such violations,

1. Calls on the Government of Sri Lanka to implement the constructive recommendations in the LLRC report and additionally to take immediate steps to fulfill its relevant legal obligations and stated commitment to address serious allegations of violations of international law by initiating credible and independent investigations and prosecutions of those responsible for such violations,
2. Requests that the Government of Sri Lanka present a comprehensive action plan before the 20^th session of the Human Rights Council detailing the steps the Government has taken and will take to implement the LLRC recommendations and also to address alleged violations of international law,
3. Encourages the Office of the High Commissioner for Human Rights and relevant special mandate holders to provide, and the Government of Sri Lanka to accept, advice and technical assistance on implementing those steps.

While India is not where it was, in completely safeguarding the “little brother” next door, the US initiated Resolution has not diluted the war crimes and accountability issues, in raising the need to have the LLRC recommendations. The regime was certainly being pressured all through last 02 years to come down from where they were, despite Gotabhaya Rajapaksa’s a-political interfering in political decisions.

The Rajapaksas feel the heat no doubt, with its Sinhala political base also cracking up and unexpectedly fast too, at that. But where it faults once again is, in its cheap political gimmicks by playing to the local Sinhala society. The government is now playing on this international intervention to deflect protests against fuel hikes and demands for wage hikes. Its a futile attempt to distract social pressure with anti imperialist rhetoric any more. Sure the government could transport a few thousands to Colombo to carry pro government slogans, still. Mubarak and Gadaffi had such crowds till the last minute of their departure.

But, it is difficult for any government to hold itself firm in international forums, when it is being questioned and challenged at home on its performance and delivery. A government that has to use brute force in wading off growing protests, keep the military deployed at every funeral that would not be just funerals but also  people’s protests against injustice, a government that has to explain killing of protesters and with a continued trend in abductions and extra judicial killings, can not stand in front of international questioning of its democracy, as comfortable as it did, during pre war time.

All of them put together, the tide seem changing. The never corroding trust, the loyalty the Rajapaksas thought they have among the Sinhala people, is being breached over and over again and more brutally every time the people come out in protests. The economy seems beyond repair, despite foreign funding, that too comes with strings attached. International pressure is getting close to throttling distance. The Opposition parties have come to ride the wave of people’s protests in an effort to keep their place in opposition politics. The question nevertheless is, with no answers at hand, how will this Rajapaksa regime pacify its own Sinhala vote bank ?

• Jaffna Prices At MPCS Now Higher Than When Taxed
• Prices Improve In Jaffna
• The Fonseka Effect?
• Can GOSL Implement LLRC Recommendations?
• Examining Sri Lanka’s Diplomacy Machine

With the defeat of the LTTE, many female combatants and women who – willingly or unwillingly – worked with the LTTE surrendered to the Sri Lankan military. Initially, it was extremely difficult to get their details. However, in the last few months, the Government has released many “ex-combatants” after “rehabilitation.” Their reintegration back into the community has become a critical concern for women’s groups in the north. Many ‘surrendees’, as they are called, were not combatants but those who worked within the LTTE’s administration, while others were forcibly recruited even hours before the end of the war. Moreover, during their internment at rehabilitation centres, they were unable to exercise their right to due process in order clear any charges against them.

Even after their release, these “rehabilitated” surrendees are asked to register with the Civil Affairs Office (within the military). Following the process of registration, they have to report regularly to the military and their movements are closely monitored. As a result, the female ex-LTTE members are at great risk and one of the most vulnerable groups in new resettlement areas. The situation is compounded by the identification of these female ex-combatants to the community as people who pose a potential threat – not necessarily due to their previous perceived or actual involvement with the LTTE, but because they are constantly monitored and their movements restricted by the security forces. The communities of the north at times tend to avoid association with ex-combatants in the fear that the attention of the security forces might be drawn towards them, and ‘if something happens,’ the security forces might first seek the person who was released from the ‘rehabilitation’ centre and then those who might be associated with them.

The biggest challenge they face after returning home is the lack of employment and education, which impacts on their ability to live a normal life. Marriage prospects for female ex-combatants who fought with the Liberation Tigers of Tamil Eelam (LTTE) are bleak within Tamil society, which is very traditional. The estimated number of female ex-combatants is over 3000. A common complaint from rehabilitated ex-combatants is that they are not being hired for jobs because they are seen as “unusual” women due to their association with the LTTE. In reality, many of these ex-combatants are not demanding a lot. All they want is a decent life and to be able to forget about everything that happened in the past. Many fear that the attribution of the label “Tamil Tiger” to them is going to stick around forever irrespective of the fact that they need to move on. They are worried that the cultural setting will keep them in isolation and their own community will continue to distrust them for something that they are not.

Two years after the end of war, female ex-combatants are still collectively struggling to seek social acceptance from a community that in the past celebrated their role as “brave mothers and sisters” when they fought on the battlefield.

• Response to Michael Roberts’ ‘Turning Former LTTE Personnel into Sri Lankan Citizens?’
• Reconciliation through ‘Rehabilitation’ & ‘Reintegration’ of Ex-LTTE members in Sri Lanka: Separating Fact from Fiction
• ‘National security’ in post-war Sri Lanka: Women’s (In) security in the North
• Jaffna and the Vanni today: The reality beneath the rhetoric
• Women are not willing to go back to pre-war status quo

Photo courtesy REUTERS/Dinuka Liyanawatte

Despite the many limitations and criticisms levied at the final report of the LLRC, it must be recognized that in the presentation, the report reached a level of professionalism, objectivity and breadth in scope, within the relatively short period of time mandated to the Commission.

The much talked about Truth and Reconciliation Commission of South Africa was not without its critiques. Many felt that the TRC was “weighted in favour of the perpetrators of abuse.” The ‘highest – profile of these objections’ was filed by the family of prominent anti – apartheid activist Steve Biko who was killed by the secret police and whose story was featured in the  film ‘Cry Freedom.’ The family felt the TRC “was a vehicle for political expediency” which denied them their ‘right to justice’.  Opposing amnesty for his killers, they brought legal action against TRC as unconstitutional.  There will be no report that will be free of criticism or be able to satisfy everyone.

There are several recommendations made by the LLRC if/or when implemented will set the nation more than half way to building trust and confidence among the parties to the conflict and bring about peace through improved governance resolving some of the urgent problems facing the country.  It is time that Sri Lankans learn to use the conflict situation the country has gone through as a ‘catalyst for discovering and creating resolutions’ to promote understanding within and among the communities.    Obviously the responsibility to implement the recommendations within an agreed time frame rests squarely with the government.  It is hoped that the government will have the political will to implement the recommendations presented by the Commission mandated by the President himself.  If the implementation is perceived to be tardy, then it will be up to the religious leaders and civil society to alert the government to the urgency for implementing the recommendations.

The recommendations touch on most of the important aspects essential for reconciliation and good governance.

Reconciliation

Although the end of the war points to the State as the victor, a sober reflection of the post war scenario will reveal that wars do not end in victors and losers. This war is no different; the victor will emerge only when reconciliation, rehabilitation and reconstruction processes have achieved their targets and discussions on the war and the post conflict period becomes a thing of the past. The victors must emerge from both sides, from the majority and the minority communities looking to the future with a common vision for harmonious relationships, shared powers and shared resources that would bring progress to the people.  Constantly looking  out for divisive politics will get the country nowhere.  The country must learn to make compromises and get over the ‘ugly patches’ (the world is full of them) and look to give the next generation better opportunities so that they will become achievers and not losers.

The nation must note the positive features of the report and adopt a multi- pronged attack in the implementation process.  There must be just one focus, that of building a united community of people living together as equal partners within the country.  What better way to begin this process than by addressing the issues on moral introspection?  The LLRC has placed moral responsibility for the origin and the continuation of the conflict on both the political leaders and the civil society of both Sinhala and Tamil communities; the political parties for their failure to reach a consensus and arrive at a solution acceptable to the Tamils; the Tamil political leaders for promoting and supporting a violent armed campaign to secede employing terrorist methods against both the Sinhala and Tamil people.  The fault lines are highlighted not to critique the offending parties but to fix culpability as a way of cleansing the guilt and ensuring that it will never be repeated again.  The Commission has called for a joint declaration of apology to the country from leaders from all sides with “forgiveness and compassion” in the minds and actions of all the stakeholders.

The Commission has recommended that a ‘‘commemorative gesture’ be made on the national day, to express solidarity and empathy with all the victims of the tragic conflict and “pledge our collective commitment to ensure that there shall never be such bloodletting in the country again”.  They obviously believe that this gesture “would produce the necessary impetus to the reconciliation process the nation as a whole is now poised to undertake.”  Sadly, in the ongoing dialogue between the government and the TNA the country is witness once again, to the politics of brinkmanship.  It is clear that the stakeholders have to become better learners of the past history and the mistakes they have committed to move forward.

The Commission has also recommended the removal of ethnic classifications on Sri Lankan identity cards and the singing of the national anthem in the two languages to help project a Sri Lankan identity.  Ethnic identification has been a bone of contention because of the many instances of discrimination and positive hostility created through ethnic identification on the identity cards.  If this is adopted at least one source of possible discrimination will be removed.  That we lost the opportunity to utilize the occasion presented at this year’s National Day to sing the national anthem in the two languages is to be lamented, while still holding on to the hope that this can be changed in the future.

Sri Lanka’s communal history of hostility and violent upheavals has been almost always fuelled by irresponsible speeches inciting or actively provoking hostilities among the ethnic groups.  The Commission has directed that deterrent laws to prevent ‘hate speech’ be enacted and that the laws be strictly enforced.

In this connection attention is directed to some members of the diaspora, drawn both from the supporters of the LTTE and the Sinhala Buddhist lobby who continue to work towards dissension despite the conclusion of the war.  To bring about reconciliation with these groups the Commission has recommended that the government and other stakeholders engage with the ‘hostile diaspora’ to mute the growing animosity and to constructively address their concerns in order to harness the ‘potential’ of the expatriate community. This will also help the country to improve its profile internationally as well as with those countries where the diaspora groups are domiciled.  The recommendations of the LLRC calling for action to facilitate easy travel, dual nationality status, and the dispatch of remittances, all of which disproportionately affect minority communities, are matters that can be adopted without difficulty. 

To strengthen the reconciliation process and reduce tensions amongst the men and women who were with the LTTE and who have since passed through the rehabilitation program, the Commission has recommended that they be effectively integrated into the life of the community.  Some progress has been made in this area already and it is predicated that giving priority to this aspect would bring about restorative justice to the ‘war victims.’  There are also in the North and the East, women, war widows, children, elderly, disabled and internally displaced persons who have no access to basic needs. Relief is suggested through livelihood programs, child friendly environments, support the elderly and disabled, assistance with housing and clear title to land.  These are all areas of utmost importance to the people and will give them a chance to pick up their lives and with personal progress they will move gradually towards reconciliation.

Media Freedom and Right to Information Law

Several inhibiting features that diminish the quality of democracy within the country have been observed, commented upon and recommendations suggested. The Commission by several direct and indirect ways has made reference to the ongoing violation of democratic rights by the state, the administration and by powerful individuals with political patronage.  In any democracy media is an important player and is considered the guardian of people’s interest.    In the post conflict period media has a particular role as “Freedom of expression and right to information …universally regarded as basic human rights play a pivotal role in any reconciliation process….” The incidents of human rights violation such as physical attack, killing and kidnapping of media personnel and destruction of media property have been far too many to be overlooked.  The Commission has pointed out that almost all of the investigations remain unresolved, with the perpetrators continuing to be free without any serious attempt made to subject them to the judicial process.  They have stated that it is the responsibility of the state to ensure that the freedom of the media is not tampered with.  They have suggested that attacks on the media should carry deterrent punishments; that investigations, prosecution and disposal of cases should be relentlessly pursued to build public confidence; that the government should ensure free media movement in the North and East to help in the exchange of information, and that the government should enact legislation to ensure the right to information.  These have been comprehensive, constructive recommendations, made to sustain an independent media, in “keeping with democratic principles and relevant fundamental obligations.”

Disappearances

Despite the withdrawal of emergency laws and the possibility to return to governance under normal laws of the country, there still exist fear and insecurity both in the south and in the conflict areas where several disappearances have occurred following surrender/arrest, abductions, and arbitrary detention under emergency or Prevention of Terrorism Act.  The field visits by the Commission also provided them with sufficient evidence on human rights violation in the conflict area.   The Commission took the onus to hold the state accountable for persons taken into custody and suggested institutional support to investigate the charges of rights violations.  A Special Commissioner of Investigation  to be appointed to look into alleged disappearances and pass the evidence gathered to the Attorney- General and if the evidence is admissible to initiate criminal proceedings; appoint an Independent Advisory Committee to monitor status of anyone taken under Public Security Ordinance or the PTA as well as those held for long periods of time;

Information on missing persons to be made available to the public, a centralized data base of detainees and a household survey of the dead and injured civilians as well as damage to property were recommended.

The Commission also recommended that IHL be made applicable at all times and those arrested be produced before the courts with the follow up of legal proceedings; compulsory directive to notify families of place of detention and all releases to be effected through the courts; legislation to be enacted to criminalize enforced or involuntary disappearances; island wide human rights education programs targeting schools, youth, members of security forces, and the police; strongly advised that law enforcement authorities in cooperation with ICRC take the responsibility to trace the whereabouts of missing persons and keep relatives informed.

The pressure on the next of kin, not knowing whether their loved ones are living or not is another aspect of this problem addressed by the Commission.  They recommended that where death could be confirmed death certificates should be issued which will help to bring about closure as well as give them compensation if the claim is justified; in cases where the breadwinner is detained it was recommended that financial aid and legal assistance be given to the families.

If these recommendations are implemented much of the anxiety faced by the relatives from lack of information can be reduced. The possibility of the rule of law prevailing will help to build trust and confidence in the minds of the people.

Illegal Armed Groups

It is widely accepted that these armed groups are responsible for abductions, wrongful confinement and extortion. They move around freely creating fear, threatening the safety and security of the people and denying to them their space for peace.  The Commission has reiterated its Interim Recommendations, that these groups be disarmed; that criminal proceedings be taken against offenders found guilty; that crimes allegedly committed by criminal elements have not been taken to bring about closure.  The Commission urges that a full investigation for example of the Trincomalee massacre of five students in 2000, and 17 aid workers from ACF in Muttur in 2006, of Karuna and Pillayan’s involvement in the killing of 600 surrendered police officers in 1990 should be undertaken primarily because of the nature of the crime and its bearing on reconciliation.  This also includes the alleged extortions by EPDP members, conscription of children by LTTE and TMVP.  Wherever evidence is available they have recommended that the accused be prosecuted. They also made the pertinent comment that had these groups been restrained it would not have been possible to carry out the attack on the Editor of Uthayan newspaper.

The Commission has also raised the issue of disappearances and asked that investigation be undertaken and if evidence is available punish the offenders. If the government is to appear fair they must act fast and put all these matters to rest.

Independence of the Judiciary and the Rule of Law

Many persons making representations to the Commission have stated that justice is the casualty in cases where crimes have been committed by persons with political patronage. The deterioration in the rule of law is clearly visible; this has created a high degree of inequity and impunity in the system. The failure of the authorities to conduct conclusively investigation of criminal actions, to the politicization of the law enforcement processes particularly in police administration. The Commission is of the view that the matter warrants a full investigation of the judicial system.  This has destroyed people’s faith in the legal process and the independence of the judiciary; as this is also seen as a major denial of the fundamental rights of the people, the Commission has recommended that the judiciary should remain an independent body with transparent legal processes with strict adherence to the rule of law.    The recommendation for the establishment of the Public Service Commission and of an independent Police Commission, both of which were a part of the now defunct 17^th Amendment, is a welcome step.  It was also suggested that the Attorney General’s Departments be set up in the provinces to advice the police department on the legal processes in criminal investigations, prosecutions etc. However this will work well only if and when the legal processes can be free of political interference.  There are significant recommendations and should be put into effect with the urgency Lankan situation demands.

Return to Civilian Administration

The Commission has made a categorical statement that it is important that the Northern and Eastern Provinces revert to civilian administration on matters relating to the day to day life of the people.  They therefore recommended that there should be demilitarization and the phasing out of all involvement of the security forces in the civilian activities in the North and East particularly in agriculture, fisheries and land utilization.  It is also recommended that Human Security Zones be ‘rationally reduced’ to enable people to return to normal civilian life that would ensure free movement and greater security. The Commission has also stated that the police department being a civilian institution should be maintained as such and recommended that the police department be delinked from the institutions dealing with armed services.

Devolution of Power

To hasten the peace process the Commission has noted that serious and structured dialogue with all political parties and the minorities has to be undertaken based on  carefully formulated proposals by the government. The Commission advocates a political settlement based on devolution of power within the unitary system with its territorial integrity secured.  People centric devolution (with the shortcomings of the provincial council system removed), will empower local government institutions to ensure greater people’s participation at the grass roots level.  The Commission commented negatively on the attempts by the Tamil leaders to internationalize the ethnic issue as counter-productive achieving nothing except to exacerbate the problem resulting only in impeding progress towards reconciliation and an acceptable solution.

The LLRC report underlines the need to get on to a fast track to come to a settlement on the devolution issue and hasten the establishment of sustainable peace.  It is suggested that serious and structured dialogue with all political parties and the minorities be initiated.  Progress in the areas mentioned above is critical and overdue as no part of the interim report of the Commission has been tackled to date.  To work out an acceptable solution to devolution the cooperation of all parties to the conflict is sought.  The proposed Parliamentary Select Committee should conduct its discussions on the basis of carefully formulated proposals worked out by the government together with technical advice from competent persons. The Parliamentary Select Committee must not be seen as a delaying tactic but should be used to clarify issues of the conclusions arrived at the dialogue between the government and the Tamil representatives.

Land

In today’s context land has become a source of conflict; while it is difficult to immediately restore pre-conflict status, it is suggested that a defined land policy accepted by all political parties be worked out with a proviso that it should not be used to change the demographic patterns of a given province, a longstanding fear of the minorities.  The establishment of a National Land Commission has been suggested to draw guidelines for land policy. This has been a part of the 13^th Amendment although it has not been implemented.  It is however important to see that “illegal land transfers and alienation triggered by violence, intimidation and ethnic cleansing are not perpetuated or institutionalized”. Even in instances where land was acquired it was stated that a definite time period be allotted for its use.

 Language

Language has been an issue for too long.  To bring about a closure trilingulaism, mixed schools with children from different ethnic backgrounds, school curriculum to include compulsory learning of the two languages, Sinhala and Tamil for all; government offices to have Tamil speaking officers, police stations to have bi-lingual officers, National anthem to be sung in both languages are some of the recommendations to bring about ethnic harmony.

As seen in the text of this paper the LLRC Report contains observations and recommendations on a wide range of subjects which cover good governance, devolution and civilian administration, language rights, rights violations and application of HRL and recommendations to lighten the burden of the families of missing persons, restoration of the rule of law and the independence of the judiciary, de-politicization of governance processes etc.  It is true that most studies commenting on the report concentrated on the accountability issues, but in this paper a conscious effort is made to limit the analysis very narrowly to the positive aspects in the report which lends itself to quick implementation.  If the recommendations referred to here are implemented within a limited time frame there is no doubt that a great deal can be achieved to bring about healing of wounds, restorative justice and reconciliation, a  big step towards nation building.

• THE LLRC AND COMPLAINTS OF DISAPPEARANCES OF PERSONS
• Can GOSL Implement LLRC Recommendations?
• LLRC Recommendations: Can the Rajapaksa Regime Digest?
• Still waiting for justice in Sri Lanka
• The official report of the LLRC

Photo courtesy First Post

During his recent visit to Sri Lanka, India’s External Affairs Minister, Mr. SM Krishna reminded that President Mahinda Rajapaksa was committed to a ‘13th Amendment Plus approach.’ This has been an old promise of the Government, one which was so prominently made in 2008-2009 as well. The timing of this promise seems perfect; the next session of the UNHRC in Geneva is around the corner.

13A: debate

The debate concerning the 13^th Amendment to the Constitution of Sri Lanka has now been revived. A useful contribution made in recent times which contains important suggestions regarding the full implementation of the 13^th Amendment is that of a principled advocate of federalism, Asanga Welikala (Groundviews, 12 Feb. 2012). Dr. Dayan Jayatilleka argues that the current deadlock can be broken by setting up an interim administration in the North (Transcurrents, 13 Feb. 2012).

We remember the numerous contributions made in the past too. One particularly striking and lucid contribution that comes to mind is that of Prof. Shirani A. Bandaranayake, who, writing as the Dean of the Law Faculty of the Colombo University (currently, Sri Lanka’s Chief Justice), made a strong case in favour of improving the present devolutionary framework by, inter alia: changing the Provincial Council (PC) structure (i.e. bringing down the current provincial unit from nine to five PCs), through a re-demarcation of territorial boundaries (i.e. 5 regions, in which, for example, the Northern and Eastern Provinces are merged – this was before the de-merger); and, as advocated by many, through a clearer definition of Centre/Provincial functions [see ‘Devolution’ in Sri Lanka Year 2000: Towards the 21^st Century (CRDS, May 1995), p. 132-142]. Similarly, much has been written about this topic.

Implementing 13A: practical

The voluminous literature on the 13^th Amendment offers valuable lessons. And yet we are faced with the question: what is to be done about the 13^th Amendment? Should it be fully implemented, should it be ‘13A Plus’ or ‘13A Minus’? Is it really useful, or, how useful is it, really?

The implementation of the 13th Amendment (especially in the North) does appear to be the most practical thing to do at the present moment. In this regard, we raise some famous arguments. One is that since it is part of our Constitution, the 13^th Amendment should be implemented. Another is that given the current political context, implementing the 13^th Amendment is the most reasonable or acceptable middle-ground that we can reach. It is the most practical thing to do, and without the implementation of the 13^th Amendment, one cannot even imagine how something more could be realized. Rejection of the 13^th Amendment is simply unacceptable; constitutionally, politically and diplomatically.

These are valid arguments, when viewed from a narrow legal and political perspective. But the upsurge in demands asking for the immediate implementation of the 13th Amendment does give rise to some problems. One is that this demand does lead to, perhaps inadvertently, a state of doggedness in certain commentaries whereby the message seems to be that implementing the 13^th Amendment is the only way out; any rejection of the 13th Amendment is thereby strongly critiqued. Secondly, the deep attachment to the 13th Amendment (and 13th Amendment only) could lead to the forgetting, or disregard, of the deep cultural and attitudinal problems that make devolution appear so difficult and deadly in Sri Lanka.

There is nothing sacrosanct about the 13th Amendment, and there are a number of reasons why one can and should entertain the idea of rejecting the 13th Amendment if necessary (based on the condition that there is commitment to better what already exists). This is not to say that the 13th Amendment should be rejected tomorrow. Rather, it is to point out that there are alternatives available if necessary, and that there is no reason why one should be starry-eyed about it. Why?

Indian intervention

It is necessary for Sri Lanka – especially at this ‘post-war’ stage – to think afresh about its most significant problem or challenge: devolution. The history surrounding the Indo-Lanka Accord is a critical factor which makes the 13th Amendment one of the most reviled piece of legislation which is part of the Basic Law of the land (even though it is also the most significant, in terms of providing devolution of powers to the periphery). A commitment to devolution does not mean the uncritical acceptance of all instruments that grant devolution. The search for a framework which is ours, and not one which has been imposed upon us, is a useful exercise. It is a point which needs to be made today, but one which we are reluctant to make; because we tend to consider this piece of legislation to be sacred, and advocating its implementation, the diplomatic thing to do.

Part of the Constitution

While the Constitution needs to be implemented in full, relying too much on the argument – that the 13^th Amendment should be implemented because it is part of the Constitution – appears, at times, to be unconcerned or uncritical about what is being implemented in the first place. It is a convenient argument, and can even amount to a dishonest one; one which can be conveniently used to shield yourself from strong Sinhala-nationalist criticism (‘look, it’s part of the Constitution, so why blame me for advocating devolution?’)

Also, one cannot, having raised the argument, also claim that some controversial provisions cannot or should not be implemented; such an argument will be met with the equally forceful argument that if so, there is no great difference between implementing part of the Constitution and implementing part of an amendment to the Constitution.

13A: a political ‘middle-path’?

It is questionable as to what amounts to the political ‘middle-path’ as regards the issue of devolution. What is to be remembered here is that there is no purely objective ‘middle-path’, especially in politics and political commentary. All things that come with that often comforting tag should be viewed with suspicion (like all political columns that appear with the tag ‘Middle-Ground’ ought to be considered with a lot of suspicion!). Importantly, middle-of-the-road positions appear useful only so long as they are not contested. But the moment such positions (roads and paths) are probed and interrogated, and the moment the advocate of such a road begins to clarify and explain, the broadness or narrowness of such paths begin to be exposed, and they appear to shift towards one extreme or the other and will in turn be the topic of great contention.

For example, given the current deadlock, implementing the 13^th Amendment appears to be a ‘middle-path’. But if you admit that there needs to be further improvement, it becomes a shifting, sliding, path. On the other hand, if you advocate 13^th Amendment as the only solution, it becomes useless from a devolutionary perspective, and one slides in the other direction, towards the position of an apologist for the anti-devolution camp. Furthermore, to be sure of the middle-path, can we be sure about the two extreme paths? On the one hand, the two extremes are: ‘no-devolution’ and ‘separatism’. But what if ‘federalism’ too is considered to be an extremist position by a majority of the people? If then how does one objectively figure out what the middle-position is: 13A or ‘13A minus’? In short then, there is no reason why one should uncritically accept all that appear to be ‘moderate’ solutions; especially if that ‘moderate’ solution is considered to be the implementation of the 13th Amendment.

13A: ‘incurably flawed’

More importantly, the 13th Amendment is in any case a flawed framework in terms of guaranteeing devolution of powers. It is precisely for this reason that some of the suggestions and studies mentioned above have been made in the first place. The TNA’s critique in this regard is not surprising, and the rejection of the 13^th Amendment is not limited to the approach of the LTTE or the TNA. Let’s revive our memories here.

Dr. Dayan Jayatilleka (who is today the strongest critique of the TNA), writing a very interesting and useful piece recently, seems to be disgusted with the approach adopted by the likes of M.A. Sumanthiran (TNA-MP) towards the 13^th Amendment. Dr. Jayatilleka points out that Mr. Sumanthiran (like M.I.A flipping the bird in the US), has raised the middle finger at the 13^th Amendment (Groundviews, 12 Feb, 2012).

But here’s Minister GL Peiris, once upon a time, on the flaws of the 13^th Amendment (and showing the finger at it):

“There is some talk in certain quarters about the resuscitation, the revival, of the 13^th Amendment… I maintain that the 13^th Amendment does not deserve to be resuscitated, you cannot breathe life into it for the simple reason that its foundation is incurably flawed… there never was a genuine desire to devolve power through the medium of the 13^th Amendment. It was an exercise in insincerity. It was a response to external pressures that could not be resisted at that time… What is more, in my view, the 13^th Amendment has inflicted irreparable damage on the procedures and techniques of negotiating with regard to constitutional and ethnic amity. This is because the 13^th Amendment has bred a great deal of cynicism. This is so because there is a wide gulf between the appearance and the reality.” [emphasis added – as stated during the P. Navaratnarajah Memorial Oration delivered on 28 July 1997, contained in GL Peiris, Towards Equity (2000), p. 148. Interestingly, Prof Peiris reiterates this message in the exact same words (… ‘its foundation is incurably flawed’) in a speech delivered to the Commonwealth Human Rights Initiative in New Delhi, on 18 December 1997. See ibid, p. 185].

The point here is that it is not difficult to understand why the 13^th Amendment is critiqued and even rejected by the TNA (it is rejected even by the likes of Mr. Anandasangaree, even though that rejection may not be articulated in the way it is done by the TNA). There is a reason why the TNA, and many others, show the middle finger to the 13^th Amendment. Yes, we may be in a ‘strange place, a time-warp’, but one in which Mr. Sumanthiran seems to be echoing, not only the words of Anton Balasingham, but also the words of Prof. GL Peiris as well. It is perhaps necessary, therefore, to take serious note of this constitution-making history when critiquing the TNA’s rejection of the 13th Amendment.

What does this amount to?

The resolute advocacy of the 13th Amendment then appears to be a both practical and useless. It is practical in that it breaks the deadlock. It is, however, useless when considering numerous different factors, the most important of them being the fact that it is ‘incurably flawed’ anyway. Also, once we take into account numerous other political factors, such as the unwillingness of the Government to devolve powers, the fact that the demands of the major Tamil political parties going beyond the 13th Amendment, and, as Welikala points out, the inability on the part of politicians to change the attitude on this issue of devolution, we soon realize that there is bound to be another serious deadlock even if the 13th Amendment is implemented today – especially if it happens (and how else would it happen?) due to some serious political/diplomatic pressure, and hence, with great reluctance and no conviction.

Beyond 13A: rebuilding trust

At the heart of the matter is a very serious question of trust; the absence of trust in certain groups that their demand for devolution is ultimately to create nothing but a separate state. One of the most critical challenges before us in this regard is the creation of a political culture which is more open to debate and discussion about devolution; which includes a commitment to listen to different and often conflicting perspectives about power-sharing. The challenge also is to build a political leadership which is more honest in its commitment to devolution within a sovereign and united Sri Lanka, one which is willing to share power, one which is more honest and sincere about its political promises (one which is sorely lacking, today).

What is required is not some artificial political culture or leadership which attempts to be overly objective, or neutral or one which proclaims to tread that often mushy political ‘middle-path’. Rather, it has to be a culture and a political society which is open to, and celebrates, the debate and engagement with conflicting perspectives, subjectivity, prejudices and biases, but with a view to ‘hammering out a compromise’, as the late Lakshman Kadirgamar once put it. That compromise has to be struck, for there cannot be absolute winners in this game.

Government-TNA: a ‘cold-war’

In this regard, what is most critical to note at the present juncture is the ‘cold-war’ that exists, especially between the Government and the TNA.

Going by some of the views of the Government and its representatives/supporters, the most significant problem is the attitude (the ‘LTTE-mindset’) of the TNA. The TNA was the proxy of the LTTE, and it is a very serious mistake if the TNA takes this criticism raised by many quite lightly. It needs to be mindful of, and whenever necessary critique, what the LTTE stood for, the kind of damage it did to a country, and to a population; especially to innocent men, women and children, belonging to all ethnic communities – as highlighted most forcefully by the likes of Dr. Jayatilleka.

The TNA should also try to win the hearts and minds of the Sinhala majority, and in that process, every single intervention of the TNA would be watched and read with care. For example, writing about the devolution of police powers recently, Mr. Sumanthiran begins a paragraph with the following sentence: “The myth that the devolution of police powers will lead to secession is as fanciful as it is ludicrous” (The Island/dbsjeyaraj.com, 9 Feb. 2012). What Mr. Sumanthiran would do well to remember is that secession will never be considered ‘fanciful’ or ‘ludicrous’ by a majority of the people and especially by the Sinhalese. First impressions do count and the initial impression a sentence of this nature creates is that the likes of Sumanthiran are not taking the fear of secession held by a lot of people in this country with the degree of seriousness that it deserves, even after a secessionist war. In that sense, the TNA needs to play a very careful role in their new political struggles within a united Sri Lanka. It also needs to come forward not only as representatives of the Tamil people (or of the Tamil nationalists), but also of the oppressed and marginalized belonging to all communities. That can be done if the TNA starts to voice its concerns more strongly about issues affecting the totality of the people of this country (economic, education, human rights not restricted to the North and the East, etc.).

But, on the other hand, it is necessary to move on with the TNA and to do so, one needs to, in the least, attempt to trust the TNA even though it may be a difficult task.  The Government and its ministers seem to be rejecting all that the TNA does today. This is not only because the TNA is perceived as a proxy of the LTTE, but also because it is strategically necessary for the Government to do so, as the TNA still has support within the Tamil community. Also, the critique of the TNA by other Tamil groups also amounts to, at times, a political gimmick. For example, Minister Douglas Devananda slams the TNA for advocating self-rule (even within a united Sri Lanka); and in doing so, the attempt is to single-out the TNA as an extremist party. But what goes unsaid is that while one can interpret ‘self-rule’ in different ways, what Minister Devananda wants as the final solution – i.e. a ‘13A Plus’ solution – does amount to a measure of self-rule as well. There is a point about the TNA pushing for more devolution with such loaded terms. But that cannot be necessarily critiqued by those who demand the same in different words.

Furthermore, it is necessary to take the TNA’s reconciliatory statements in a spirit of friendship. It has, in the past few months, issued some statements which should help build trust and confidence in the people, especially the Sinhalese (eg. statement about the problems in the education system, R. Sampanthan’s statement about not betraying the Sinhala people, and TNA’s recent acknowledgment of the good work done by the Government concerning rehabilitation). If the Sinhala majority is always going to point the finger at the TNA and state (however correct this may be) that the TNA was the proxy of the LTTE, then – let’s be clear about this – there will be no progress whatsoever.

The point is not to forget the LTTE/TNA’s past (to ‘forget’ is a mistake). Rather, it is to attempt to move on from here. This is not happening today at the (party) political level. But it should be possible. Take, for instance, the above sentence of Mr. Sumanthiran concerning police powers and secession. If necessary you can read it selectively and continue to be antagonistic. Or else, you can read the entirety of the passage, the remaining lines being: “There is no Tamil political party in Sri Lanka that is even remotely interested in dividing the country. For our part, we are clear that a durable solution to the ethnic problem must be found within the contours of a united Sri Lanka.” In doing so, one ought to take note of the political commitment made to live within a united country. But where is that effort being made, especially by those in Government?

Conclusion

A political culture in which there is a widening gap between what is being promised and what is being actually realized develops into a culture of extremely bad faith, of broken promises, of hypocrisy. It breeds cynicism, a leading to the embrace of an ‘anything-goes’ kind of attitude by the people, and by a minority, in particular. It is a culture which is also immature, which sends wrong signals to its people and to the wider world. This is not what Sri Lanka deserves. Its people deserve much better. A search for something more than the 13th Amendment should take place too; a search for what laws and constitutions cannot always guarantee.

• “Sound is no substitute for argument”: Exclusive video of TNA MP M.A. Sumanthiran’s speech in parliament against 18th Amendment
• The 13th Amendment as a political solution
• Final text of TNA MP M.A. Sumanthiran’s speech in Parliament opposing the 18th Amendment
• Hansard on 18th Amendment debate, 8 September 2010
• Going beyond the 13th Amendment: Newspaper coverage of the Sri Lankan’s President’s assurance to India

Over the course of roughly a year Vihara Maha Devi has been through some significant changes and they are still on-going. Seemingly, this is related to the transfer of authority as the navy took over the administration of the park in May 2011. At the outset it needs to be stated that the Park would not make it into a list of ‘top twenty (or fifty) public parks in the world to visit before you die!’ or ‘top ten sites in Colombo’. It would also be difficult to claim Vihara Maha Devi as a high point of Sri Lankan garden aesthetic, unlike say the colonial-era Peradeniya Botanical Gardens or post-independence treasure of Brief. Nonetheless, it has its own charms, the least not being it is the only green oasis in the heart of Colombo (I am not counting Galle Face Brown). For a fairly green city, it is strange that there are no other public parks of any significant size, nor are there are any on-going efforts to create one (or maybe there are plans but we are yet to be informed?).

However, the park is one of Colombo’s fast disappearing common social spaces where diverse segments of the city mix or at least, briefly share space: a cross-section of morning walkers ranging from first ladies, both past and present, to professionals, retirees and more home bound souls exercising in track suits, office clothes, burquas and saris with jogging shoes; the homeless who use it as a space to sleep and rest; families from the more congested parts of town looking for a spaces to picnic, play and relax; young artists with their mainly saffron and ochre work ringing one side of the park; vendors selling acharru and elephant house ice cream; occasional protests most often spilling over from the Town Hall roundabout. The park also has its share of wildlife. The small pond in the middle used to have a couple of pelicans but for the moment you can catch a couple of cormorants, egrets, white breasted water hens and of course the roosting, raucous bats hanging from the larger trees. And every year around this time roughly 100 elephants arrive for the Navam Perahera, forcing out the couples who normally find refuge and romance in the nooks and crannies of large trees. The park offers a slice of Colombo.

The most notable change to the park is obvious – it is much more open. The vegetation has been cut back offering more open vistas through the park. A friend who approved of the park’s make over told me that “now you can see clearly through as you drive past.” At least two women were appreciative of the clearing, as it makes it more difficult for “the pervs to flash” although the reduction in flashing could also be due to other factors such as the presence of more walkers and people in the park.

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However, the disadvantages of this clearing are many. From a purely aesthetic point of view, the re-design is bizarre to say the least. While my friend driving past the park was grateful for the clearing, my counter-argument was that the point of a park is not to offer commuters a clear view of vehicular traffic on the opposite end of the park. As opposed to the past when you could escape the traffic in the park, now, when you stand right in the middle of the park you can basically see traffic 240 degrees around you. While the clearing of some of the vegetation does visually link up sections of grassland, making the park appear larger, there is not enough contrast. The primary aesthetic principle seems to be to discipline the garden. In a weird twist it seems a part of a colonial project to impose order on undisciplined tropical foliage.

The operation of cleaning up the park was not merely to trim back hedges and prune a few trees. A number ‘hedges’, including the bamboo by the Sathutu Uyana fence have been almost eliminated, but a number of trees have also been cut down and it is not apparent why. According to another fellow walker at least thirty trees have been cut down. The carcasses of large tree trunks lying on their sides and the chopped tree bases sticking out of the earth were clear evidence of this fairly extensive clearing exercise. If we lived in a more montane environment this tree clearing may have made more sense but we are in the tropics, we do need a bit more shade.

Besides, the trees, the other main victims of this extensive pruning have been the couples who are now smaller in number who from as early as 7 am would try to slink into the nooks and crannies of the larger trees. With the clearing of vegetation smaller birds and mammals are also less present; it does feel like the park has lost some life. The large elephant bath has also been demolished and instead there is a large amount of rubble in the area, which still remains. While some of the tired looking flower beds have been cleared, the limited re-planting has been fairly conservative – lines of jasmines and palms. More recently, new but uninspired flower beds have been added and it is not clear that there is an attempt to increase the botanical variety. The igloo liked aquarium that has been closed for years, now emits pirith, one wonders for whom. One morning the police drove in and picked up some homeless people seated on a bench. The park guards said these individuals had charges against them but were clearly relying on the police for this information.

There are some improvements, like one new walkway opposite the Nelum Pokuna Theatre, but it is not clear if this required the displacement of the weekly plant sales. An eatery- Lak Café has been established for park users who want something more than ice cream and accharru. It is not clear what further changes will take place or whether enthusiasm will wane. The park is, after all full of faltered public projects – a few sign boards for endemic trees, a train for amusement rides that no longer works, a small stage facing Vihara Maha Devi herself which is rarely used.

This is not meant to be a eulogy for the park as it once was. Rather, it is a call for a re-direction in how the re-designing of the park is proceeding. In particular, why are trees being cut? This is not a problem just specific to the park but for Colombo in general. Worryingly there are also rumours of more tree chopping in Colombo, including the very old banyan trees by the Sri Lanka Lawn Tennis Association on Sri Marcus Fernando Mawathe. Trees are what define Colombo and are perhaps its most redeeming feature. Why are we in some frenzied rush to become somewhere else, when most other metropolises are struggling to regain some greenery? While clearly some trees need to be cut back and in extreme cases cut down, let’s hold off the power saws.

Clearly there are problems in the park that need to be fixed. For instance the issue of garbage remains as there continues to be plastic bags, bottles and other rubbish every day lying on the grass, rather than in the rubbish bins. More bins and fines for littering may be necessary. In the wake of tree chopping, some re-planting is required.

The rejuvenation of the park should also be an assertion of citizenry, where we as citizens should demand some say and put forward some suggestions. The park technically falls under the Colombo Municipal Council (CMC) so Mr Mayor how about proving your mettle – call for suggestions from the public, provide the public information about the final plan and show us how governance and urban development can be done differently.

• Cutting down trees to make Colombo beautiful?
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• A-Z of Sri Lankan English: N is for na tree and nil manel
• Chaos in Colombo: Mêlée over jobs indicates a serious economic problem in Sri Lanka?

Photo courtesy Daylife/Reuters

We all know about the 99% and the 1% and most of us know where we are or which we sympathise with. I’m with the 99%. But what about the 97% and the 3%? How many of us know about the 97% anyway? I didn’t until a few days ago, so I wouldn’t blame anyone, but those of you who read this article will know all about it when you’ve finished and you can figure out which side you’re on. I’m with the 97%.

As you read on, it will be tempting to caricature the point and reduce the 97% to a partisan stance, which it is not. To spin it as such would be the most gigantic undeserved compliment one could pay an administration or a political bloc. The 97% is about a perspective on an important theme or cluster of concerns (‘national-popular’ in Gramscian terms) of the enormous majority of the country’s citizenry, which translates itself into partisan support only because a political leadership and formation have decided, for reasons of conviction or convenience, to identify with it and channel that perspective. Nothing prevents the alternative formation or any other from doing the same, which would prevent a single political bloc from tapping and monopolising that collective sentiment.

So, read on, and go look in the mirror: figure out whether you are part of the 97% or with the 3%.

The latest number of Lanka Monthly Digest (LMD) to reach me (belatedly), its December 2011 issue, has Kumar Sangakkara on the cover as the Sri Lankan of the Year, which is an apt pick indeed. The LMD has been a periodical of repute since its appearance in 1994 and is a prominent voice from within the country’s vibrant corporate sector. Regular commentators in its pages include Jehan Perera, hardly an ideologue of the ruling coalition. Therefore I take rather seriously its regular item Talking Point, Voice of the People, presented by the LMD Business Desk, and features this time, the LMD-TNS opinion poll on the issue of international pressure on war crimes, human rights etc. The survey is conducted by TNS Lanka, the local affiliate of TNS which bills itself as the world’s largest customised research agency and is part the WPP group which has offices in 106 countries. The research methodology was a random sample and face to face interviews of respondents between 18 and 55 years of age , with an equal gender divide and covering Colombo and the provinces ( or ‘outstations’ as it quaintly calls them) in equal proportions.

The questions are full-on and the results are dramatic. Are you in favour of the Government’s reaction to allegations of human rights abuses? 97% say YES. Do you feel that certain nations in the West are applying double standards in regard to alleged ‘war crimes’? 85% say YES. Does the Secretary General of the UN have the right to appoint a panel to report on the final stages of the war? 78% say NO. Has the Opposition adopted the right stance as far as Sri Lanka’s defence in the face of these allegations are concerned? 80% say NO. (p45)

Little wonder then that the LMD Business Desk reports that “a staggering 97% of people interviewed by TNS pollsters across the island say they are in favour of the Government’s response to allegations made by the UN panel and some Western nations”. (Ibid)

It goes on to disclose “that the West practices double standards is highlighted, and it is no surprise that 85% of the poll participants believe this is also the case in the present scenario.  ‘The West very frequently publicises false statements’, ‘Western countries only act in their best interests’ and ‘some Western countries support terrorists’ are some of the opinions expressed during the nationwide survey.” (ibid)

Strikingly important as these results are the questions and answers that follow are even more significant to students and practitioners of politics.  These pertain to the political behaviour and prospects of the Opposition, the preferred foreign policy perspective of the public and the commitment of the citizenry to democracy.

What then does the public think Sri Lanka should do, as a counter-hegemonic strategy? “Looking at the bigger picture, poll participants believe that Sri Lanka should seek the support of friendly nations such as China and Russia, who as permanent members of the UN Security Council have veto powers. They say it is also important to set a mechanism in place to counter such allegation s through the international media – with the use of online forums and so on.   Reorganising the country’s foreign diplomatic service ‘to work efficiently and make strong representations against such allegations’ is also recommended by survey respondents.” (ibid)

This criticism or more accurately, defensive counter-criticism of the West is not a manifestation of congenital or culturally conditioned anti-Westernism, unlike in the case of the Southern chauvinist fringe. Almost 30% of those polled called for ‘building and strengthening ties with the Western countries’.

Fascinatingly, the poll results reveal not merely the secret or a secret of the popularity of the government, but of the unpopularity of the opposition.

“Criticism is also levelled at the opposition almost by a similar majority (80%) of respondents who are of the opinion that ‘the opposition is working towards gaining political advantage’ out of the present situation when the government has locked horns with the mighty West.” (p45)

Here lies the deadlock, because the unambiguous diagnosis, obvious prognosis and clear prescription for the Opposition are completely at variance with the stance, ideology, self-image and proclivities of the main opposition party under its current leadership. Bluntly put, the UNP has always been seen as pro-western and soft on sovereignty, with the significant exception of the Premadasa presidency. This perception is indelibly ingrained under Mr Ranil Wickremesinghe and those associated with him. This public perception is a fatal electoral affliction at times of heightened public sensitivity to issues of sovereignty and perceptions of Western bias—times such as these current ones.

Anti-government strategists are probably betting on the oil price shock and economic crisis to generate a meltdown of the administration’s patriotic support, while the Opposition and its existing leadership stand pat and occasionally stir the pot. However, the slightest awareness of comparative politics and contemporary history would show that economic hard times do not cause patriotism to evaporate, only to combine in unusual combinations, generating unorthodox displacements and choices, not all of them predictable or palatable.  As Egypt and Tunisia show, none of the outcomes, especially the electoral endgames, escape the ‘over-determining’ effect of the ‘national-popular’.

The colossal indictment of the Opposition contained in the LMD-TNS opinion poll cannot be countered by ritualistic bows to race, religion and language (a la DB Wijetunga and IMRA Iriyagolla, the UNP’s notion of ‘nationalists’), because that is not what it is about, going by the data—the figures of approval and disapproval far exceed any ethnic, religious or linguistic demographic. Contrary to both the pro-Western opposition and cosmopolitan intellectuals on the one hand and the Sinhala ultra-nationalists on the other, this is manifestly not about Sinhala –Buddhist nationalism or chauvinism; it is about Sri Lankan patriotism.

The figures reveal that this overwhelming and overarching patriotism is by no means part of an authoritarian still less totalitarian mindset. Those critics who contend that the Sinhalese are making today, the same trade-off that the North mistakenly made for thirty years, namely ‘the defence of ethno-national pride for democratic rights and freedoms’, ignore – incredibly—the fact that the Tamil people were under the totalitarian jackboot of the LTTE, unlike the South which had, as does the whole island now, a multiplicity of mass media, civic associations and political parties. Therefore any analogy is ridiculous. Moreover, the polls data shows that the mass of our citizens are unhappy and unwilling to make any trade-offs which affect democracy and identify the strengthening, deepening and widening precisely of democracy (internally), as the ultimate and abiding answer to the (external) threats to sovereignty.

“But if we are to close this chapter once and for all, Sri Lanka’s democracy must be strengthened; law and order must be restored…” A plurality, 51% of those polled recommend as the ultimate solution to the external challenge, that we “strengthen the country’s democracy and be more transparent in all activities”.  (Ibid)

That is a clear indication of a domain in which the people wish to see reform, improvement, and change for the better. For our people then, democracy is the answer, and they will recoil from any attempt to resort to any other measures in defence of sovereignty.

The data of this valuable and credible exercise in public opinion polling shows that Sri Lanka’s people cherish national sovereignty and have a democratic vocation, i.e. they cherish both national and popular sovereignty. They stand firmly for an independent, sovereign democracy; a democracy that is not supine and which stands up to the West, but also a patriotism that is more democratic and transparent. Theirs is a democratic patriotism or a liberal nationalism of the centre; an articulation of the ‘national-popular’ and the democratic. It is a vision of a country that is free from interference from without and  is no less free within: that’s a good description of a sovereign, liberal or social democracy.

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• Poll results: How do you think we can end the war and attain peace in Sri Lanka?

If the time ever does come for a comprehensive evaluation of security policies and legislation adopted during the privation and emergencies of war and the peacetime ‘stability’ of a post-war context, it would only be fair to conclude that the unpleasantness of the former far exceeds the unpleasantness of the latter, but it is still just that – unpleasant.

It has not been that long since we read about the callous disregard for human life in a number shootings, which occurred in August 2011, where the police and military used live ammunition to ‘control’ protests that occurred outside police stations and military camps. That particular period passed us by with one protester shot dead in Pottuvil by the military, two protesters injured when the military shot at a demonstration in Kinniya and a few protesters injured when they were shot at by the police in Puttalam. If these incidents seem somewhat remote and indistinct, there is always the equally tragic incident in the Katunayake Free Trade Zone (FTZ) in July 2011, when a protester was killed as a result of live ammunition used by the police along with the grievous assault of other protesters. The incident itself resulted in an inordinate amount of coverage by the press due to the swingeing but short-lived demands for counteraction against the enormities of policing in the country. However, if there were any expectations of a turn around over the policy of using live ammunition against civilians, the brutal killing of a protester in Chilaw by the Special Task Force two days ago demonstrates that once bitten, this Government is never twice shy.

While there was absolutely no demand for introspection and inquiry following the shootings in Puttalam, Kinniya and Pottuvil, the FTZ killing in Katunayaka resulted in a presidential inquiry with the submission of an investigative report by Mahanama Tillakaratne to President Rajapaksa on the 6^th of August 2011. Quite predictably, that particular report did not lead to any sort of critical action by the President. And why not? As one of the most corrupt institutions in the country and one that is responsible – even in a post-war context – for the violation of fundamental rights, custodial killings, encounter killings and outright murder, there is very little else that could result in the lowering of public confidence in a critical organ of the state responsible for civilian security and public order. In this context, it is inconceivable and utterly reprehensible that President Rajapaksa and the Defence Secretary, Gotabhaya Rajapaksa, were unable to consider wider punitive measures and not mere transfers for what was a clear act of police brutality, as well as the urgent reformulation of policies on policing, which at present appear to favour manslaughter and the disproportionate use of force over the proper and legal containment of unrest and responsible management of public protest.

There is, of course, another aspect to the inaction of the government. The unwillingness to follow through with reform could be due to the fact that it is politically expedient to maintain a force for repression in order to militate against an attempt at subversion by citizen enemies. The government is, after all, quite fond of the “you’re either with us or against us” line of thinking, which has – over the last few years – translated into action on the streets and the old practice of vituperative verbal attacks against civil society activists. So, is public security really a concern for this government? If public security is a concern, why are protesters killed on the streets by the military and police? Or is it about repression in order to impede the upstart of larger dissenting movements? If public order is a goal, is it not inevitable that the insidious killing of protesters by the police and military will increase the likelihood of violent confrontations in the future? If there are no gross human rights violations and if there is justice in a post-war context, how are we supposed to interpret the killing of protesters, the brutality of police and military action, and the lack of investigations, convictions and reform? There is a point at which frequent incidental deaths at demonstrations become disconcerting, particularly when it occurs as a result of sadistic and disproportionate policing methods, and when the expectation of justice is an exercise in futility. Is justice a concern for this government? If it is, many are still waiting for its swift hand. However, it would be unfair to portray the incidents highlighted above as clear cases of state brutality since the protesters themselves could have instigated the violence, but this still does not legitimise the use of live ammunition. Surely, if there were enough reasons – in terms of a vital threat to public order – the use of rubber bullets, water cannons, tear gas and effective policing would suffice. The only justification for the use of live ammunition would be if the protesters possessed weapons and demonstrated intent to kill.

In usual form, the Criminal Investigation Department (CID) has launched an investigation into the incident in Chilaw, and while the façade of accountability progresses, the family of the protester who was killed was offered money in return for their silence on the matter – an offer that they rejected. Why is the CID conducting an investigation if other officials – allegedly attached to the police – are trying to pay-off family members in order to impede the investigation? Why is there no investigation into this particular development? Perhaps the disbursement of funds is considered usual procedure when dealing with grievances of this nature, and a substitute for an actual investigation, but is this really the puerile conduct that the police force is willing to embrace in order to save face? It is also quite disappointing that many officials have failed to question the use of live ammunition, and in the case of Chilaw and others like it, the Inspector General of Police, N.K Ilangakoon, seems to be unwilling to put forward a directive disallowing the use of live ammunition on protesters, which – as a result – implies that the IGP actively supports the disproportionate use of force and the violation of fundamental rights.

Too often the defence establishment has faltered and only few have taken Gotabhaya Rajapksa to task for his failures, negligence and fervent statements on policy, which have considerable implications for the way in which the government responds to critical issues in this country given the extent of centralisation. It is precisely because of the precedent set with the failure to ensure proper conduct in the response of the security forces and police to civilian protests – in Navanthurai, Pottuvil, Kinniya, Puttalam, Katunayake and elsewhere – and to institute proper reforms following violations that we have to contend with brutal incidents such as the one in Chilaw. The government seems to have no qualms about the continued use of the military in enforcing public order despite the fact that its interventions have been an unmitigated disaster, and it – wittingly or unwittingly – simply disregards the demands for necessary action that should extend beyond a flippant investigation and, god forbid, the appointment of another commission of inquiry.

And to whom should we rightfully assign overall responsibility and blame for these successive failures in security policy? Gotabhaya Rajapaksa must resign, and so too must the Inspector General of Police. Will you see to it, Mr. President?

• Dealing with law and order as an issue of the Presidential elections
• The duty to talk loudly about Police Reforms
• Protests in Katunayake Free Trade Zone: No police in sight
• The limits of the Mahinda Chintanaya: FTZ workers and Buddhist monks rise up against government
• How bad is the crisis for Mahinda Rajapaksa?

Since Legenda Aurea provided no connections whatsoever with sentimental love, appropriate lore was embroidered in modern times to portray Valentine as a priest who refused an unattested law attributed to Roman Emperor Claudius II, allegedly ordering that young men remain single. The Emperor supposedly did this to grow his army, believing that married men did not make for good soldiers. The priest Valentine, however, secretly performed marriage ceremonies for young men. When Claudius found out about this, he had Valentine arrested and thrown in jail. An additional modern embellishment to The Golden Legend, and widely repeated despite having no historical basis whatsoever is that on the evening before Valentine was to be executed he would have written the first “valentine” card himself, addressed to a young girl variously identified as his beloved, the jailer’s daughter whom he had befriended and healed. It was a note that read “From your Valentine.”

14 February (Tue)
20:00 MUSIC, Nostalgic for the 80s? Billy Ocean performs live with a 14 member band.

V: SLECC (TKTS: Hilton)

Belles-lettres

Jigsaw Rs. 550
Diedre Jonklaas Cadiramen

Jigsaw is a fast paced, easy, interesting read. Diedre Cadiramen’s 3rd book is a slim volume of 15 stories, where some like Black Friday run through only 2 ½ pgs while the longest is 10 pgs. But into these pages the author compacts plenty.

Her style is unadorned. She has a story to tell, which she tells straight with minimal description, no introduction or building up of character through extensive detailing. We need to round out the characters ourselves by the incidents she relates. A plethora of characters parade through her pages: Ruth the day-dreaming only child; Bempy Singho the long standing driver of a Colombo 7 household who gets invited to a wedding and ends up behind bars for failing the breathalyzer test; Naomi who goes to London and ends up earning mints as a hostess in Soho; the characters of a typical up-county tea estate from the dorai to the tappal coolie and thalavar…

Dinner
Chesa Swiss, Colpetty

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Over the past few years, CS have maintained standards of quality and appearance. The charming Parisienne hostess leads you through the clean, neat, warmly decorated foyer that instantly transports you to colder climes and rooms decorated in European style. My own favourite though, is the inner courtyard – which epitomizes tropical dining –exposed to gentle breezes & starry skies.

Creamy Raclette cheese melted over hot potatoes & served with little pickles sets the pace; tender asparagus spears (grown in Kalpitiya!) arrive crunchy, the Risotto with porcini mushrooms is exotic, al-dente and flavor-some; ever since I saw poached chicken on the Australian Masterchef, bland though it may sound, I’ve been burning to try it. The CS version comes smothered in gorgonzola which lets both flavours shine through, neither dominating the other. The fish is grilled & served with a tangy lemon sauce which complements it just right. A creamy crème brulee rounds it all off nicely. All of this combined w/ consistent-ly attentive service makes for a pleasant evening. I know I’ve complained of a not-so-ideal experience before, but in the mood to celebrate or otherwise, I keep going back. Having said that, the prices are a tad too high and the average meal without wine will set you back close to Rs. 4,000. Better save up.

Peeks and sneaks
23 February (Thu)
10:00 EXHIBITION, around 100 established architects & students of architecture display their work. Visit it for ideas & inspiration. To 26/2.

V: BMICH, TKTS

24 February (Fri)
17:30 LECTURE, Asiff Hussein on The origins of SL Muslims (Moors, Malays, Memons & Bohras): Their language, professions and culture

V: OPA (Baudhdhalaoka Mw)
T: 777-772-220 (FREE)

28 February (Tue)

19:30 THEATRE, The Animals & Children took to the streets. 1927 performs w/music, story telling & film. To 29/2.

V: British School Auditorium
TKTS: Rs. 800 to 1000

15 February (Wed)

ART BIENNALE 2012, kicks off and continues until 19/2 in a series of free and ticketed events including exhibitions, lectures, dinners, discussions etc.

V: Nat’l Art Gallery, Sapumal, JDA Perera Gallery, Lionel Wendt, Park St. Mews, Coca, Hempel Galleries, Warehouse Project, Goethe, Barefoot etc.
T: 11 2431903
TKTS & FREE EVENTS

18 February (Sat)
19:00 MUSIC, German Master-works: Aron Konczei, Mozart R. Strauss, Beethoven: Hans-Jurgen Nagel conducts the Symphony Orchestra of SL

V: Museus College Auditorium
TKTS: Rs. 300 to 2000 box plan at Park Street Mews.

19 February (Sun)
15:30 & 18:45 THEATRE, Balloth Ekka Be (Can’t with the dogs) – comedy of errors and disguise (Sinhala)

V: Tower Hall TKTS 777363633

19:00 MUSIC, Jazz guitarist Martin Taylor performs with local artistes Amarasiri Pieris, Nirosha Virajini, Bathiya & Santhush, Kasun Kalhara and others.

V: Nelum Pokuna
T: 0777999169

29 February (Wed)
17:30 MOVIE, The Bride
V: Iranian Embassy (FREE)
T: 11 588225

OK, cultural events are a little thin on the ground in this 2nd half of February. Still, go out and enjoy whatever is on offer, especially the Art Biennale which features lots of talent.

###

Culture & culture is based on the fortnightly email newsletter, Culture Vulture. It is a selective, non exhaustive, non-comprehensive listing of Colombo’s cultural offerings. Its views are un-biased but totally subjective.

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Over time, authoritarian-minded Central Asian leaders have come to appreciate cooperation with Chinese telecom firms as a useful means of bolstering their authority, rights advocates assert. Some civil society groups argue that Huawei and others are willing to “assist the Turkmen government in monitoring cell phone and internet use in exchange for lucrative deals.”

As the article also notes,

US legislators have expressed concern that Huawei and ZTE act as front companies for the Chinese government, and represent a grave “cyber-security threat.” The chairman of the House Permanent Select Committee on Intelligence, Michigan Republican Mike Rogers, asserted during a congressional hearing last October that China is engaged in the “brazen and wide-scale theft of intellectual property from foreign commercial competitors.”

“Attributing this espionage isn’t easy, but talk to any private sector cyber analyst, and they will tell you there is little doubt that this is a massive campaign being conducted by the Chinese government,” he added.

It is worth noting that major telecoms provider in Sri Lanka have multi-million dollar contracts with ZTE and Huawei. The very dongle used to upload this story, on Etisalat, is made by Huawei. In fact, the overwhelming majority of mobile broadband internet access devices sold in Sri Lanka by Mobitel, Dialog Axiata, Etisalat and Airtel are made by either ZTE or Huawei. And if one looks at the value of contracts signed by telcos operating in Sri Lanka with these two companies, it dwarfs the investments made Central Asian countries as noted in the Eurasianet.org article. The largest investment noted there is from December 2006, when “the China Development Bank (CDB) gave a $70.6-million loan to the Tajik-Chinese mobile operator TK-mobile for new equipment purchased from ZTE”.

In June  2011, it was reported that “Sri Lanka Telecom (SLT) has awarded a long-awaited LKR3 billion (USD 27 million) fibre-optic network rollout contract to China’s ZTE Corp as part of the national ‘i-Sri Lanka’ project”. A month earlier it was reported that “Mobitel signed an agreement with the country’s Board of Investment for equipment import duty exemption on its LTE network deployment in partnership with another Chinese vendor, ZTE”. A Press Release on these investments by ZTE notes,

“ZTE’s SDR-based Uni RAN and ETCA/T8000-based Uni Core solution could support products of different platforms such as CDMA, GSM, and LTE. With this solution, Mobitel was able to use just one access network and one core network (RAN & Core) to realize network expansion and seamless evolution. In terms of future network upgrading, only a single baseband processing board is needed to be added or replaced, with the remaining components being realized through software upgrades. This feature will ensure smooth evolution and maximum reduction of TCO.”

When the marketing and technical gobbledegook is unpacked, what emerges is a degree of lock-in to ZTE’s products and services. While this is purported to be cost-effective over the longer-term, it also suggests a reliance on ZTE’s network infrastructure, products and services, which includes, as noted, software upgrades. Media reports also note that SLT’s ADSL infrastructure is underpinned by Huawei technologies. In September 2007, it was noted in the media that “Indian telecom firm Bharti Airtel has signed a 150-million-dollar deal with China’s Huawei Technologies to set up a mobile phone network in Sri Lanka”. The same article notes that this network infrastructure will support “second- and third-generation mobile services” of Airtel in Sri Lanka. In May 2011, it was reported that the two largest mobile telcos in Sri Lanka, Mobitel and Dialog, were basing their 4G/LTE infrastructure on ZTE and Huawei, respectively. A year earlier, in 2010, media reports suggest a big investment by Dialog Axiata in Huawei technologies to improve its network operations. In 2005, media reports in China note a USD 40 million contract to “supply equipment to Lanka Bell for a CDMA wireless local loop telephone network system and fixed wireless terminals to take telecommunications to rural Sri Lanka”.

Chinese investment in Sri Lanka’s telecoms infrastructure is so pervasive that it prompted a US diplomatic cable on it, by the Embassy in Colombo. Marked ‘Confidential’, the report from December 2009 notes,

Huawei Telecommunications, a Chinese owned corporation, has worked diligently to corner the telecommunications infrastructure market in Sri Lanka. Huawei maintains a 33% sector share of existing infrastructure maintenance. Alcatel-Lucent and Ericcson are the two other major competitors, and each has a 33% sector share of existing infrastructure maintenance. Another Chinese company ZTE has a tiny 2% marker share. Huawei Sri Lanka is expanding aggressively into the new infrastructure market in the North and East, where they own more then 75% market share. Alcatel-Lucent and Ericcson are not major players in the new infrastructure market, and they seem disinterested in increasing their market share.

The cable goes on to note,

The Huawei General Manager for Marketing and New Development recent advised us that Huawei hopes to have more than 85% of the new infrastructure market by the beginning of 2010, as well as a larger share of the existing infrastructure maintenance market… No other competitor comes close to matching the breadth and width of Huawei’s operations in the country. Huawei works with all Sri Lankan fixed line and mobile service providers. It has a monopoly on support to Dialog Mobile and Mobitel 3G infrastructure…

Huawei equipment is sometimes suspect and the quality of their work is often questionable. Quality concerns do not seem to be hindering its business model. Some have speculated that Huawei has been assisted by the Chinese Embassy, but we could not confirm whether these suspicions are well founded.

In addition, Huawei,s rise has also bee helped by the excellent relationship between the Sri Lankan and Chinese government. Huawei Sri Lanka’s robust business presence and significant market-share is in keeping with the Chinese outlook to involve itself in all important facets of the marketplace. If Chinese involvement in Sri Lanka is indeed strategic, and it likely is, Huawei’s success is a win-win for China.

Wikileaks cables also suggest a concerted effort, backed by China’s Politburo, to hack into key computer systems, as “part of a coordinated campaign of computer sabotage carried out by government operatives, private security experts and Internet outlaws recruited by the Chinese government”. China’s approach to and regard of human rights is a matter of public record. What is less evident is the means it appears to go to in order to clamp down human rights activism and advocacy. As Google notes in late 2010, China had routinely targeted its platforms and products used by human rights activists, both in the country, and outside. Though first flagged by Google, Operation Aurora, as it has come to be called, is incredible in its reach, and sophistication. As the Guardian notes in August 2011,

Dozens of countries, companies and organisations, ranging from the US government to the UN and the Olympic movement, have had their computers systematically hacked over the past five years by one country, according to a report by a leading US internet security company. The report, by McAfee, did not openly blame any country but hinted strongly that China was the most likely culprit, a view endorsed by analysts.

As the report referenced in the Guardian article by McAfee notes, 32 unique organisational categories, across many countries, were compromised as a result of this hacking.

The report generated renewed interest in APTs (Advanced Persistent Threats), which McAfee describes as a modus operandi of hacking that is “motivated by a massive hunger for secrets and intellectual property”, over the long-term.

The Eurasianet.org article stresses that “allegations against Huawei and ZTE are almost impossible to prove”, yet notes that “the United States is not the only country to have misgivings about Huawei, a firm founded by Ren Zhengfei, a former engineer with the People’s Liberation Army”. Questions for Sri Lankans arise from our reliance on Chinese network infrastructure to generate, archive, exchange and disseminate content related to, inter alia, our intellectual property, innovation, human and national security – within Sri Lanka, and with friends and partners around the world. It is doubly dangerous for human rights activists, whose communications could be compromised at a very deep network level, in addition to specific surveillance tools and platforms that can be added retroactively to existing network infrastructure, the likes of which a Wall Street Journal investigation from last year has a positively frightening account of.

At a time when China’s portfolio in Sri Lanka’s economy is growing exponentially, questions over the bona fides of its massive investments in our national communications networks won’t go down well with the Chinese or Sri Lankan governments. ZTE and Huawei have themselves responded to the US Congressional investigations into their operations, with the expected repudiation of all the charges of espionage. Concerns over their operations in Sri Lanka will no doubt be taken to be those coming from quarters who are anyway opposed to government, and scoffed at by all the Sri Lankan telcos themselves. Yet the issue is more than just of deep concern for the dwindling dissent within the country, and the few human rights activists who dare speak out against the regime. The communications network infrastructure in question connects us all, irrespective of any kind of party political, ethnic or other identity and geo-physical based divide. It is the DNA of our country, and how we engage with domestic challenges as well as global opportunities. It may be only of concern to a few today, but the implications of possible network intrusions, that can go undetected for years and the full scope of which may never be accurately known, affects us all.

Perhaps the example of the Trojan Horse – seen overwhelmingly as a gift, but with deadly consequences – is apt to recall.

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The discussion on ‘ Economic Development’ as a national goal, must demonstrate a perspective strongly rooted in modern science.  However, the goals of today suggest that our appreciation of the scientific method of evaluation is a little short. Nevertheless, it is hoped that Sri Lanka’s contribution at the Rio + 20  and at other international conventions thatdiscuss the common future of mankind can propose something innovative rather than the mediocre dribble of the past. Having been party to these processes, the probability of a repetition of past mediocrity is great. Thus in the interest of the profile of this nation and in the interest of a benign future for our children, the following reasoning is advanced. One hopes that the Sri Lankan delegates to the various international conventions this year will raise the need to ‘value photosynthetic biomass’ at all plenary sessions as a national contribution.

Life on Earth learnt how to maintain gas and material flows, optimum for the evolution and sustainability of biodiversity. Carbon Dioxide, although essential to the process of life, was often introduced into the atmosphere by volcanic processes at disruptive levels, throughout geologic history. But the gas has not concentrated in the atmosphere, because it was sequestered by living things and put away out of circulation from the biosphere of living carbon, so that the environment was stable for life. This store of carbon was fossilized and has been slowly accumulating over the last few hundred million years and has acted as the storage of excess carbon.

In our rush to create the new petroleum and coal driven economy, this very simple and fundamental fact has been ignored.  Carbon that cycles through living systems represents a fixed proportion of the planetary carbon, one part solid, like the carbohydrates in trees  and one part gas, as in atmospheric Carbon Dioxide gas. If excess Carbon Dioxide enters the atmosphere through tectonic processes such as volcanism, photosynthetic activity removes this excess carbon dioxide from the biosphere and that excess   is deposited as fossils to enter the lithosphere (rocks),  never to interact with the biosphere again.  This deposition is translated into vast quantities of fossilized carbon that has been removed from the biotic/atmospheric cycles. Unlike the biotic cycles of Carbon that stay deposited for tens of thousands of years. The fossil pools have deposition lifetimes of tens or hundreds of millions of years.

There have been fluctuations of Carbon Dioxide in the atmosphere in the past but equilibrium was gained and balance was restored.  All this was long before humans.

The first human driven change that affected the local and regional climates was the massive loss of the global forest stock with the advent of colonization. This loss represents a debt to every nation that lost its forests as well as a debt to planetary atmospheric equilibrium. This debt can be settled by re-establishing the sequestered stocks of carbon that were lost by reforestation. But once this debt is settled there will be no more room on this planet to plant more trees to sequester the fossil carbon that is currently being released so irresponsibly.

Fossil carbon is the principal driver of climate change. As a substance that is over at least twenty million or more years older than the timber of the forests that were lost, it represents a material with a far higher carbon cost than a forest.  It is also a fact that the levels of Carbon Dioxide, a major atmospheric gas are increasing in the atmosphere. This increase is linked to the destabilization of the climate, the burning of the fossil stock of Carbon being the principal driver of change. It is now very clear that the stability of planetary climate cycles are in jeopardy and a very large contributory factor to this crisis is the profligate activities of modern human society.  It is the same activity that fuels the current vision of ‘Economic Development’ in Sri Lanka. The entire infrastructural investment, be it stadia, complexes or towers, require enormous amounts of energy for their operation.  As our sustainable energy production is abysmally low, we will have to provide fossil energy to maintain this infrastructure, an activity patently destructive of the global climate equilibrium.

Another area of concern is that the system of agriculture that our farmers have been lured into. Through this type of agriculture they have been  made addicts to fossil fuel energy for motive power and fertilizers. Not only do we loose vast sums of money and add to a decline in health, both human and environmental; we also have this nation adding yet another burden to the planets climate stability. In short we are ‘bankrupt’ as an independent, agricultural nation, also very cynical if we ever claim to be ‘green’ on any international stage.

On the wider picture, it is common knowledge, that there is a value difference between fossil derived Carbon Dioxide and biologically cycling Carbon Dioxide,  but this fact has been ignored by the so-called ‘scientists’ who run the IPCC.  Any high school child will know this fact, but it is ignored by the ‘climate scientists’ who claim to know best.  Whatever their motives, the value differential of these cycles, biotic and  fossil, must be recognized.   Biotic carbon operates on time frames of tens or hundreds of thousands of years and fossil carbon in tens or hundreds of millions years.  Further, fossil carbon never interacts with the living or biotic cycle.  Fossil carbon entering the biotic cycle is the fundamental reason as to why there is an accelerating climate change effect. However, the growing of trees to compensate for fossil carbon and paying the same price as for biotic carbon is unfair and tantamount to ‘carbon laundering’.  There is no way to equate the carbon from oil and coal with the carbon from a forest.  One has a space in the biotic cycle the other does not.  Carbon that cycles through living systems represents a fixed proportion of the planetary carbon thus there is no space in the atmosphere for fossil derived Carbon Dioxide.

Carbon Dioxide is extracted from the atmosphere by plants and converted into a solid form. This process has been hailed as a tool by which the problem of increasing gaseous Carbon can be addressed.  ‘Plant trees which soak up the carbon dioxide’ the reasoning goes ‘and you can contribute to reducing the atmospheric burden of that gas’.   Living woody biomass has been the first and logical candidate to be used as a potential tool in sequestering atmospheric carbon and has been featured largely in ‘Carbon capture’ projects.  Although the volume of living biomass has now been measured on most global models of carbon cycling and this measure is being used in the evaluation of carbon stocks, there is a an urgent need to address the fundamental differences between the components of living biomass, photosynthetic biomass and respiring biomass.

Photosynthetic biomass performs the act of primary production, the initial step in the manifestation of life. The biomass so termed has the ability to increase in mass through the absorption of solar or other electromagnetic radiation while releasing oxygen and water vapour into the atmosphere. Respiring biomass is that component of living biomass that uses the output of photosynthesis to make the complicated biological patterns of life; it consumes oxygen to power its functions, and does not have photosynthetic functions itself. This distinction would seem to be fundamentally important when assessing the value of biomass that is being addressed. It is only this photosynthetic biomass which powers carbon sequestration, carbohydrate production, oxygen generation and water transformation, i.e. all actions essential for the sustainability of the life support system of the planet.

Yet currently, it is only one product of this photosynthetic biomass, as sequestered carbon, usually represented by wood/timber, that is recognized as having commercial value in the carbon market for mitigating climate change.  The ephemeral part, the leaves, are generally ignored, yet the photosynthetic biomass in terrestrial ecosystems are largely composed of leaves, this component needs a value placed on it for its ‘environmental services’

It is not difficult to place value on photosynthetic biomass today.   Initial computations are based on the current values of the carbon market are currently in excess of 125 billion dollars, assuming that the global market would pay at least a similar  amount to maintain our life support system, the 93.1 billion tons of photosynthetic Carbon currently in stock would be roughly worth about 1.35 dollars per kilogram.

It is this biomass that has to grow in order to sequester the lost biotic Carbon. With such growth we will see more Oxygen, Carbon sequestering and water cleansing, throughout the planet.  Much of the biomass to be gained is in degraded ecosystems around the planet, these areas are also home to the worlds rural poor,  but what these degraded ecosystems do have, is great growth potential for generating photosynthetic biomass. If the restoration of these degraded ecosystems to achieve optimal photosynthetic biomass loads becomes a global goal, the amazing magic of photosynthesis could indeed help change our current dire course, create a new paradigm of growth and make the planet more benign for our children.

Instead of flogging the dead horse of fossil energy based growth as ‘Economic Development’, will we have the commonsense to appreciate the value of photosynthetic biomass and become the first country in the world to propose setting such a value? The realization of which will enrich not only our rural population but rural people the world over !

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Photo courtesy GlobalPost. Stephen Hird/Reuters.

In January 2012 I traveled to Sri Lanka with a group of fellow students from the University Virginia School of Law.[1] We wanted to learn about legal issues in other countries, and we arrived in Sri Lanka eager to hear views from government officials, NGO workers, and local citizens. I chose to focus on arbitrary detention in a number of settings including the internment of IDPs from May to December 2009, the rehabilitation of former LTTE members, and the labyrinth of Sri Lanka’s prison system, including many who have disappeared while in custody or are being held without charge. The following is a brief summary of the testimony gathered from nearly three weeks of interviews in Sri Lanka. My interviews took place primarily in Colombo and the Vanni. A more in-depth exploration of arbitrary detention in Sri Lanka based on these interviews, including a substantial examination of Sri Lanka’s obligations under Article 9 of the International Covenant on Civil and Political Rights, will be published in May 2012. Please contact me if you wish to be notified when the final paper is published or if you would like to be interviewed on this topic.

1.     Internment

The first type of detention I looked at was the internment of IDPs from May 2009 to December 2009, immediately following the war. This form of detention has received a fair amount of international coverage, but beginning in December 2009 most of the IDPs were allowed to move about more freely and attention to this issue receded. An argument could be made, however, that the IDPs are entitled to some type of compensation for the time they were detained if such detention was in violation of International Covenant on Civil and Political Rights (ICCPR) Article 9, as Article 9 states, “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”[2] The information below came from interviews with IDPs who were held against their will in the IDP camps from May to December 2009. Seven of the interviewees are still living in Menik Farm, one of the IDP camps, because of land issues that have prevented their resettlement. The rest were released in December 2009 and have moved in with family members or returned to their home villages.

For the most part the stories of life in the IDP camps reiterated the reports I had read before coming to Sri Lanka. The IDPs, who were mostly Tamil civilians from the North, reported feeling like they were persons of interest and that the Army was there to guard them rather than protect them. The story of one middle-aged woman, now returned to her home in Mannar district, serves as a typical example. This woman had no affiliation with the LTTE, yet she still suffered degrading treatment when she first arrived at the IDP camp after fleeing the conflict zone. Upon arriving in the camp she and the other IDPs were placed under close surveillance while the Army questioned people and attempted to screen out LTTE members – she was subjected to a strip search and was forced to go to the bathroom in front of the Army men, as they would not allow the IDPs to leave the presence of the guards even for these private acts. She began crying while telling this part of her story, saying that she felt shame because of this degrading treatment. She reported that the conditions in Menik Farm, the camp where she ended up, were initially very bad – the camp was overcrowded, she had to wait in line for hours to receive water, and there was sand mixed in with the rice they were served.

Even as life began to settle into routine at Menik Farm, she still felt that she and the other IDPs were under suspicion. She was not allowed to visit with her mother, who was held in a different section of the camp across the street, but she snuck out to see her mother even though she said she would have been beaten if she had been caught. She reported being interrogated repeatedly while in Menik Farm, saying that every family was questioned at least twice per month during the first six months at Menik Farm. She also said that there were daily head counts to make sure no one had escaped. The interrogations and close surveillance made her feel like she was under arrest, and that the camp was not created for her benefit or protection. She reported knowing several people who had tried to escape from Menik Farm during those first six months, by climbing the barbed wire or burning the entrance checkpoints, but that those who were caught doing so were severely beaten. During this time she applied to go live with relatives, but said her petition was denied until the general release in December 2009. The only people she was aware of who were able to leave the camp between May and December were the elderly or expecting mothers. When she was released in December 2009, she received some aid from humanitarian organizations, but nothing from the government – a fact that she says hinders her trust and reconciliation with the government to this day. She said that no matter what the government did now to try to win her trust, she could not give it because of how she was treated in Menik Farm.

Other stories from IDPs on the internment period between May and December 2009 echoed the sentiment of feeling trapped and under suspicion by the government. During the initial period of internment from May to December 2009, many reported difficulty in leaving the camp, even for medical emergencies. One woman was allowed to accompany her child to the hospital, but said that they were under a police escort the entire time, had to register multiple times during the journey, and were forced to leave their ID cards as collateral to make sure they returned to the camp. One man reported that he knew several people who had died while in Menik Farm because their illnesses were not considered “serious enough” to warrant a trip to the hospital. In addition, the inability to move freely in and out of the camp essentially precluded employment, and also made it very difficult to locate family members following the war or reestablish community connections. This calls into question the government’s claims that the IDP camps were set up as humanitarian measures, as it is difficult to imagine a justification under a humanitarian framework for preventing people from working or reuniting with their families. It was also reported that if someone died in the camp, the body would be removed by camp authorities, who would bury it without allowing the family to leave the camp in order to hold a funeral. These conditions caused one man to summarize the internment period by saying, “Even in prison you have some freedom, but here we did not even have that.”

Other IDPs again reported substandard living conditions in the camps, including four families living in a 10 foot square room, one toilet being used by up to 60 people, and lines for drinking water that sometimes were as long as 2 km. Petty theft and rape of young girls, by both the Army and camp residents, remain problems even now for those still living in Menik Farm, and the current residents expressed concern that life in the camps was destroying their culture and morality. Furthermore, it was reported that when some members of Menik Farm met with workers from an Indian NGO to discuss the camp conditions, the drinking water in the camp was shut off for five days afterwards – with the camp authorities explicitly saying that the water was withheld as punishment for talking to the NGO.

These accounts deserve attention. Even though many of the 300,000 IDPs have since been released from the camps, their forced internment from May to December 2009 and degrading treatment they suffered there should be brought to the attention of the international community. This internment, particularly the harsh conditions and extreme surveillance, was not justified as necessary to national security, and IDPs who were detained deserve some sort of remedy for this violation of their rights. The government should also be sharply criticized for this policy, and further investigation should be conducted into the IDPs claims that the internment was a cover for maintaining control over the Tamil population. Furthermore, some IDPs are still living in Menik Farm, and their concerns about rape in the camps and the government-created obstacles to resettlement on their lands should be addressed.

2.     Rehabilitation

Immediately after the war ended in May 2009, the government began announcing in the IDP camps that anyone who had spent “even a minute” with the LTTE should surrender themselves to the Army. Fearing that worse would happen to them if they refused to surrender and were found out later, 11,982 Tamils surrendered. These people were then separated from the rest of the IDPs in the camps and, after a few days of screening, given five minutes to gather their belongings before being sent to rehabilitation facilities. Although the Sri Lankan government has touted its rehabilitation program as an example of its mercy to the LTTE, the international community has failed to question the true motives of the government. Interviews with Tamils who completed the rehabilitation program show that the government propaganda surrounding rehabilitation does not accurately portray the program and its effects on the Tamil community.

To fully understand the story of rehabilitation, it is necessary to first see the picture the government paints. While I was in Sri Lanka, I met with the Commissioner General for Rehabilitation, a Psychologist who helped design the program, the Ministry of Defense, and visited Poontottem Rehabilitation Centre. They all told essentially the same story – the rehabilitation program was nothing but successful, and that “beneficiaries” from the program (as the surrenderees are called) had all chosen to go willingly and none wanted to leave while there. The government described categorization and screening as efficient and thorough – with those who had been forcibly recruited or had only tangential involvement being released very quickly, and explained that beneficiaries spent most of their time completing various vocational trainings that were intended to give them a fresh start after release. Although the beneficiaries did not have access to legal counsel at any point during the process, I was told that counsel was not needed since no one wanted to challenge their position in rehabilitation or leave. I received the same answer when I asked about judicial review or a process for complaints. I was also told that interrogations in rehabilitation were very infrequent, requiring a special court order before they could take place. Although a full list of people in rehabilitation was never published, I was told that the centers made every effort to contact family members and any relative who wanted to inquire about the status of a person could do so quite easily.

The bright vision painted by the government was a far cry from the reports I heard from people who had gone through rehabilitation. I met with a total of twelve individuals who had participated in the rehabilitation program. The first concerning element was the lack of correlation between time spent with the LTTE and the time assigned to rehabilitation. Some young people who were forcibly recruited and spent only a few days or months with the LTTE were forced to be in rehabilitation for the maximum stay.  For example, one man had been forcibly recruited and acted as a watchman for ten days for the LTTE in 2007 before bargaining his release, yet he was in rehabilitation from May 2009 to August 2011. Another man was forced to do just twenty days of labor for the LTTE at the very end of the war, yet the government confined him in rehabilitation from May 2009 until July 2011. There were several other stories of individuals who had no field participation, but had been forced to work for a few months in the kitchen or building bunkers who then had to spend years in rehabilitation. These accounts seem directly contradictory to the government’s claims of effective categorization and quick release for those who had minimal involvement or were forcibly recruited.

Although in some post-conflict settings rehabilitation for former soldiers may be necessary to deal with the trauma of war and “de-radicalize” the patterns of violence they learned, rehabilitation seems inappropriate for those who had such minimal involvement and no history of violence or willing participation in the LTTE movement. The number of people in each of the government’s internal categories for rehabilitation confirm that the majority of people who went through rehabilitation had been classified as having no involvement in operations or attacks.[3] It is difficult to imagine that the government would be lenient in categorizing, yet by the government’s own numbers only 1,351 of the surrenderees were considered leadership or members who took part extensively in operations or attacks. In contrast, over 8,000 surrenderees were classified as either forcibly used or not having taken part in any LTTE operations. It is difficult to see why these citizens, who by the government’s own classification had very little connection to the LTTE, deserved to be separated from their families and undergo a full rehabilitation program for months or years. Since the first group of “beneficiaries” (or surrenderees, as I will call them) was not released until October 2010, it appears that those even with the most minimal and forced involvement were detained in rehabilitation from at least May 2009 until October 2010.

Despite the government’s claims that the surrenderees were grateful for the rehabilitation, the surrenderees’ descriptions of that time show little differentiation between the rehabilitation setting and formal detention. First, no surrenderee that I spoke with was aware that they had any choice about being in rehabilitation, discrediting the government’s claims that everyone who entered rehabilitation did so voluntarily. While the government assured me that every surrenderee had signed the proper consent forms, no one that I spoke with remembers signing anything. The surrenderees reported that several people had tried to escape the rehabilitation centers, but that these were either removed (presumably to a formal detention setting) or beaten. Although rumors began to circulate after about six months that you could go before a judge instead of being in rehabilitation, the surrenderees viewed this option as simply a way for the government to take money from their families, as they were told that appearing before a judge would cost about 1-2 lakhs (a lakh is about $8,700 USD) and would probably be simply rubberstamped at the court and sent back to rehabilitation anyways. The surrenderees also reported that they were interrogated every fifteen days, and many reported being beaten during interrogations in rehabilitation. The government conceded that information from these interrogations was sometimes used to remove people from rehabilitation and place them in formal custody, further undercutting the government’s picture of rehabilitation as an amnesty tool. Most surrenderees felt that they were being closely watched, and that feared that they could be sent to prison at any time from rehabilitation, so most chose to censor their speech and tried to keep as low profile as possible during their time in rehabilitation.

One group of surrenderees laughed when I told them the government claimed that they wanted to be in rehabilitation, saying that they had wanted to be with their families not wasting time sitting in a center. Some referred to it as a very dark and painful time, saying that while maybe some had benefited from being in rehabilitation, none of them had personally found it to be a transformative or useful experience and that it was difficult to be away from their families. They also reported that the trainings were not as frequent as the government claimed, as only four of the twelve individuals I spoke with had completed a training program in rehabilitation, and even these were often very short courses lasting only a few weeks. No one reported any of these trainings leading to actual employment afterwards, and many have struggled to earn money since being released. One girl, who had completed a training in sewing, was told that she would receive a sewing machine from the government after her release, but it was never delivered.

Although the rehabilitation officials claimed that most of the beneficiaries’ time was spent in trainings, the numbers also do not support this – as there were only 10,154 total participants in the vocational programs out of 11,982 surrenderees. The total participant number includes people who took part in more than one training, so if someone did three trainings they would have been counted three times in the 10,154 total. This means that by the government’s own numbers, on average each surrenderee participated in less than one training. Since the government acknowledges that many of the trainings lasted only a few weeks, or at most three to six months, if each person is doing only one or maybe no trainings, one wonders what the surrenderees spent all of their time doing in rehabilitation. Their answers to this are perhaps not surprising – surrenderees I spoke with reported doing manual labor such as clearing jungle or working in gardens for the majority of the day. Some created handicrafts, which they said the government sold along with the produce from the gardens where they worked. They also reported that at the center a group of twenty surrenderees would be assigned each day to doing all of the cooking for the center. Some women were also sent to garment factories to work, but they were not fairly compensated for this (5000 rupees per month, which barely covered the living expenses they had during that time) and also reported sexual harassment during their time at the factory. The surrenderees said that counseling was only offered on Saturdays at the rehabilitation centers, and that during the week most of the time was either spent working or waiting around for the next interrogation.

Finally, when the surrenderees were eventually released, they were given exit forms in Sinhala (which very few could read) and told that they would have to check in regularly with the military in their home village. Many reported harassment from the Army, including frequent interrogations and home visits, which intimidate the community and surrenderee’s family. Many expressed concern over the home visits, saying they do not feel safe leaving their family, especially mothers or sisters, alone if the Army might show up at any time. Limitations on travel continue, which impacts employment opportunities. This on-going suspicion, coupled with the apparent lack of substance to the rehabilitation program (with reports on such limited training, counseling, etc), raises concerns that rehabilitation is being used as a cover for prolonged detention.

These issues, including the frequency of interrogations, the wide swath of low-ranking or forced LTTE recruits kept in rehabilitation, the frequent transfers between rehabilitation and formal detention, and the lack of monitoring of the rehabilitation programs by either the Sri Lanka courts or outside observers raises concerns that the primary purpose of rehabilitation was not altruistic as the government claims. Some activists believe it was used to maintain tight control over a population that the government wanted easily accessible for questioning. Some also believe that it has been used to “make an example” of those associated with the LTTE and remind them how complete the government’s control is over them now, a threat that impacts the surrenderees’ comfort with open expression of political views or other opinions. Regardless, it is difficult to see how this program of rehabilitation, especially when applied to forced LTTE recruits and Tamil citizens with very minimal involvement, has brought about any form of reconciliation or built trust between the government and the North.

3.     Surrenderees in the Prison System and Disappearances from Custody

Another topic that I touched on briefly during my interviews was the on-going problem of people being detained without charge in prisons such as Boosa and reports of disappearances. On disappearances, I met with people related to two cases in particular. Both were last seen in military custody (a 15 year old girl who was seen with the surrenderees right before they went to rehabilitation and a husband who was last reported as being a rehabilitation center in Vavuniya before being transferred out to a formal prison). Both cases had witnesses, including a letter from a fellow surrenderee in Vavuniya telling the wife that her husband had been taken from rehab by a government intelligence group (CID), but in both cases the witnesses are too afraid to testify in court, which would be necessary to start a formal inquiry. I made inquiries with the government for these families, but, although the government initially promised to help, they have not provided any information to date.

Lawyers in Colombo report that people getting “lost” in the detention system is common. The government has restricted access of lawyers in all of the prisons, requiring them to get advance permission and putting a guard in the meetings to prevent confidentiality. Prisoners are also frequently transferred without notice to the attorneys or the family. One attorney group reported that on average they receive permission to visit only about half of the clients they request, with the other half being either flatly denied or the government responding that the person requested is no longer at that detention facility. Most of these prisoners are surrenderees who were either sent immediately to prison instead of rehabilitation or were transferred from rehabilitation. They have not been charged with a crime, even though most have been in detention since the war ended in May 2009, and their continued arrest is based only on a rubberstamp given by a Magistrate who visits the prison each month and re-approves all detentions. That Magistrate is not required to give any reason for the re-approval, and his power to release or set a bail is severely curbed by the Prevention of Terrorism Act, which gives most of the discretion on these matters to Executive officials such as the Attorney General, the Defense Minister, and the High Court.

Although a fundamental rights petition could be filed to challenge the detention, most detainees are too afraid to do so. They are afraid that if they challenge the detention, the only result will be expediting their indictment. The attorneys I met with, who have 300 open cases of prolonged detention of surrenderees without charge, were not optimistic that filing a fundamental rights petition would result in actual release in most cases. They believed the court would not be fair and would put too much weight on fabricated government evidence or confessions that were obtained through torture (confessions are allowed as evidence under the PTA, a departure from the standard Sri Lankan prohibition on the use of confessions during a hearing). Those who have had expedited indictments have typically received life sentences even for minor involvement. The attorneys stressed that the vast majority of their cases are not high level LTTE, most of whom bargained with the government and never spent time in either rehabilitation or detention,[4] but instead low level LTTE members. They believe people in detention were not the ones giving orders, but instead the ones simply carrying them out – which raises questions of the appropriateness of legal action in these cases. The attorneys believed the government was simply making an example out of these low-level members – detaining those who had minor involvement in order to send a message to the LTTE diaspora.

This system of punishment seems counterproductive to reconciliation. Many of the ex-cadres and citizens in the North that I spoke were not naive about the nature of the LTTE. Many had encountered the LTTE’s forced conscription policy, either personally or through one of their family members, and this has left some deep wounds in the community. In this aspect, the citizens of the North and the government might be aligned – punishment for the highest leadership of the LTTE, including those who committed war crimes under international definitions, may provide a sense of justice for those both in the North and the South. Punishing low-level LTTE recruits who had limited involvement or were forced to carry out orders under the threat of death, however, is only going to further alienate the North. When the government detains low-level cadres while reintegrating some of the LTTE’s most prominent leadership, it serves as a double betrayal – first, by the LTTE who forced civilians to fight for them, and second, by the government who is punishing those very same civilians with lengthy detentions and sham trials. A general amnesty for political prisoners and LTTE members who simply carried out orders rather than planned attacks might serve as a much better bridge to reconciliation and unity with the North than any rehabilitation program ever could.

Without adequate records or monitoring by independent observers, the surrenderees in detention are vulnerable such abuses and have little hope of obtaining a fair trial or justice. In addition to the looming prospect of a life sentence, there have also been reports of torture and, as the cases I mentioned at the opening exemplify, the restrictions on contact and lack of notice about transfers opens the detainees up to torture, disappearance, and extrajudicial killing.

Conclusion

Everyone I spoke with, both in the North and the South, wants to see lasting peace and true reconciliation. My interviews on the current detention policies, however, suggest that such reconciliation is simply not going to come easily with the present system of rehabilitation and detention. The program of rehabilitation and on-going detention without charge of surrenderees continues to breed distrust among Tamil populations in the North, and many are still struggling to rebuild their lives after they were severely disrupted by the IDP internment. Opening up the detention system to independent monitoring and full accountability, including an honest investigation with possibility of compensation for those wronged by internment and rehabilitation, may go a long ways to restoring trust between the citizens of the North and the Sri Lankan government.

• Cluster munitions, inhumane IDP camp conditions and the White Flag incident: More disturbing leaks from UN report
• Breaking News: IDPs in Zone 3 and 4 in Menik Camp affected by flooding
• Breaking news: Flooding and unrest again at Menik Farm?
• A first hand perspective of Sri Lanka’s largest IDP camp: Are they really ‘our people’?
• First images: The flooding in Menik Camp and the increasingly dire situation for IDPs

Photo from The Struggle for Justice blog

Introduction

Lankan society in its post-1948 history has undergone many violent conflicts in the form of pogroms, insurrections, and a civil war. The latest round of violence said to have ended with the military defeat of the LTTE in 2009 continues now at a much lower level, but seems to operate throughout the land. These campaigns of violence have caused collective social trauma within the society.

With the end of the war, the opportunity was ripe to rebuild the country and reconcile the many divisions. During the war, of course, many statements, assurances and pledges were made that the issues of Tamil people that culminated in an armed conflict would be resolved through major constitutional and legal reforms including devolution of power to the periphery, though after the end of the war, such measures are yet to come to fruition.

International situation

The reports of global capitalist financial institutions indicate that the present financial and economic crisis is structural, persistent and long-term. In many countries, industrial and agricultural production is being adversely affected including in the bastions of capitalism, the EU and the USA. The dominant capitalist model of neo-liberalism, based on free-market paradigm underpinned by deregulation and privatization has not been beneficial to the working people. Relocation of industries to more favourable and profitable regions, outsourcing of labour-intensive production and application of technological innovation to reduce labour intensive work have led to high levels of unemployment.

Yet, neo-liberalism does not wish to give up their hold on the world in a peaceful manner. The current drive of global capital to acquire and control all possible resources such as hydrocarbons, land, water, minerals and forests needs to be understood in this light. In the name of combating terrorism and promoting democracy and human rights, neo-liberal forces are waging its ruthless war on resource-rich countries the world over.

A decade of war in Afghanistan and Iraq has failed. Pakistan and Yemen have become destabilised. Lebanon, Palestine and Libya have been devastated. Nonetheless, neo-liberals have not given up their policies of invasion, intervention and destabilisation. Unofficially, war has been declared on Iran and Pakistan. The neo-liberal camp has been repositioning their troops, armaments, logistics and coalitions to launch a surgical strike on Iran. Iran has been subjected to sanctions, attacks on military and missile installations, killing of its nuclear scientists, and cyber warfare. The case against Iran is based on speculation, even weaker than that was used against Iraq. Iran is an authoritarian state, but surrounded by countries carrying weapons of mass destruction such as the US, Israel, Russia, Pakistan and India. On the other hand, in Iran’s favour, it has not invaded any country in its recent history. Escalation of this conflict, which may happen any time soon, will destabilise the whole world and its economy.

Last year, agitations for political and personal freedom spread from Occupy Wall Street movement through the peoples’ uprisings in the Arab world to protests against economic crises in European countries, Chile, Israel and elsewhere. Young people, mostly unemployed secular students with no future prospects in life led these protest campaigns. They were not bound by any ideology. Apparently, their demands related to dissolution of centralised power, and assurance of their rights for autonomy and personal freedom.

The outcomes of these uprisings and protests remain uncertain mainly because the ruling elites in these countries mimic compromising gestures while holding onto power in the hope that the peoples’ momentum towards democracy and threats to the ruling elite’s existence will fade away with time.  The people continue to demand change for the better. The regimes are utilising sectarian divisions based on religious and tribal affiliations to contain peoples’ uprisings and to safeguard interests, privileges and power of the elite.

Neo-liberalism continues to be the main challenge facing sovereignty of developing countries like Sri Lanka.  The dominant progressive forces of the working people need to determine the direction of change that will control foreign capital investment for the benefit of people, define alternate developmental processes that are sustainable economically, socially and ecologically and lead to a social system embodying the characteristics of peoples’ control, participation and co-operative ownership.

Neo-liberal agenda has made social protests and rebellions criminal offences that can be dealt with anti-terrorism laws, as the current regime attempts to do. The new National Defense Authorization Act (NDAA) that came to effect in the US allows indefinite military detention without trial, and determines that the entire globe is a battlefield on which the war on terror is being waged.

Who are best assisting these designs in the developing countries? They are chauvinists including social chauvinists (socialists in words but chauvinists in deeds) and the opportunists of all hues. In Sri Lanka, among them are those who oppose a fair and just solution to the national question of Sri Lanka based upon the recognition of peoples’ right to determine their own political destiny that would allow all people to live in dignity and peace.

Domestic situation

Recent reports indicate that the island has achieved middle-income status. Similarly, certain surveys have found that the island’s social conditions, health and education have improved. However, let us not forget the fact that aggregated per capita figures statistically hide social inequality. Clearly, the gap between the affluent and the poor has worsened. The Gini coefficient shows that income disparities have grown significantly in the urban and estate sector and income has remained relatively static in the rural sector. The increase in consumption accompanying the affluence and service provision distribution is skewed in favour of the affluent in the land, in particular, geographically towards the western province.

The armed conflict that was concluded in 2009 has created additional disadvantages in the region of the North and East in terms of economic infrastructure, livelihood, health and education. Inequality in opportunities and income can be associated and correlated with one’s social class and political patronage, the geographic region one resides in, one’s mother tongue, caste, ethnicity and gender, and one’s special needs. Hence, in addition to per capita models, statistical growth assessment models that also take into account the deficiencies caused by such inequities and that incorporate mechanisms for addressing such inequalities are necessary.

Economic development and building a united nation

Lankan society is heavily polarized due mainly to political and economic factors. The state’s cultural policies towards non-Sinhala people are designed and implemented to build the majoritarian support for discrimination and exclusion of non-Sinhala people so that the attention of the working people can be diverted from the significant socio-economic issues that prevail at the time.

The government’s effort in building infrastructure will help the movement of people, but mainly it will be skewed for travel from the south due to the economic imbalance that exists. Providing opportunities for people within the framework of social justice, social inclusion and provision of equity will pave the way for a better future.

It is not possible to foster a harmonious environment in the island, without genuine efforts to address the sufferings of the people who have suffered due to loss of their loved ones, those who cannot grieve openly, those who do not know where their loved ones are, those who cannot visit their loved ones who are detained. People need to be given space and time to relate their stories and learn the truth of what happened so that it will provide genuine opportunities for reconciliation. Transitional justice provides such opportunities for people to collectively get over their psychological trauma. It should provide for people to come to terms with the past and get along with their future. Genuine reconciliation can be facilitated if the people are not burdened by the past that prevents them from going into the future. In particular, most of the non-Sinhala people affected by the long war, displaced from one location to another on so many occasions, do not enjoy their civil, cultural, economic and social rights in any meaningful way. They have become weaker and feebler.

The LLRC Report

The Report of the Lessons Learnt and Reconciliation Commission (the LLRC) provides us with a good opportunity to seriously explore the present state of play in the political, legislative, executive, judicial, economic, social and other spheres. That can provide us guidance on the path we need to traverse to build a united nation upholding respect for democratic values, human dignity and the rule of law.

Though the scope of the mandate given to the LLRC was limited in comparison to the scope the South African Truth and Reconciliation Commission, the LLRC report specifically states that lack of good governance, non-observance of the Rule of Law and lack of meaningful devolution were causes for building tension between communities. It recommends creating a separate and independent police commission and provision of provincial police with better legal tools and expertise, whilst reaching out to non-Sinhala groups. It has also emphasised the necessity to have an independent Judiciary, a transparent legal process and strict adherence to the Rule of Law for peace and stability and to work towards meaningful reconciliation. What we have today is not rule of law but rule of impunity.

According to the LLRC, the lack of governance and non-observance of the Rule of Law would re-result in the creation of tension between communities. It is the view of the Commission that making visible progress on the devolution issue is of critical importance to ensure the success of any process of lasting and sustainable reconciliation. The report has also conceded that the investigation into human rights violations is a vital component to national reconciliation. We should encourage Sri Lanka to fully implement these recommendations in order to jumpstart the process of national reconciliation.

Reconciliation – Where are we?

Lanka is governed as a police state. Despite the formal ending of the country’s state of emergency, all draconian powers that were employed during the war such as disappearances, killings, arbitrary arrests and detention without trial are still in force. Thousands of prisoners that had been detained remain in custody without being charged even after three years since the end of the war.

The LTTE subjected the people in the south to terror and it was natural for them to place their trust in the government to overcome that terror. Understandably, the majority of people expressed their gratitude to the current President and the government for ending the armed conflict. On the other hand, despite many individual killings by the LTTE, many Tamil people in the North and East considered the presence and prevalence of the LTTE militancy in their region was associated with their fate and survival as a community by preventing the abuse of power the state forces and their paramilitaries had been hurling on them.

In the same vein we need to understand that the terror unleashed against Tamils, simply just because they were Tamils, was a non-issue until the counter-terror of Tamil militants started reaching the doorsteps of the people living in the south. Many disagreed with me in mid-2009, when I took the position that the conflict did not end with the military defeat of the LTTE. My conclusion was based on the simple fact that the armed conflict was a continuation of the political conflict in a heightened form, and the end of the armed phase of the conflict will be construed and interpreted as seeking solutions to the political conflict (national question) is not significant. Now hardly anybody would disagree with me that in a political sense, the conflict remains much more heightened with international attention set upon the ways the state and its people handle the broader governance issues of democracy and reconciliation. Such issues also include extension of equitable opportunities for all people based on protection and the application of the principles of rule of law, democracy and human rights. It is evident, that such an endeavour will require changing the ways the legislative, executive and judicial arms of the state operate today in political, social and religious domains.

Achieving the current ‘no-war’ situation after more than three and half decades of armed conflict has been enormously expensive. Yet we have not been able to achieve a state of positive peace due to the recalcitrant interest, thinking and attitudes that continue to prevail. With no self-critical reflections and all the bitterness and hatred being passed on to the next generations, the process of reconciliation has become a non-starter. Thus, the process of reconciliation has become extremely difficult and complex.

Measures for reconciliation

Following the termination of the armed conflict, the government has embarked upon huge business, infrastructure and community development programmes (with all their apparent deficiencies and shortcomings). Building highways and roads, providing vocational training, assisting in many small-scale industrial and agricultural projects, teaching English, and training in IT continue, with the help of many individuals and organisations, both local and overseas, and not for profit and for profit. There also have been many allegations that local communities do not get opportunities to contribute in terms of decision making or concretely taking part in any of the developmental activities that would generate income opportunities for themselves.

If the state intends to reconcile the Lankan people, one important symbolic step would be to free all political prisoners, who have been held with no charges being made against them. Those who have been tried and convicted through adjudications of institutions, not properly constituted, because of political and personal vendettas also need to be freed. Those against whom charges can be filed may be charged in properly constituted courts following proper rule of law. From a state and a government who had to conduct a ruthless and destructive war to end the armed conflict, this is not an easily achievable task. However, I am still confident that there will be a day when the country opens up its closed doors, as has just started to happen in Burma (will all best wishes for the process to continue unabated without being influenced by opportunistic, corrupted and corroded political advisors).

As we are aware, the island have been searching for an apparently dignified political solution for the last half a century with many discussions held; many agreements and pacts signed and then annulled unilaterally; many commissions and all party conferences appointed, reported and then such reports dumped into dustbin of history; and many study tours undertaken with no lessons or experiences apparently learnt.

Search for a solution

We have searched enough. We do not need to wait for international intervention to occur in these matters. If we consider Tamils and Muslims as our own brothers and sisters, then the state has the primary responsibility and accountability for looking after them and protecting their rights as fellow human beings. In the current global climate acquiring or restricting ourselves to a superiority complex of making the other submissive is impracticable, unethical, non-cognisant of the diverse nature of today’s Lankan society and its richness, and unrepresentative of our traditions of harmony and co-existence.

As many international experiences have shown, if we take positive steps to build lasting peace, the chances and opportunities for the so-called western conspirators to interfere and meddle in the country’s internal affairs, its sovereignty and territorial integrity will become minimal. Such measures will not only unify communities of people as a nation, but also unite as a bulwark against foreign interference. More significantly, such measures will create the basis for preventing another ethnicity, language and/or religion based insurgency in the island.

Lessons of the past should guide the future socio-economic and cultural changes that are required in our attitudes and actions for us to progress towards a peaceful society based on justice and equity. The three-decade long war created hostilities and strengthened animosity against each other, which strengthened the isolationist and exclusionist policy calculus of the state, thus generating sentiments and attitudes of bitterness, suspicion, hatred, prejudice and un-compromise towards each other. The Tamil community, in particular, has been dealing with the armed forces and their paramilitaries.

Needs of the ruling elite

It is in the best interests of the ruling elites for Lankan society to remain fragmented so that no united effort on the people’s part will threaten their power, control, interests and privileges of the regime. When a crisis looms, as our own historical experiences indicate, such layers and individuals will do everything at whatever cost to safeguard their regime. Pretexts are generated; news are concocted; and misinformation campaigns are carried out, so that these could be used to present a situation as if concrete and objective threats to the country emanating from such a so-called public enemy exists. Then, the cycle of violence commences.

Need for a new public enemy

The syndrome of a ‘new public enemy’ that needs suppressing through a new insurgency seems was created soon after the termination of armed conflict in May 2009. In 2010 itself, the state, its intelligence services and the government declared that they were aware of another insurgency to be launched soon using university students. This was made in an environment of a crackdown targeting the university students across the country, aimed at suppressing opposition to its planned measures for privatisation of education.

The proposed new University Act to establish private foreign universities in the island has been in preparation since then. Currently, the state and the government have become hyperactive in making Gobbelian type allegations of another insurgency led by a breakaway group of the JVP allegedly having links with pro-LTTE groups. As practised in the eighties, repressive measures have been used against any genuine political or trade union opposition to government policies.

The President himself warned in 2010 that students would face the law prevailing in the country. He was not talking about the rule of law, but the prevailing law. Hundreds of students have been suspended or detained, mainly for protesting against government policy. The burden of the current economic crisis will be placed on the shoulders of working people with public services being gradually cut down through privatisation policies following demands of the International Monetary Fund (IMF) to reduce the budget deficit.

The state has been in readiness to swoop on any protests by incorporating emergency laws into normal laws of the land; by centralising most of the power in the hands of President; by censoring the media; and by increasing disappearances and detentions without trial. Freedom of information in the land is becoming increasingly applicable in the way ruling elites and states interpret what that freedom should be. A strong example is Wikileaks, where attempts are being made to hide information about war crimes from the very people in whose name such crimes were committed. So, the political challenge will be to build a coalition under the leadership of the working people to resist the impending state repression.

The need for social implosion

Periods of intense cycles of violence have commenced with the violent suppression of freedoms and repression of rights of the ordinary people. Cycles of violence that commenced with the suppression of dissent ended up creating valleys of death. This vicious cycle would escalate spirally due to the situation that is made to prevail. Such artificial constructions are made for imploding a society from within, and I call this social implosion by a state, as against creating social reconciliation.

Past experience

Despite its alleged democratic traditions, Sri Lanka has half a century of recorded history of using violence and terror to subjugate and suppress political opponents with the overt or covert use of a plethora of repressive legislation and state forces and through the maintenance of a culture of impunity among its security establishment. For example, the President and the government in the early eighties faced a crisis, which I would see as a parallel situation with many similarities to what the people in the island are experiencing today. In 1983, the government sponsored, pre-planned and launched the anti-Tamil pogrom, on the one hand, to ‘teach Tamils a lesson’ using violent means to favourably shift the economic power balance towards Sinhalese business interests and on the other hand, to crush the growing left movement in the country.

The repression the state launched then, developed into a massive spiral of violence leading to the insurgency in the 1988-89 period, killing about 60,000 people. Incidentally, several political and military personalities, who had been involved in serious human rights abuses such as disappearances, death and destruction on their political opponents at the time, continue to hold responsible positions under the current status quo. It is worth noting that in the 1988-89 period when university students protested against privatisation of education, several student leaders were tortured to death.

Another cycle of violence?

Many people pose the question whether Lanka is entering into another cycle where violence will reign supreme, as it experienced three times before. One can only compare previous contexts, developments and experiences with the situation that is developing now. For simplicity, I will limit myself to comparing the context, development and experiences of the valley of death that commenced in 1983 and continued until mid-2009, where disappearances, arbitrary detention without trial, torture and extra-judicial killings by death squads associated with military have been used against political opponents.

What can be done?

As we have witnessed many times before, when international pressure, particularly from India, is exerted, the President would announce that the 13th Amendment in the Constitution or a plus version of it would be implemented. However, as time passes, artificial opposition campaigns will be created or allowed to be built to give a false impression to the outside world that there is enormous resistance against the devolution of power to the periphery. The only time, such a situation did not materialise was at the presidential elections held in 1994, when a consistent and persistent campaign for devolution of power was successfully carried out. Yet, due to the nationalistic and chauvinistic pressures that were created by small groups within the governing coalition itself, the proposed devolution package was neither widely discussed locally nor even presented to the parliament. Though concerns were expressed if the proposed devolution would be meaningful and adequate to guarantee the Tamil people’s physical security, the outright rejection of the extent of proposed devolution and the LTTE’s persistence on separation destroyed the Sinhala people’s trust in resolving the conflict through power devolution to the periphery.

The entire country should have the opportunity to reflect on the human misery that the conflict had caused. All the people in the country need to learn about the root causes of the conflict, the common experiences of social trauma that they have undergone, and the ways and means to prevent recurrence of such events.

I consider the first political indicator of a government that is candidly bent on reconciling its fractured society will be a genuine national campaign intended for that purpose. Even if it is only relating to the full implementation of the 13th Amendment, or a plus or minus version of it, the south of Lanka should be convinced of the necessity to look after and protect all citizens of the island in the same way the Sinhala citizens are being looked after and protected. Significant rights could be bestowed on non-Sinhala people with the consent of the island’s southerners. Perhaps, starting with what has been already guaranteed by the Constitution, but have not yet been fully and robustly implemented could be taken up for consultation and dialogue at national level.

Such rights will obviously be subjected to a barrage of criticism from the diverse spectrum of views held by many. For example, such a national discussion may commence with the topic of the necessity to include a legal framework that makes discrimination on the basis of one’s race, caste, religion or spoken language a punishable offense in law; the termination of current practice of providing unequitable opportunities on the basis of preferential treatment; establishment of effective mechanisms to handle and resolve all issues that arise in this context in an accountable manner adhering to the principles of openness, justice and fairness; making use of all three languages holistically in public communications and correspondence; ensuring that there are adequate numbers of Tamil speakers to handle issues of Tamil and Muslim people, particularly, where they are predominant; and devolution of power so that the people in provinces could look after affairs that matters in their day to day lives.

Attitudes of the Left

If you tremble with indignation at every injustice then you are a comrade of mine. This was Che’s indomitable leftward attitude towards injustice. In keeping Che’s sentiment in our hearts and minds, we of the left needs a critical look at the things we have done and we used to do.

Sadly, many in the left have helped and are still helping bourgeois ruling elites in diverse ways to implement their neo-liberal agenda. No wonder why the left is in a crisis. I believe that even those who do not think or act this way still need to rethink their strategies. From the experiences in 1971, 1988-89 and the long-term insurgency from 1983-2009, one needs to learn that they cannot break new ground or hold on to their social bases merely basing themselves on military strength. The major lesson to be taken from these experiences is that despite multiple provocations of the state and their cohorts, military strength is not a substitute for political work among the people and independent political initiatives. 2012 will be a year of high significance for the people of Lanka in terms of greater political initiatives and closer interaction between the Left and democratic forces.

Ultimately, it was the bourgeois ruling elites such as the UNP led coalition in 1977, the SLFP led coalition in 1994, and the SLFP led coalition in 2005, who took advantage of the disunity in the left and their failed tactics, as evidenced by them later wiping out the new left in the electoral front. These are not personal mistakes, but essential ingredients and manifestations of the ultra-left adventurist line taken in confronting the provocative violent and armed repression of the state and its cohorts. Though the new left only genuinely and determinedly implemented that political line, it led to the political process of isolation and then to the eventual military and electoral debacle, thus revealing the bankruptcy of the tactics used.

Unfortunately, in 1994 and 2005 the JVP, and in 2005 the LTTE was being made use of by the bourgeois ruling elites to further their own interest. These ruling elites have used them and would use them again for electoral benefits. Is not this habit of getting used for the sake of gaining temporary and partial political benefits, acting as pawns in the hands of reactionary political forces, right opportunism of the worst kind? Yet, curiously, this sort of surrendering political independence of the left was sought to be concealed at times under ultra-left phrase mongering.

Conclusion

We do not need a telescope or a microscope to see that the national question persists and needs to be solved justly and fairly. The majoritarian state being chauvinist and the civil administration being increasingly militarised, armed violence has become an entrenched characteristic of the Lankan political landscape today. The past violence of the Sinhalese against Tamils, later on Tamils violence against Muslims, violence by the armed forces and their paramilitaries against civilians to generate pretexts for implementing their own agendas of domination.. One community’s sufferings have been pitted against another community’s sufferings by scapegoating that community as the cause of sufferings. So, re-examination of our own politics, our own actions, assertions and silences is extremely important in this context.

The question of power sharing, equal rights and equity of opportunity confronts the whole of Lanka. Inter-ethnic reconciliation and dialogue between communities should be the precursor to a long-lasting sustainable just and democratic political solution. Any one community in isolation cannot proceed towards a unilateral solution without taking into consideration the concerns of other communities.

The President and the state currently do not seem to be even in favour of fully implementing the 13th Amendment, though the current constitution already accommodates provisions for devolution of police and land powers. The Lankan state points to a national security threat posed by attempts to create political instability following the example of Arab Spring. This clear warns that the focus of the security establishment is now on scheming ways and means to repress the activities of the discontented workers and youth in the country. The working people and the youth are opposing the government’s push to implement the demands of the IMF by privatising services such as education and health, thus lowering public spending, wages and cutting down working conditions of people.

As has been done before, the communal card is currently being played again to reinforce division of the working class and the poor and prevent unity being achieved in the struggle to defend living conditions and democratic rights. To do this the security establishment under the political guidance of the ruling elite is reviving a threat posed by pro-LTTE groups both local and overseas and linking individuals and organisation with progressive leanings to such groups without any evidence to substantiate their allegations. This bogus threat is also being used to justify the increased expenditure incurred on maintaining and expanding the security establishment. Such attempts of the state can be thwarted only through the united action of the working people for abolishing social inequality and for protecting their democratic rights.

Our task today is to initiate a process to keep the momentum of the processes that have been initiated to include diverse progressive views into a coherent strategy and a minimum program of social change. We need to adopt a less dogmatic and less sectarian approach towards new social thinking and developments with more tolerance and critical assimilation. Building an extensive island-wide mass movement based on a broad political agenda that would focus on issues immediately affecting the working people such as corruption, capitalist globalisation, violation of individual and collective human and democratic rights of people and environmental issues is urgent. In order to sharpen and consolidate the political power of the working people, special emphasis should be placed on developing unity in action among all left formations in the short run and working towards unifying all socialists under the banner of a single party in the long run. If we are to be successful in this endeavour, then we in the left need to honestly and critically look at our past actions, alliances and programs.

[Editors note: Lionel Bopage was a former General Secretary of the JVP and was involved with the party since 1968 until his resignation in 1984. For more content with Bopage on Groundviews, click here.]

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Long Reads brings to Groundviews long-form journalism found in publications such as Foreign Policy, The New Yorker and the New York Times. This section, inspired by Longreads, offers more in-depth deliberation on key issues covered on Groundviews

• Responses and clarifications on Sri Lanka: Is the war really over?
• In conversation with Dr. Paikiasothy Saravanamuttu
• Peace and Reconciliation in Sri Lanka: Is there a way forward?
• Post-conflict Transition and Aid Effectiveness: Reconstruction and Reconciliation in Sri Lanka – Part 1
• 13th Amendment: Plus? Or Minus?

Photo courtesy JDS

An Analysis on recent court orders obtained by Police to restrain meetings & rallies in Sri Lanka

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Basic Liberties cannot be taken away by any State Organ

Let me begin this article with the following often quoted words, worth reading and digesting.

“The law is not the private property of lawyers, nor is justice the exclusive province of judges and juries.  In the final analysis, true justice is not a matter of courts and law books, but of a commitment in each of us to liberty and mutual respect.”    (Jimmy Carter, Dallas-Times Herald, April 26, 1978).

When court orders are frequently obtained by the police to restrain lawful protests and meetings, the public begin to wonder whether there is any legal basis for such actions, particularly when the Constitution guarantees freedom of association and freedom of speech.  From colonial days until recently Sri Lanka has not seen the police making such unusual applications to courts to prevent mass protests, processions, strikes or peaceful meetings through judicial orders.  This article is intended to examine some of the key legal provisions in this regards.

Article 14 of our Constitution recognizes the citizen’s right to freedom of speech and expression, freedom of peaceful assembly and freedom of association. However, this right can be restricted in terms of the Constitution, through a particular legal mechanism.  Firstly there must be a law passed, restraining such rights and secondly, such law must be for a specific purpose such as “in the interest of racial or religious harmony, in the national interest, morality and for the purpose of securing due recognition of the rights and freedoms of others”, as stipulated in Article 15 of the Constitution. Each of such rights is subject to corresponding restrictions. For example, freedom of speech is subject to restrictions such as contempt of court, defamation, parliamentary privileges and incitement to an offence.  Our Supreme Court, time and again, has emphasized that there cannot be a restriction of any such rights without passing a law for that purpose or without acting under an existing law. Mere administrative or executive decisions are inadequate!

Article 14(1)(b) recognizes freedom of peaceful assembly, and, in fact, this is a right that is recognized together with freedom of speech as a basic liberty guaranteed to the citizens to engage in political, social, artistic and various other non-criminal activities. Basically, these rights are exercised by all democracies to engage in participatory activities such as political dissents and challenging undemocratic actions of lawfully elected governments.   We cannot forget one basic principle in democracy i.e. that citizens in a country do not surrender all aspects of their sovereignty/supremacy at an election. True enough they elect their political leaders for a definite term but they retain  with themselves  their inherent right to engage in direct and participatory democracy.  This is not a right any organ of the state, be it the Executive, Legislature or Judiciary, can ever take away from the people!

Let us not forget that processions, public assemblies and meetings are held all over the world in public places. These activities are respected by all organs of the state so long as they are peaceful. It is however not unusual for countries to regulate these assemblies for valid reasons provided they are regulated by specific laws.  The regulation of those meetings, processions and assemblies are not purely left to the discretion of the Executive or the Judiciary.  In countries requiring prior permission for street demonstrations, there are safeguards against discriminatory exercise of these rights by law enforcement officers.  Based on international legal literature one can argue that all such countries, if they are parties to the International Covenant on Civil and Political Rights, are required to ensure access to public space, (b) protection of the rally and (c) protection from hostile audience. Not mere regulations to control political rallies organized by opposition parties and groups.  The point I am driving at is that presently there is no specific detailed  legal provisions regulating these types of meetings, demonstrations and processions in Sri Lanka and therefore, there is no justification for law enforcement officers to move for the court to introduce such restrictions in respect or identified rallies.

In fact, many governments seek to justify restricting freedom of expression and assembly, on the basis of protection of others. “Freedoms of others are seriously affected, unless freedom of assembly is regulated or restricted”, they will say. We should then remind ourselves of the great words of Justice Brandeis:

“Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears.”

A Live Case Study – Application to Prevent Black January Protest

How come then the Police have sought orders from Magistrate Courts to stop lawful meetings? These issues cannot be answered without taking practical examples. Let me deal with one.

On 24-1-2012, the Officer in Charge of Fort Police Station filed a report in the Fort Magistrate’s, stating that the OIC (Intelligence) of the police station had received information that an organization called “Platform for Freedom” has organized a rally on 25^th January, bringing in over 5000 people and planning to obstruct the road and to walk to the temple Trees! Based on this information, the police had sought orders from court under sections 95 and 98(1)(a) of the Code of Criminal Procedure read with section 106 to prevent the agitation/rally.  The Magistrate,   having considered this report and submissions made by the police, without hearing affected parties, had  issued an order directing that the agitation (protest)  be limited to the Fort Railway station premises and  preventing the crowd from  blocking the road or walking to the Temple Trees. The Magistrate had also directed that the orders issued by the Court be handed over to  three persons (Brito Fernando, Sunny [sic]  Jayasekera and Dharmasiri  Lankapeli) described in the Report  as “Conveners of the Platform for Freedom”. On 27^th January 2012, again the OIC of Fort Police Station has filed another report stating that having regard to the order made by the Court, no such crowd convened and no breach of peace was reported.  Based on this report, the case was laid by.

Apart from the legal issues, I can say without any hesitation, that the police had deliberately misled the Magistrate on reporting facts in this instance.  Let me give at least 4 reasons:

(a)   I am one of the conveners of the Platform for Freedom and this organisation never organized a rally or meeting on 25^th January 2012.  The rest of the conveners of this organization are Brito Fernando, P. Saravanamuttu, Nimalka Fernando and Sudharshana Gunawardana. Police Intelligence Units of the country cannot be ignorant of that fact and reference to the Platform for Freedom is therefore a complete distortion. What is more plausible is that police intelligence units and secret services are taking things for granted, because people and authorities do take their world too seriously and they can easily deceive anyone for ulterior motives. Worse, when intelligence services are directly under politicians.

(b)   The posters and publicity given in media for weeks would have sufficiently revealed that the media organizations have organized a protest rally on 25^th afternoon opposite the Fort Railway Station (Black January) to condemn the continuous harassments meted out against media. This fact was not brought to the notice of the Judge.

(c)   On the 25^th, the organizers of the protest had shifted the venue to Lipton Circus mainly because groups of armed thugs were deployed near the Fort Railway station to attack the protesters. They had conducted themselves in a violent manner causing breach of peace, in the presence of police. This fact was never reported to the Magistrate on 27^th January.

(d)   The application was made by the police ex-parte and orders were obtained ex-parte. The Judge had ordered the service of his order on the three names mentioned but the police had not effected such service of the order.

For the purpose of clarity, we need to at least understand what those legal provisions in the Criminal Procedure Code are. Let me briefly set out the summary of those provisions:

Section 95 deals with unlawful assemblies. Where such an assembly is in progress, the Magistrate or  a police officer  above the rank of an Inspector can command such an assembly to disperse. If the crowd does not obey, then use of force is permitted, but the military cannot be used. The military can be called in only if the crowd cannot still be controlled.   This section can, therefore, be invoked only when such an assembly is in progress and therefore, the Magistrate could not have made any order one day before the scheduled meeting.

Section 98(1) deals with a totally different legal concept, i.e. public nuisances.  When the Magistrate receives a report or evidence that there is an unlawful obstruction or nuisance to any “way (road), harbor, lake, river or channel [or other specified instances such as construction of buildings or excavations etc.]”, a conditional order may be issued by the magistrate requiring such person to “remove, suppress or alter” such obstructions. This is also intended, in my opinion, to remove an existing obstruction.  This does not deal with a moving procession or a meeting, rather a nuisance that is created by way of prolusion, obstructive construction or any similar instance.

Section 106 gives the Magistrate the power to issue “absolute orders in urgent cases of nuisance”.  This provisions is used when the “Magistrate considers that such direction is likely to prevent or tends to prevent obstruction, annoyance, or injury to any person …… or dangers to human life safety or a riot or an affray.” The judicial decisions in this regard suggest that these provisions are used in certain generic and standard activities involving public nuisance, not involving civil liberties.  For example, continuous publication of defamatory articles in newspapers might cause annoyance to a person or a group of persons but that does not attract this legal provision.

In view of these basic legal provisions, I wonder how a police officer seeks these orders under the Criminal Procedure Code. We are conscious of the fact that Magistrates are under tremendous work pressure (due to the heavy load of work) and therefore, not much time could probably be spent by a Magistrate on an ex parte application made by the police. On the other hand, the criminal justice system requires the police to act with utmost honesty with the court and therefore, the magistrates are taking the applications of the police officers seriously.   I do not blame the judges for not carefully analyzing the law in this instance because of two reasons – firstly, the police are making these unusual applications ex parte and therefore not much assistance is given to the court by any Counsel appearing for the affected parties. Secondly, not all judges in the lower courts do have much of judicial experience on Fundamental Rights, though they do deal with them move than higher courts.  Of course, there are some judges who do not allow these applications for the sake of asking.

In my view there is no sufficient judicial education or awareness on protection of constitutional rights and civil liberties. This becomes aggravated with the criminal lawyers not having exposure to the area of civil liberties. This is certainly a contributory reason for the failure to detect “seemingly harmless” applications by the police to control meetings and stop lawful assemblies etc.  Let us not forget that Article 4(d) of the Constitution requires all organs of the state, including the courts to “respect, secure and advance” fundamental rights recognized by the Constitution. Notwithstanding this, judges and lawyers alike must remind themselves that “A judge must bear in mind that when he tries a case he is himself on trial.” (Philo, Special Laws, 1st century).

Why Ignoring Police Ordinance and Police Departmental Orders? 

It is quite clear that if there is an unlawful assembly, the police could always intervene and even proceed to arrest the participants of such an assembly. Two sections of the police ordinance and two Police Departmental Orders are directly relevant for this.

Section 56 of the Police Ordinance gives the basic answer to this question. In terms of this legal provision, “Every police officer   …..  shall have the powers of a police officer in every part of Sri Lanka. It shall be his duty, among others,

(a) to use his best endeavors and ability to prevent all crimes, offences and, public nuisance;

(b) to preserve the peace;

(c ) to apprehend disorderly and suspicious characters”

Section 77 of the Police Ordinance requires the organizer of a procession to give notice of a meeting to the police. The purpose of this notice, as understood correctly and articulated in the Police Departmental Order E-5, is as follows:

“There is no requirement in law that a person or persons taking out a public procession should obtain a permit from the police to do so…… this provision is made in order to enable the Superintendent or Assistant Superintendent in charge of the area ….  to consider whether the provision is likely to occasion a breach of the peace or disturbance  of public order.”

Section 77(3) also permit a police officer above the rank of ASP, if he thinks it is expedient to  do so in the preservation  of public order, may give directions  prohibiting the taking out of any procession and imposing upon the organizers such conditions as appear to him to be necessary.   Again, as elaborated in the Police Departmental Order E-5, “the only reason which will justify  a police officer in prohibiting a procession will be the consideration that it is necessary to do so in the interest of the preservation of public order”. Nothing else! There are no provisions in the Departmental orders or the Police Ordinance that require the police officer to obtain orders from Magistrate to prohibit processions or meetings. Furthermore, in law the decision of the ASP cannot be substituted with that of a Magistrate.

Police Departmental Order A-19 is another relevant provision guiding all police officers. This Order guides the police how to disperse the crowds and use of force including use of firearms.  This also recognizes that an unlawful assembly (not lawful assemblies) which  is not actually committing or attempting to commit  any crimes laid down in “Police Firing Orders”, can only be dispersed by special orders, which can be given both by a Magistrate and a police officer in the rank of Inspector and above. However these powers cannot be used in respect of peaceful rallies.

These provisions amply demonstrate that police do not require a Magistrate’s direction or orders to perform their duties.  It must also be remembered that the police cannot intervene in a peaceful or lawful assembly under these provisions.  However, the above provisions of the Police Ordinance read with Article 4(d) of the Constitution places a duty on the police to intervene and prevent when armed thugs and hostile crowds disturbs lawful meeting, rallies and demonstrations.  Why they do not exercise their authority to protect political rallies and peaceful assemblies is an indication of how politicized the police is today.

If the police have powers to control unlawful assemblies, then why are the police seeking orders from the Magistrate? I have three possible answers to offer but there may be more.

Firstly, if the police disperse lawful meetings, police believes that there is a likelihood of a fundamental rights application being filed against the police.  In Sri Lanka, the fundamental rights can be filed only in respect of executive or administrative decisions – and not against judicial decisions. Therefore, this is a possible move by the police to take refuge under a judicial order for what they cannot do otherwise.

Secondly, there may be a brilliant police officer who has innovated “a new procedure” to obtain judicial orders to prevent all lawful rallies based solely on police reports.  However, there is no information on whether such an officer is recognized by the IGP and commended.

Thirdly, there can be corrupt or weak police officers who want to please the political masters who are afraid of dissenting voices. These applications are made to satisfy those masters.

Let us, therefore, hope that there will not be a repetition of unlawful restrain of lawful assemblies and meetings in Sri Lanka. Let us not forget the great freedom fighter’s words “We who in engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive.” (Martin Luther King, Jr.)

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• Lifting of Emergency: Exposing the Sham Exercise

Photo courtesy CNN. AP/Getty Images.

There has been in recent weeks a revival of interest in the full implementation of the Thirteenth Amendment, as part of a broader on-going debate triggered by the publication of the report of the Lessons Learnt and Reconciliation Commission (LLRC) about future constitutional reforms addressing the need for devolution and democratisation. As implicitly acknowledged by the LLRC, the salutary need for a new post-war constitution, or substantial reforms to the existing one, is a matter of pivotal importance in moving Sri Lanka from its ‘post-war present’ to a truly ‘post-conflict future.’ These fundamental reforms, however, will involve sustained negotiations among all stakeholders about details of process and substance, and are distinct from the set of issues with regard to how the implementation of the existing framework of devolution in terms of the Thirteenth Amendment might be undertaken.

Without in any way foreclosing the need for more substantial reforms, the full implementation of the Thirteenth Amendment, which all Tamil political parties from the EPDP to the TNA have demanded, can be seen as an important confidence-building measure. If undertaken with a sense of purpose and goodwill, it can demonstrate that the government is serious about addressing minority grievances, help consolidate an inclusive process towards agreeing further reforms, foster a culture of compromise and accommodation, encourage Sri Lanka’s friends abroad that there is hope for reconciliation and peace on a more durable constitutional footing, and provide at least some answers to its critics.

The critical point about all this is that the full implementation of the Thirteenth Amendment, as a starting point, is one of the few things on which both the TNA and the government can agree on without compromising either party’s core interests, and without pre-determining the possibilities of a future constitutional reform process. That is, it allows the government to maintain its position on the unitary state, while it also allows the TNA the space to negotiate for greater autonomy than what is provided under the Thirteenth Amendment. The exercise of full implementation, undertaken in tandem with government-TNA talks, or in deliberations in the proposed Parliamentary Select Committee, or in some other form, can strengthen one another and improve the chances of a successful agreement. Full implementation of the Thirteenth Amendment can also possible be the springboard on which a potentially more broadly-based, inclusive and participatory process for future constitutional negotiations (and governance in the interim) can be constructed, with the involvement of other parties represented in all eight functional Provincial Councils, together with local government authorities, central institutions such as Parliament, and civil society.

Thus it would seem that full implementation makes imminent good sense, but it is the government’s ambivalence and prevarication that has given cause for scepticism, and strengthened the voice of its critics, especially in the Tamil diaspora. For this the government has no one to blame but itself, but it is still wholly possible if it so wishes, for the government to approach this with more sense than it has so far showed.

There were several implications of the government’s statement in 2008 that it was committed to the full implementation of the Thirteenth Amendment. Firstly, it was acknowledging the well-known fact that successive governments have not done so, and the announcement was welcome to the extent that, at least two decades after their introduction, these constitutional provisions were to be implemented and given effect in their entirety. In this of course the government was not expressing a policy choice but acknowledging the most basic of its legal duties to uphold and implement the supreme law of the land.

Secondly, when this commitment was originally articulated, it was in the nature of an interim measure – so as to implement the extent of devolution already provided in the Constitution in the North and East in particular – in anticipation of constitutional reform proposals by the APRC, and in the wider context of a new, post-war constitutional settlement for power-sharing. Since then, however, less and less has been heard from the government about the commitment to full implementation. Beyond the election and constitution of the Eastern Province (a process also expected in the Northern Province in the future), and where the experience of devolved governance has been less than ideal, no tangible changes signifying the necessary political commitment to realising devolution have been forthcoming.

Instead, not only has the central government taken a dominant role in the economic and development activities within the Eastern Province, supplanting the elected Provincial Council, but senior officials including the President have in comments made to the media subsequently averred that the government is in fact not intending to concede all of the devolved powers, in particular those over police and law and order, and state land. On the other hand, there has been no official or unequivocal withdrawal of the full implementation policy either. The governing paradigm of post-war reconstruction and development appears to be premised on the notion that only the central government can effectively deliver, and there is insufficient regard to the fact that devolution and development are not mutually exclusive concepts. In the light of these issues, there is a question mark as to what the government’s policy with regard to devolution actually is.

However, for the reasons outlined at the outset, it is to be hoped that a more enlightened policy direction will be taken, and if the full implementation of the Thirteenth Amendment is to be undertaken, the issues discussed in what follows would require to be addressed with a view to realising the fullest extent of devolution within its parameters.

In addition to the matters highlighted below, a more comprehensive review of the experience of devolution, akin to that undertaken by the Asoka Gunawardane Committee in 1996 is urgently needed. It should also be remembered that almost all of the issues identified by that Committee remain relevant, and much of its recommendations have not been implemented. A prospective review body therefore must be given a wide mandate to recommend necessary changes including the statutory framework of devolution, as well more generally central legislation impacting on devolution, the body of administrative rules and practices governing the operation of public administration at central, provincial and local levels, and the financial rules and procedures. In other words, a ‘comprehensive devolution audit’ must be undertaken with regard to all existing law, policy and practice, and recommendations made for amending, repealing and replacing anything that is inconsistent with the maximum level of devolution permissible under the Constitution. Needless to say, the sustained commitment of the government to introducing these wide-ranging changes is imperative. As it was observed at the outset, changes of this nature would be wholly consistent with the mandate of the President and the UPFA in terms of the Mahinda Chintana Idiri Dekma, as they do not impinge on the unitary structure of the state.

What are the structural changes that are required?

For maximising the extent of devolution within the parameters of the Thirteenth Amendment, changes need to be made to the statutory structure set out in the Provincial Councils Act, as amended (and consequential amendments to other central legislation).

Substantively, the main issue with regard to the Provincial Councils Act is the centrality that it accords to the Governor in the day-to-day administration of the Province. The main focus of change in this regard must be to establish a more even balance between the Governor, and the Chief Minister and the Board of Ministers. It is recognised that the constitutional framework requires that certain functions are performed by the Governor, and which therefore cannot be taken away by ordinary legislation. However, there is no reason why, in relation to many other functions, a more appropriate balance cannot be struck by either removing the functions of the Governor altogether, or by making the exercise of his powers expressly subject to the advice of the Chief Minister and the Board of Ministers. Amendments to the Provincial Councils Act require the following changes.

Many of the functions of the Governor and the President in Part of II of the Provincial Councils Act dealing with meetings and conduct of business of the Provincial Council including those of a symbolic nature are unnecessary, except those that are required for purposes of legal rights and liabilities of the provincial administration through the Provincial Council. The provision requiring the President’s approval for rules of procedure of the Provincial Council regarding financial matters and for prohibiting discussion on the conduct of the Governor in matters in which he acts in his own discretion is unnecessary and may be removed. There is no justification for prohibiting discussion of the Governor in the Provincial Council. There is also no reason why the Governor should make rules allocating business among the Ministers. This may be done by the Board of Ministers in consultation with the Chairman of the Provincial Council, and subject to the approval of the Provincial Council.

The powers and functions of the Governor in regard to provincial finance under Part III of the Provincial Councils Act are some of the main impediments to devolution and to the promotion of greater financial responsibility and accountability at the provincial level. These powers and functions must be transferred to the Chief Minister, who may be regarded ex officio as the Finance Minister of the Province. However, the present rule-making powers of the Governor with regard to the Provincial Fund and the Emergency Fund need not be conferred on the Chief Minister, but require to be embodied in provincial statutes (i.e., a ‘provincial financial procedure statute’). To the extent any oversight by the Governor is necessary, this is afforded by the requirement of assent by the Governor to the annual Appropriations Statute (and other ad hoc supply statutes such as supplementary grants and votes on account).

The functions and powers of the Governor in relation to the provincial public service and Provincial Public Service Commission under Part IV of the Provincial Councils Act are indefensible from a good governance as much as a devolution point of view. The concern about politicisation that seems to be part of the rationale for vesting control of the provincial public service in the Governor is misplaced in that the Governor’s impartiality cannot be guaranteed, and serves to undermine the authority and autonomy of provincial Ministers in circumstances where the Governor chooses to interfere in provincial Ministries by using his powers over public officers. Accordingly, the Governor’s powers and exclusive discretions under Part IV of the Provincial Councils Act should be removed, and those functions should be vested in the Provincial Public Service Commission, the Chief Secretary and Board of Ministers as the case may be.

Moreover, in addition to the overhaul of rules, practices, procedures and structures in relation to public administration and public finance (the details of which should to be recommended by a suitable body appointed for that purpose), a matter of specific importance that must be highlighted here is the sub-provincial level administrative structures that currently operate as direct agents of the central government. In line with the recommendations of the Asoka Gunawardane Committee, Divisional Secretaries and Grama Niladharis must be brought under the provincial public service.

What are the possible modalities of change?

Reform of the substance of the statutory powers relating to especially finance and the provincial public service in the directions suggested here would enhance the autonomy of the elected provincial executive substantially.

There are three possible modalities of introducing these changes to the underlying statutory regime of the Thirteenth Amendment. The first is by way of piecemeal amendments to the Provincial Councils Act (and other central legislation). This would address the most serious issues requiring attention, but would not disturb the established framework too much. Secondly, the Provincial Councils Act could be repealed and replaced with a new Act, which sets out a fresh approach and also may consolidate consequential amendments to other central legislation required by a new beginning. Thirdly, the most radical option is to repeal the Provincial Councils Act, and replace it with nine different Acts, negotiated between the central government and each Provincial Council according to the needs and preferences of each Province, and setting out, within the outer limits determined by the parameters of the Thirteenth Amendment, a greater or lesser degree of devolution depending on the democratic desire of each Province.

A further innovation that is possible (indeed this applies to the first and second options as well) is that any centre-provincial autonomy agreement embodied in central legislation be made susceptible to periodic review (for e.g., every ten years). The great attraction of this approach is that it has both symbolic and substantive importance in placing the relationship between the central government and each Province at a constitutional, and as close to a notion of equal partnership, as is possible within the ultimate hierarchy necessarily dictated by the unitary state. It may be that eventually, all Provinces end up demanding exactly the same or maximum level of powers, but the symbolism of the approach remains.

Addressing the political and administrative culture of devolved governance

As has been repeatedly affirmed, one of the enduring barriers to the meaningful realisation of devolution are not so much formal structures and the text of legal or constitutional provisions, as the attitudes and dispositions of the people who implement them, especially elected political representatives and public servants. As long as there is no interest or incentive to change these attitudes, very little can be proposed by way of institutional or procedural changes that have any chance of success. Even the most acutely designed system can be denuded by apathy, hostility or incapacity, and at least part of the experience under the Thirteenth Amendment testifies to that. Dependent on leadership and commitment to change, however, the following measures are worthy of consideration.

One of the most striking features of the experience of devolution in Sri Lanka in comparison to any other system of multi-level government elsewhere, is the near total absence of co-ordination mechanisms (also known as inter-governmental relations). No devolved system can work without such supporting mechanisms, which range from political bodies for the making and co-ordination of policy, to bodies that co-ordinate public administration, to highly specialised, technical bodies that support specific aspects of governance. A future review body needs to address the specific requirements in this area. The Asoka Gunawardane Committee made several recommendations on this which continue to have relevance.

Flowing from the absence of co-ordination and consultation mechanisms between multiple levels of government, is the absence of political and administrative arrangements and agreements, which may be informal or quasi-legal in nature, that form the basis of co-operation between these levels. It is neither possible nor desirable that every detail of the functional modalities of a multi-level system should be rigidly enshrined in legal instruments, and these arrangements provide the required structure and discipline to inter-governmental relations, at the same time as remaining sufficiently flexible and amendable in response to changing exigencies of government. While this is not the place to suggest in any specific way what these future agreements should be, it is nevertheless possible to identify broad themes on which such agreements are desirable.

A general ‘concordat on executive power’ between the central government and the provincial administrations seems advantageous for a number of reasons. First among these is that such a concordat can articulate broad principles in the exercise of governmental power as between multiple levels of government. These principles reflect political, not legal undertakings. Broadly such a concordat should seek to regularise and ensure mutual respect for constitutionally assigned spheres of activity by ensuring adherence to such principles as devolution (autonomy of the provincial sphere), co-operation, legality, transparency and democracy.

Within the broad framework of an executive concordat, it is possible to envisage further protocols or agreements between the central government and the provincial level on such matters as the exercise of concurrent legislative powers (for e.g., by the central government choosing not to exercise those powers except where there is a pressing necessity), the exercise of the discretionary powers of the Governor (excluding the transfer of other statutory functions to the Board of Ministers as proposed above), inter-ministerial working arrangements, budgetary procedures and allocations, and substantive policy areas including development, sectoral/industrial matters (for e.g., tourism, fisheries, agriculture, natural resources, etc.).

Concluding remarks

The experience of Provincial Councils in the past two decades demonstrates that the full constitutional extent of devolution that is possible by an innovative and flexible approach to the implementation of the Thirteenth Amendment has not been realised. This is due to straightforward non-implementation of constitutional provisions, or because of attempts at clawing back the constitutional scheme through central legislation or administrative and political practices.

The full implementation of the Thirteenth Amendment therefore requires a thoroughgoing review of these laws, policies, and practices. The possibilities and policy options that are available in this exercise have been suggested, albeit in outline, in the preceding discussion. In the final analysis, however, no amount of institutional reform is likely to succeed without the critical element of political will and commitment to making devolution work. That has been the experience in the past, and it remains to be seen whether this will change in the future. If undertaken properly, it provides both a convenient and a principled way out of the looming deadlock that seems to threaten constitutional negotiations in post-war Sri Lanka.

Note: This discussion draws on a more extensive assessment of the Thirteenth Amendment through the experience of the Eastern Provincial Council entitled Devolution in the Eastern Province: Implementation of the Thirteenth Amendment and Public Perceptions, 2008-2010, published by the Centre for Policy Alternatives (CPA) in 2010. This publication, available in English, Sinhala and Tamil, can be downloaded here.

• Devolution of powers under the 13th Amendment in Sri Lanka: Fact or Fiction?
• THE DISSOLUTION OF THE NORTH CENTRAL AND SABARAGAMUWA PROVINCIAL COUNCILS: THE CONSTITUTIONAL ISSUES
• THE APRC PROCESS: FROM HOPE TO DESPAIR
• The 13th Amendment as a political solution
• All Party Representative Committee (APRC) Final Report: Executive Summary