Photo by AP Photo/Eranga Jayawardena, via FT.com
Five years after the end of the war, the Government has now started arguing that the war is not over. The Government doesn’t think the LTTE is finished. Even US and India seem to think that sections of the Tamil Diaspora are raising funds for a possible regroup (or this might be just their inventing of a reason to continue the ban on the LTTE). For the first few years after May 2009, the claim to have won the war was important for the Government to cash in on the political benefits of the victory. Now to make the claim that the war is not entirely over is necessary for the Government to silence and dampen voices and interventions demanding accountability and justice but also more importantly Tamil self-determination. The more immediate purpose is to use the regroup argument to keep the Tamil threat to Sri Lankan state’s territorial integrity alive; through such a discourse to keep the whole country in a ‘national security’ mood and to keep the Government afloat.
The war indeed was never over in 2009. The military defeat of the LTTE was the defeat of the armed project of the Tamil self-determination movement. But that defeat was not enough to defeat the entirety of the Tamil self-determination movement. For that to happen the territorial basis of the self-determination claim had to be weakened and the political will and strength of the Tamils as a collective, their consciousness as a ‘nation’ needed to be squashed. This is in fact the war after the war – the ‘Post-War’-War. The facets of this war include, the normalization of militarization in the Tamil majority areas of the North and East, the continuation of the Sinhala Buddhist spatial territorial socialization of the predominantly Tamil North and East parts of the country, the consolidation and stabilization of the victors peace through the rhetoric of development, and the continued criminalization of the politics of Tamil self-determination through instruments like the 6th amendment, PTA and also now through the proscription of the Tamil diaspora organisations. But these issues aren’t just ‘post-war’. These policies have been a feature of all Governments in post-colonial Ceylon/Sri Lanka. These policies led to the armed struggle and continue even after its bloody suppression. The magnitude, strategy, impact and effects may have varied over time but the policy, design and motive of the Sri Lankan state’s polices have remained the same pre-war, during the war and post-war. It is important to recall that the Tamil armed struggle essentially was conceived as a response to this. The counter-insurgency of the State sought to reinforce the same design and policies while fighting the war. The armed struggle of the Tamil people sought to act as a buffer to the impact and effects of the State’s policies that targeted the collective existence of the Tamils and sought a separate state as an institution that will provide for and protect such collective existence. This is not to say that the different bearers of the Tamil armed struggle including the LTTE were flawless. Far from it. But this should not be used to distract from an appreciation for the reasons that led to the emergence of an armed struggle and the reason for the high level of support that it enjoyed from the Tamil people. The problem with the politics of anti-LTTEism is that it fails to recognize this. Hence Radhika Coomaraswamy is out of her depth to say that it was LTTE’s propaganda alone that explains the Tamil people’s support for the armed struggle. The truth is the Tamil people chose to support the armed struggle based on a reflectively equilibrated choice in response to their lived experience under successive Governments of Sri Lanka. Post-War with the removal of the buffer the consolidation of the Sinhala Buddhist project over the entirety of the geographical space of the island continues unabated and there is nothing that is stopping it. The vast majority of the Tamils are hoping that the ‘International Community’ in the post-May 2009 context will act as the buffer (every single election that TNA has won post-May 2009 has had ‘drawing the attention of the IC’ as its central electoral theme), but the experience of the five years is that it has been a weak and ineffective buffer. In fact as all the US led interventions through the UNHRC indicate, the failure to understand or recognize the fundamental underlying issues relating that threaten the Tamils existence in Sri Lanka, significantly reduces the capacity of these interventions from having a real impact on the ground – in the North – East of the island.
Five years on, I am puzzled that many actors and commentators thought that Mahinda Rajapaksha had the opportunity to resolve the National Question in the wake of the military defeat of the LTTE. The identification of the existence of an ‘opportunity’ stems from a dichotomization of the war against the LTTE and the ethnic conflict, and treatment of each as phenomena that had to be dealt with separately. Such a reading advertently or inadvertently lends credence to the idea that there could be a military solution to the war with the LTTE and a political solution to the national question. But five years on, no political solution has been forthcoming. There is talk only about the dead and gone 13th amendment, which I have argued elsewhere, does not even provide to be a reference point to a serious and genuine discourse on a political solution.
In the midst of all the daily existential problems relating to round up operations, land grabs, disappearances, sexual violence etc., Tamils are now being advised to ‘redefine the national question’ – to contribute and be partners to the so-called ‘Southern Reformist agenda’ as the means of finding a political solution. The current version of this agenda has following logical sequencing:
- The root of the evils of contemporary Sri Lanka is the institutionalized dictatorship i.e Mahinda Rajapaksa combined with the Executive Presidency.
- A common candidate against Rajapaksha who focuses on the single issue of abolition of the executive presidency should be backed by all including the Tamils.
- The common candidate who thus wins will abolish the executive presidency, provide for democratic reforms and the ensuing environment would further provide for an enabling environment to discuss a political solution.
The argument makes many assumptions. The first among them is that the executive presidency is at the root of the problems that the country faces.
It is true that the particular type of executive presidency that the Sri Lankan constitution provides for is deeply problematic and that from a liberal constitutionalist perspective fails to measure up to notions of the rule of law and good governance. I have argued elsewhere that the post-May 2009 moment operated as a ‘constitutional moment’ that reversed the debate on the Southern Reform agenda and provided for the strengthening of the executive presidency system via the enactment of the 18th amendment. But from a Tamil perspective a Westminster style government or a Presidential form makes no difference. Discriminatory laws, policies did exist even prior to 1978. Both a parliamentary form of government and a presidential form of government can be equally majoritarian. That the President requires the votes of the minorities to be elected isn’t just true – the incumbent President is an excellent example of this. The current opposition leader lost the Presidential elections in 2005 because he failed to win votes in the Sinhala heartland. As the debate on who should be a common candidate against Rajapaksa should be reveals, anyone who is not a Sinhala Buddhist will not be good enough. Similarly with a Westminster style system there is no need for the two major parties to appeal to the Tamils as the majority community is resourceful enough to produce a Sinhala Budhdhist Government even in a proportional representation electoral system, given that the Mulsim and Up Country political parties have always shown willingness to align with either of the major parties. Needless to say neither the UNP or SLFP can hope to seriously expect winning substantial number of seats in the North-East in the near future. Hence the institutional choice of a Presidency or Westminster style government is no guarantee against a majoritarian government. Some argue that a Westminster style Government will lead to a better functioning of the Provincial Council system. The 13th amendment is so fundamentally flawed that the form of Government in the Centre is not going to be enough of a cure. It may be the case that a Parliamentary form of Government may better suit a system of power sharing (this need not be necessarily true either) but this is assuming that a Parliamentary form of Government is being proposed alongside serious proposals for power sharing. This as will be demonstrated below is simply not the case.
The second assumption is that once the executive presidency is abolished there will be space to think about a solution to the ethnic conflict. This assumption again is deeply flawed at many levels. The key question is who is going to provide the leadership and space in the Southern Sri Lankan political arena? Let me consider some of the options being thrown around.
Ven. Sobitha Thero, an early contender for the presidential common candidacy, whose Constitutional reform proposals are silent on the National Question, in an interview to Thinakkural recently(6 February 2014) said that he prefers a district-based system of devolution. This would be to put in contemporary constitutionally fashionable language, 13 double minus (13–). Quite notably the district based devolution system is what the Rajapaksa’s SLFP also proposed to the APRC in 2007. Even Kumar David, an ardent admirer of the monk’s single-issue candidacy thinks that non-reference to devolution in the proposals is a serious defect.
What about the UNP of the Ranil Wickremesinghe? In March 2012 I was part of a delegation of Tamil Civil Society representatives and lawyers who met UNP Leader Ranil Wickremesinghe during his visit to Jaffna ahead of their joint may day rally with the TNA. When I asked Mr. Wickremesinghe as to what his proposal to the Tamils with regard to a political solution was, his response was ‘13+’. When I asked him how his proposal was different to that of Rajapaksa’s his response was a weak assertion that Rajapaksa cannot be trusted with implementing what he promises and that he is a man who keeps his words. Ravi Karunanayake who was with UNP leader Wickremesinghe at that meeting advised us to give up on insisting for a merged North-East and warned us that continuing to do so would only provoke violence. Wickremesinghe further told us that the UNP is not for international investigations neither for local independent investigations but for a truth and reconciliation process without any punitive consequences. He reiterated this in a meeting with lawyers in Jaffna in March 2013, in which I was also present. When asked about the Channel 4’s ‘Killing Fields’, he was dismissive of it quite similar to Rajapaksa’s dismissal of the same. Ranil Wickremesinghe used to toy with the idea of an Executive Prime Minister. Now the UNP’s constitutional proposal speaks of a ‘Council of State’ led by an elected Head of State within a unitary constitution. So in substance Wickremesinghe in real terms offers nothing better than Rajapaksa.
If this is Wickremesinghe, one need not even expend space lengthily on what the Sajith Premadasa camp has to offer. Shiral Lakthilaka, a lawyer formerly with Berghof Foundation’s Sri Lanka chapter (where he lead projects that supported and articulated the need for a Federal Sri Lanka), now a UNP Western PC Councilor with Sajith Premadasa, recently claimed that 13A+ is unacceptable to the UNP and would tantamount to secession!
Then of course people say there remains the possibility of another Chandrika Bandaranaike Kumaratunge Presidency (May be we should be thankful to the 18th Amendment for this?) Given her ‘war for peace’ (an ideology ardently followed by her successor), her role in rocking the boat with the 2002-2004 peace process, and twice broken promise to abolish the executive presidency, I suppose there is nothing much to be said for that too. People nostalgically recall her constitutional reform proposals of 1995, 1996 and 2000 and love to blame the LTTE for the failure of these projects. They conveniently forget the role of UNP and Sinhala Civil Society (like the Sinhala Commission for example) in bringing down the constitutional reform proposals. CBK herself doesn’t talk much about these proposals (she is hardly present in the public sphere) and those elements that blocked her projects are arguably more visibly present in Sri Lankan political space today.
Let me digress slightly and focus on what the Lessons Learnt and Reconciliation Commission, which arguably provides for the official policy on reconciliation says about a political solution. I once heard a leading member of Colombo’s liberal civil society refer to it as the Bible for reconciliation in Sri Lanka. So what does the ‘Bible exactly say on a political solution? The LLRC provides that in the post-war context the ‘minorities have to re-position themselves to accepting the state’. The state on the other hand must ‘reach out to the minorities’. Advertently or inadvertently the LLRC conceded that the ‘minorities’ were the ‘others’ in the Sri Lankan state; the state identified with the Sinhala Buddhists, and these ‘others’ who are not integral to the understanding of the state, had to be ‘reached out’. The state will not do anything to re-position itself, but it is these ‘minorities’ who have to re-position themselves – re-position themselves to accept a hierarchised state driven by Sinhala Buddhist ideology. If people think that I am reading too much into one sentence I invite them to have a read through of the whole of the LLRC report with an eye to its underlying political philosophy. This is the kind of political reconciliation envisaged by the LLRC report that among many even the UNHRC Geneva resolutions celebrate as a blue print for reconciliation (though probably not on accountability. As if these could be distinguished anyway).
Let me now return to what I have been discussing earlier. I have shown that none of Rajapaksha’s possible alternatives have anything substantially different to offer, regarding a political solution. But a mere analysis of a lack of alternatives to Rajapaksa is not enough as to why regime change will not deliver a political solution. The reason why juggling between different actors in the South (which has been attempted for umpteenth number of times now) is not going to deliver change for the Tamils is because of the nature of the deep, pervasive hegemonic structure of the Sinhala Buddhist ideological project. This is what David Rampton has termed the ‘Deep Hegemonic’ nature of the Sinhala Buddhist ideology over the political landscape of the island. This project is extremely active democratically both in terms of mobilization and through elections. To both get elected and to sustain a regime one needs to abide by the fundamental rules of the Sinhala Buddhist project. Many have expressed surprise that the disappearance activist Rajapaksa came to be crowned King of Sinhala Buddhism. But it should not be surprising if one, as Sivaram put it, makes an effort to ‘understand the psyche of the Sinhala Nation’. The National Movement Against Terrorism, Bodu Bola Sena and Ravana Balaya’s may be fringe organisations but the ideology that they represent is not. As a JHU leader once remarked the success of JHU as a political force is not to be judged by its electoral success but by whether its policies have become policies of the mainstream parties. All serious political actors in the South of Sri Lanka know very well that to engage seriously with the national question and trying to resolve it will end up alienating the Sinhala Buddhist heartland in Sri Lanka.
I must now return to my critique with the identification of the problem itself. There is a wide segment of the Colombo liberal civil society, which believes that democracy needs to be restored before the National Question can be addressed. The rule of law and good governance is the real problem according to this liberal class of Colombo; the National Question can be addressed by restoring democracy (or may even wither away), hence Kishali Pinto Jayawardena’s identification that dictatorship is the ‘new national question’. I think these claims aren’t empirically sustainable (for how many times have the Tamils been asked to wait for the South to get its act together) but I want to end this piece by inviting readers to probe this claim deeper.
My contention is that the national question is a pre-democracy problem. As Prof. F. G. Whelan put it, ‘Democracy, a method for self-governance, cannot be brought to bear on the logically prior matter of the constitution of the group itself, the existence of which it presupposes’. The constitution of the group/people in the Sri Lankan state is identified with the Sinhala Buddhist political group. There is no pluri-conception of the group – the demos - in Sri Lanka. What we have is a unitary conception of the demos which is entrenched in the prevailing conception of the Sri Lankan state apparatus. The difficult truth is that there are no (majoritarian) democratic incentives to change this particular reality of the nature of the State in Sri Lanka. Hence to believe that mere institutional changes (for example like abolishing the 18th amendment and the executive presidency, bringing back the 17th amendment) can transform Sri Lanka into a pluri-national state (or provide the space for it is) is, to put it very harshly, ridiculous.
Readers may wonder whether I have argued in this piece for the executive presidency to be retained. I can even be asked whether seeing Rajapaksa go wouldn’t be of some relief to the Tamils. I do not for moment doubt that this regime has been and continues to disastrous for the Tamils. I also think that the kind of executive presidential system that Sri Lanka should not be retained. Regime change may indeed provide some breathing space for the Tamils. What I have contested herein is the idea that regime change will necessarily deliver change for the Tamils. Raising false expectations repeatedly is dishonest. We should be skeptical of those who want to change the terms of the real debate and those who think that reconciliation can be built by dodging the real questions.
Kumaravadivel Guruparan is a Lecturer in Law at the University of Jaffna currently on study leave reading for his PhD at University College London.
 Radhika Coomaraswamy, ‘Head in my hands’ (May 2009) http://groundviews.org/2014/05/14/head-in-my-hands/
 For a most recent example of this, see Gopalakrishna Gandhi, ‘Within Touching Distance’ (May 2014) http://www.thehindu.com/opinion/op-ed/within-touching-distance/article6009340.ece?homepage=true wherein he asserts, “The end of the war, unacceptably bloodied as it was, opened an opportunity for a new beginning, a great leap forward toward a millennial reconciliation”.
 ‘The Irrelevancy of the 13th Amendment to Finding a Solution to the National Question’ 3 (2013) Junior Bar Law Review 30-42. Available at https://www.academia.edu/5725138/The_Irrelevancy_of_the_13_th_Amendment_in_Finding_a_Solution_to_the_National_Question_A_Critical_Note_on_Sri_Lankas_Post-_-War_Constitutional_Discourse
 International Crisis Group ‘Sri Lanka: Tamil Politics and the Quest for a Tamil Solution’ (November 2012), available at http://www.crisisgroup.org/~/media/Files/asia/south-asia/sri-lanka/239-sri-lanka-tamil-politics-and-the-quest-for-a-political-solution.pdf , p. 30
‘18 May 2009 as a Constitutional Moment: Development and Devolution in the Post War Constitutional Discourse in Sri Lanka’, 2010 Junior Bar Law Review 41-51
 N. Jayasooriyan, Interview with Ven Sobitha Thero, http://thinakkural.lk/article.php?article/ybcvya9zpi8383db5bdc8ad417010eoulb6ab6087d9cdfd8a8662ddfhkrjg
 See Rohan Edrisinha, ‘The Sri Lanka Freedom Party’s Breathtaking Proposals on Constitutional Reform’, (May 2007) http://groundviews.org/2007/05/05/the-sri-lanka-freedom-party’s-breathtaking-proposals-on-constitutional-reform/
 Kumar David, Sobitha Hamuduruvo, ‘A Voice of Sanity’, (April 2013) https://www.colombotelegraph.com/index.php/sobitha-hamuduruvo-a-voice-of-sanity/
 See further http://www.unp.lk/index.php/proposedconstitution/english/998
 Island, ‘Sajith Faction opposes ‘13Plus A’ referred to by Ranil’ (April 2012) http://island.lk/index.php?page_cat=article-details&page=article-details&code_title=49859
 LLRC Report, para 9.178. Substantively the LLRC suggests Local Government reforms and a Senate. LLRC Report, Para 9.231 and para 9.232. These are similar to the proposals of the current regime for a political solution.
 I don’t think they have anything substantially different to offer on accountability or even demilitarization. Given how militarization is key to the fiscal well being of Sri Lanka, I doubt any party can touch on the question of demobilization anytime in the near future. For an interesting perspective on this topic see, Rajesh Venugopal, ‘Market Reform at a Time of Civil War: Military fiscalism in Sri Lanka’, 46 (49) Economic and Political Weekly, pp. 67-75. (December 2011)
 Rampton argues that Sinhala Buddhist nationalism must be understood as ‘a socio-political representation of Sri Lanka, in which the territory, state and nation of the island compose a bounded unity revolving around a majoritarian axis of Sinhala Buddhist religion, language, culture and people’. David Rampton “‘Deeper hegemony’: the politics of Sinhala nationalist authenticity and the failures of power-sharing in Sri Lanka”, 49 (2) Commonwealth & Comparative Politics, pp. 245-273 at p. 255 and 256
 Sivaram, ‘On the psyche of the Sinhala Nation’ (October 2004) http://www.tamilnation.co/forum/sivaram/041010.htm
 Kishali Pinto Jayawardena, ‘Dismantling Dictatorship is Sri Lanka’s National Question’, http://www.sundaytimes.lk/130908/columns/dismantling-dictatorship-is-sri-lankas-national-question-61323.html (08 September 2013)
 F. G. Whelan, ‘Prologue: Democratic Theory and the Boundary Problem’, in J. R. Pennock and J. W. Chapman, eds., Liberal Democracy, (New York: 1983)
This article is part of a larger collection of articles and content commemorating five years after the end of war in Sri Lanka. An introduction to this special edition by the Editor of Groundviews can be read here. This, and all other articles in the special edition, is published under a Creative Commons license that allows for republication with attribution.