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
• Radical Reforms in Sri Lanka: Realities we are afraid of?

“Our duty is to fight until the last minute for our country, for our planet and for humanity.”

- Fidel Castro, Feb 4, 2012, launching his memoir, ‘Guerrilla of Time’

As world class singers of Sri Lankan Tamil parentage go, MIA isn’t half as good as a new voice, Bhi Bhiman, an American singer of blues–tinged folk music with a voice as clear and mournful as the whistle of a lonesome train coming ’round the bend. MIA’s flair for the theatrical far outstrips her singing talent. Giving the finger at the Super Bowl this month seems however to be politically symptomatic, because Mr. MA Sumanthiran, a sophisticated lawyer-politician, has just done that to the 13th amendment and prospects of a moderate yet substantive degree of power sharing. In an interview given to Namini Wijedasa, ‘MAS’ (as the newspaper bills him) says:

“…The 13th is not a proper scheme. We have rejected it…The 13th Amendment was passed in 1987. If it was sufficient, we would not have had all this bloodletting…We have engaged with Global Tamil Forum… You have to ask the Tamil people whether they want to stay in the country or be separate. Everywhere it’s like that…A distinct people in international law have certain rights called self-determination. The right to self determination international law now says must be exercised internally in the first instance. But if that is consistently denied, then according to the Canadian Supreme Court judgment on Quebec, they might even become entitled to a unilateral secession. So, if Sri Lanka should remain as one country, and we think it should remain as one country, then to preserve it as one country you must grant that right to self-determination and have it exercised in an arrangement within one country. That must be given, that must be recognized. It’s not at the wish of the majority that it’s given. That is as a matter of right in international law…” (‘Sunday Lakbimanews’ & DBSJeyaraj.com, Feb 5th 2012)

If I didn’t know that this was Mr. Sumanthiran of the TNA speaking last week, I swear I would have identified it as Anton Balasingham speaking at Prabhakaran’s press conference in the Wanni in 2002 or during the rounds of negotiations in Oslo and Sattahip, during the wretched CFA years of appeasement. I am not exaggerating for effect, and any Internet search would confirm that this was indeed Mr. Balasingham’s argument. So we are currently in a strange place, a time-warp, in which the TNA’s most sophisticated spokesperson is echoing the argumentation of the LTTE’s most sophisticated spokesperson. What makes the TNA or anyone else think that the Sri Lankan state and citizenry, which resisted and rejected this nonsense and went on to fight and decisively win a war, will treat it with anything other than a combination of acute suspicion and scant disregard?

Mr. Sumanthiran must enlighten us as to how a judgment of the Canadian Supreme Court becomes ‘international law’. He must then tell us how ‘soft’ international law – even if one were to concede for the sake of argument  that this postulate has entered the realm of ‘ soft international law — takes precedence over national Constitutions and state sovereignty. He should also be so kind as to tell us how Canada – or Scotland, for that matter– becomes ‘everywhere’. Can he tell us where precisely it is — outside of a militarily defeated, failed, fractured state (Mengistu’s Ethiopia, ex-Yugoslavia, Southern Sudan) — that ethnic groups preponderating in identifiable geographic areas are entitled to referenda as to whether they shall or shall not remain within existing state boundaries, and where it is recognized that if ‘internal self determination’ is not exercised, ‘external self determination’ i.e. secession is recognized as an option?

What would the planet look like if every ethnic group which numbered a few percentage of the total population of a state were able to exit that state at will, sundering the country and wrenching away part of its territory? This would not only mean the outright violation of a principle of democracy by privileging the wishes of a majority within a minority over the overwhelming majority of the citizenry as a whole, but also bloody disintegration, civil war, and the diminution of the size and strength of independent states thereby making them vulnerable to predatory neo-imperialist overlords.

The principle of sovereignty of the overall state and the right of self determination of the nation as a whole, the citizenry as a totality, i.e. national and popular sovereignty, cannot be subordinated to the right of self determination of an ethnic minority, national minority or minority nationality.

Mr. Sumanthiran does so much travelling that he is clearly unaware of which continent of the planet Sri Lanka is located. No state in Asia, including quasi-federal, democratic, secular India and liberal democratic Philippines, regards the judgment of the Canadian Supreme Court as having the slightest bearing on its domestic affairs or even gives it a second thought as constituting some norm in international law. One wonders if the Hon Member of Parliament has heard of Kashmir or Mindanao.

The TNA MP has flipped the bird in the direction of the 13th amendment, which was the best that India was able to obtain for the Tamil people at a time when the Tamil insurgency had not been crushed by the Sri Lankan state. Mr. Sumanthiran does not explain by which logic he expects it to be qualitatively superseded in the aftermath of a stunning military victory by the State. When the provincial devolution enshrined by the 13th amendment is being called into question as excessive, Mr. Sumanthiran’s rejection of it – as distinct from urging its upgrading and/or speedy implementation—is hardly helpful.

Mr. Sumanthiran’s argumentative assertion that “if it [the 13th amendment] was sufficient, we would not have had all this bloodletting…” is demonstrably nonsensical. If it was the insufficiency of the 13th amendment was responsible for continued bloodletting, how did that bloodletting stop in May 2009 without an improvement upon the 13th amendment in place or even the 13th amendment being implemented? It was not the insufficiency of the 13th amendment that led to the continuation of the bloodletting in 1987, it was the bloodthirstiness of the LTTE, which rejected that reform and spurned the space it opened up.

The TNA has yet to express regret or proffer an explanation over its rejection at the time, of those very proposals it is now bringing back to the table, namely the Mangala Moonesinghe formula, the CBK proposals of 1995, 1997 and 2000, and the APRC (which it boycotted). If its behavior was attributable to the LTTE’s threats it should come clean and say so now. Then again, the TNA has yet to criticize the LTTE for murdering Rajiv Gandhi– and its own leaders such as Appapillai Amirthalingam and Neelan Tiruchelvam. The failure to do so can no longer be attributed to understandable physical fear but to moral and ethical failure.

There seems to be an inability to grasp what it means to give the finger to all reform proposals, wage a war for three decades including against a peacekeeping force, and lose that war utterly. When you wager all and lose that kind of bloody wager, there is a political price to be paid for a considerable period. Your capacity to make demands is impaired. You cannot simply dust off proposals you rejected when you thought the going was good, brandish them and expect to be taken seriously.

Least logical and reasonable is the call for a referendum among only the Tamil people as to whether or not they wish to live within Sri Lanka. Contrary to Mr. Sumanthiran’s assertion, ‘internal self determination’ is not ascertained by a referendum which raises the issue of whether or not a people wish to live within a given state. If that question is on the agenda there is nothing ‘internal’ about such self-determination. What if the answer at the referendum is ‘no, we do not wish to be part of the existing state’? What, pray, is ‘internal’ about that?

Let’s think this issue through to its conclusion. Why should any administration take the risk of sharing power at a sensitive periphery of a state, a mere two and half years after a 30 year war, with a party that rejects the constitutional basis of that power sharing, i.e. the 13th amendment, and stands for a referendum on self-determination? Is it unreasonable to assume that such a party would use the territorially based council as a platform to call immediately for more powers and move on to hold or agitate for the holding of a referendum on whether to remain within or exit the state and its boundaries? Is this the TNA’s game-plan, or rather, is it the game-plan of the TNA-GTF? Isn’t this strangely similar to the playbook of Prof Steven Ratner (of the infamous Darusman panel), whose scholarly specialization is the study of the break-up of existing states along lines of pre-existing internal administrative boundaries? Is this not an alternative pathway to achieving that which the Tigers attempted through terrorism?  Does the project of exit remain the same, except that it is now going to be in a two step sequence?

Every progressive or liberal minded party, political personality and commentator in the South welcomed the LLRC report and urged its expeditious implementation, while the TNA rejected it at quite considerable length.  The gap between the reform-minded moderate centrists and progressives in the South, on the one hand, and the demands of the TNA on the other, do not seem to faze the latter, any more than this same chasm was of concern to its precursor, the Federal party, in previous decades.

Mr. Sumanthiran must now ask himself which Sri Lankan political party of any note, in or outside of government, be it the SLFP, UNP (‘Ranilist Royalists’ or Reformists), JVP or the radical breakaway Movement for Peoples Struggle, would consent to devolution that went qualitatively beyond the 13th amendment to the next level, countenance ‘self determination’ ascertained by a plebiscite purely of the Tamil people, and accept dismemberment of the country by ballot where bomb and bullet have failed. Where is the proposal that can act as a bridge? Is the TNA not interested in a bridge to the Southern majority? Is it uninterested in Southern partnership within the mainstream and unwilling to do what it takes to secure such partnerships? Where will you find takers outside of the Tamil polity, Mr. Sumanthiran, and if you do not have takers among the Sinhala majority, where do you expect to find them? Certainly not in the region or on our continent—so where might they be? Surely this is the wrong era and continent to await a Balfour Declaration?  Mr. Sumanthiran must not make the standard error of ‘cosmopolitan’ Tamil nationalists, of taking the Sinhalese for fools.

Sherlock Holmes used to say that once the impossible has been ruled out, whatever remains, however improbable, must be the answer. If elements within the TNA are making it strategically imprudent to risk the transfer a provincial council and its powers to them, then the answer must surely lie in hoping for an evolutionary re-composition of Tamil politics, through which may emerge responsible, pragmatic partners in power-sharing at the periphery. The speedy implementation of the LLRC Report’s recommendations may create the conditions for such evolution.

• Dr. Dayan Jayatilleka on history of power-sharing in Sri Lanka and the 13th Amendment
• Final text of TNA MP M.A. Sumanthiran’s speech in Parliament opposing the 18th Amendment
• “Sound is no substitute for argument”: Exclusive video of TNA MP M.A. Sumanthiran’s speech in parliament against 18th Amendment
• Hansard on 18th Amendment debate, 8 September 2010
• Exclusive video interview with Somawansa Amarasinghe, the Leader of JVP, in English

From 19 – 27 May 2010, Groundviews ran a special edition on the end of war in Sri Lanka. Over this week alone, the site received over forty-thousand readers and exclusively featured over eighty-thousand words of original content, one video premiere, over a dozen photos, generating over one hundred and fifty-thousand words of commentary.

By popular request, The End of War in Sri Lanka: Reflections and Challenges, a compilation of content that appeared online in PDF form, was first released in May 2010. In mid-2010, it was published in print form. Today, we are relaunching the book as a free iBook on Apple iTunes. It is available as a direct download in 32 countries and regions, and readable on both the iPad 1 and 2 using iBooks. Ironically, Apple’s Sri Lankan iTunes store does not list the book, but you can easily download it to your Mac or PC using this link (138Mb iBook). Once downloaded, importing it to iTunes and synchronising it with your iPad is a cinch, and takes just a few seconds.

In his review of the book, Prof. Sasanka Perera, Professor of Anthropology and Head, Department of Sociology, University of Colombo, noted:

Therefore the pieces contained traverse a wide terrain that includes the rational, clinical, accommodating, hopeful, hope-less, post war scenarios of the future, politics of diasporas and so on… To me, that variation is the reality of our post war existence. Our experience is not linear; our perceptions not black and white across the board; our take on the past and the future not a monolithic reality. What is unfortunate is that the reality of this variation has not emerged in the popular and the dominant discourse on war, conflict and peace in the country.

Another review by Channa Wickremesekera, a military historian and novelist based in Melbourne Australia noted,

The most cursory glance at some of the websites that showcases opinions from those whose first language is truly Sinhalese will show that it is still the Wimal Weerawansa’s rather than Kalana Senaratne’s who make opinions of Sri Lankans, even in cyberspace. They are still dancing the victory dance, expecting the Tamil in the room to join in singing Sinhala bailas or to leave the room altogether… Groundviews, I am sure, has no pretensions to having the power to shift heaven and earth which is what, it appears at times, is required to change the direction the country is heading in. Yet, despite that seeming impotence, the collection of articles also presents a pleasing prospect. It shows that there are still at least a few of us who recognise that the end of the war has not ended the conflict as long as we do not deal with the Tamil in the room, fairly and justly. It may make a few other decent people stop and think, even feel. That would be a modest victory but a victory nevertheless.

The new iBooks edition of the book takes over 40 contributions, including high definition video and high resolution photography, and beautifully presents them on the iPad. Content automatically resizes for orientation, presenting text in a clear, crisp format. Photos by Aufidius, Deshan Tennekoon, Sharni Jayawardene and others can be viewed as thumbnails, and pop out in high resolution. Alongside the article by its producers who were the first to visit the Vanni after the end of the war, the trailer of the award winning documentary The Truth That Wasn’t There plays in high definition. iBooks on the iPad also offers the ability to annotate the text and easily email these notes (which Apple calls study cards). When connected to the Internet, each article has a link to access the online version, with all the comments generated still archived.

It is quite simply a new way to engage with content, and Groundviews is pleased to offer, for free, a book that is of enduring value to scholars, historians, political scientists and the average reader. Using poetry, prose, photography and video, The End of War in Sri Lanka: Reflections and Challenges for the iPad demonstrates the potential not just of the device and Apple’s iBook Author to bring content alive, but also the power of new media to present inconvenient truths in a compelling manner.

• Groundviews now formatted for iPad
• Sri Lanka’s and South Asia’s first citizen journalism iPhone app
• Long Form journalism: An invitation to contribute
• Launch of Groundviews 2.0: New features, enhanced readability, comprehensive search
• Send us content for publication

Photo credit Ada Derana

This is the question of the day. This is raised nationally and internationally and answers contrast for different reasons. In this article, I endeavor to briefly answer this question from a governance perspective, keeping in mind the present socio-political realities  in Sri Lanka.

The President appointed the Commission of Inquiry on Lessons Learnt and Reconciliations (LLRC) on 15^th May 2010 with a broad mandate to inquire into and report on specific matters, in terms of the Commissions of Inquiry Act. The title of the Commission and the mandate in general suggests that the objective of the appointment of the LLRC is to find ways for reconciliation among all communities, after a bloody ethnic conflict.  It is also possible to argue that the LLRC was appointed to advise the Head of the State on how to avoid a national tragedy in the future. The Warrant has, among others the following term of reference:

“[inquire and report on] Institutional, administrative and legislative measures which  need to be taken in order to prevent any recurrence  of such concerns  in the future, and to promote further national unity and reconciliation among all communities, and  to make any such other recommendation  which reference to any of the matters that have been inquired into under the terms of this Warrant.”

In that context, the LLRC had a mandate to examine the governance structures and its functioning to ascertain why Sri Lanka was in a “mess” in relation to ethnic harmony. The LLRC submitted its report on 15^th November 2011 to the President and unlike many other Presidential Commission reports, this report is in the public domain.

Governance Related Recommendations

The Report deals with a variety of issues including the Ceasefire Agreement, Overview of Security Operations, Land Issues, Resettlement, and Reconciliation. Judging from its recommendations, we can conclude that the LLRC has also addressed its mind to the relevance of governance for overall reconciliation efforts.  Perhaps there may be disagreements on other findings and recommendation, but, I believe, there is implicit consensus on the findings and recommendations on governance aspects.  Being a governance and human rights activist, I was delighted to read these specific findings/recommendations. The civil society has been urging the Government of Sri Lanka (GOSL) for many years, to respect the existing constitutional guarantees and establish Rule of Law; and raised almost identical  issues.  The government continues to pronounce that Sri Lanka has good laws, which are respected. The GOSL never accepted that there was any paucity or deficiency in rule of law or human rights protections. Centuries ago, Aristotle taught us “Good laws, if they are not obeyed, do not constitute good government”.

For the purpose of this article let me reproduce few governance related recommendations of the LLRC, selected and clustered by me for easy reference:

1. Media freedom, attacks on journalists etc.

(a)   The LLRC  was deeply disturbed by persistent reports concerning attacks on journalists and media institutions and killing of journalists  and the fact that these incidents remains to be conclusively investigated and perpetrators brought  to justice…. Any failure to investigate and prosecute offenders would undermine the process of reconciliation and the Rule of Law.  (paragraph 9.114)

(b)   It is essential that media freedom be enhanced in keeping with democratic principles and relevant obligations. Steps should be taken to prevent harassment and attacks on journalists and media institutions and deterrent punishment should be imposed on those who were responsible for attacks. Priority should also be given to the “investigation, prosecution and disposal of such cases to build up public confidence in the criminal justice system”. (paragraph 9.115)

(c)   Government should ensure that the freedom of movement of media personnel in the North and East, as it would help in the exchange of information contributing to the process of reconciliation.

(d)   Legislation should be enacted to ensure the right to information (paragraph 9.115)

2. Freedom of Association

People, community leaders and religious leaders should be free to organize peaceful events and meetings without restrictions. (paragraph 9.118)

3. Law Enforcement, Police and Impunity

(a)   The Commission notes the failure on the part of the law enforcement officers to investigate offences and bring offenders to book, where the offences are committed by persons with political connections. The  Commission emphasizes that all allegations should be investigated and wrongdoers  prosecuted and punished  irrespective of their political links, so as to inspire confidence among the people in the administration of justice (paragraph 9.203 & 212)

(b)   The Police Department is a civilian institution which is entrusted with the maintenance of Law and Order. Therefore, it is desirable that the Police Department be de-linked from the institutions dealing with the armed forces which are responsible for the security of the State.  (paragraph 9.214)

(c)    An independent permanent Police Commission is a pre-requisite to guarantee the effective function of the Police and to generate public confidence. (paragraph 9.215)

(d)   Activities of illegal armed groups are of serious concern to the Commission.  It appeared that the dominating presence and activities of such groups have created fear among the general public, contributing to an environment of impunity. Some of their illegal activities affected the basic rights of people such as the right to life. …. Action should be taken to disarm and put an end to illegal activities of these groups (paragraph 9.72-74)

The above recommendations are self-explanatory and need no elaboration. It speaks volumes of the present governance status. The LLRC was able to find the nexus between Rule of Law and Reconciliation. It has found that the collapse of Rule of Law and restrictions on civil liberties is   detrimental to reconciliation efforts.

Priority  to Tighten the Political Grip;

Probably one can argue that the whole issue of accountability (in the final stage of the war) has been ignored by the LLRC. Nevertheless, the local and international community is awaiting the response of the President, not mere GOSL, on the key findings and recommendations of LLRC. In my view, whether the government has the political will to fully implement the LLRC recommendations depends mostly, if not mainly, on whether the President and his government are prepared to respect Rule of Law.  Are they genuinely prepared?

This question cannot be answered in a vacuum without understanding the basic norms of how the country is run today.  Some of the most significant features of the present GOSL under the leadership of President Rajapaksha is as follows:

1. The concentration of power within his close circle (family and few others)
2. Tightening  the  political grip through control of free expression, media and free assembly, while  taking all possible steps to monopolize  information.
3. Politicization and weakening of public institutions including the law enforcement agencies
4. Militarization of civil life and civilian institutions.
5. The manipulation of elections, through unprecedented abuse of state resources and emasculation of opposition.

Aspects (a) to (d) above have been dealt with by the LLRC but not the (e) above. Probably there were no sufficient representations made to the LLRC on that aspect. It seems clear that the LLRC thinks these features of the regime are obstacles to engage in reconciliation among the communities. In my view, these features pose a threat to the continuity of democracy in the country, not just reconciliation.

Whether the regime is serious in implementing these vital governance related recommendations must be judged from the past conduct of the Rajapaksa regime.  The regime has failed to improve governance structures and, in fact, it has shown complete indifference to governance. If we have a quick look at its governance record, almost all the public institutions including regulatory institutions and law enforcement agencies were politicized.  The constitutional guarantees available for protection against politicization were removed with the 18^th Amendment to the Constitution.  None of the assassinations of journalists and attacks on media institutions were seriously investigated.  All the cronies of the government and their families are above the law. It has never taken steps to eliminate impunity. In my view, these are well planned strategies of the regime – for a clear purpose of tightening the political hold.  If the governance related recommendations are implemented, then the Rajapaksa regime will lose its political grip and a fair political equilibrium will emerge. In my view, that is not a rick the regime will take.

Probing into bona fides of GOSL

If the police are independent, being placed under an independent Police Commission as suggested by the LLRC, and de-linked from the military, and then we are bound to see a different police. Investigations will be conducted by professional policemen and evidence will be elicited, against any suspect, irrespective of the nature of the crime. They will not be subject to the dictation of the political masters. In such an event, there is a likelihood of successfully solving political or high profile crimes. Such independent investigations can expose the involvement of main players of the regime, who otherwise, comfortably sweep such investigations under the carpet and manipulated investigations.  History has seen that when the law enforcement agencies become independent, corrupt leaders, including heads of the police department go to jail and new countries and new cultures emerge. That is exactly what happened in Hong Kong in late 1970s. Is the GOSL ready to accept it?

Take the case of killings of journalists, which have not been truthfully investigated by this government.  There are at least two people who know those responsible for the deaths; the one who gave orders and the other who carried out the orders. If the police is given a free hand to investigate and prosecute the offenders, there is a likelihood of even judicial findings against the higher officials and politicians within the government. An investigation can expose those who were responsible for those crimes. World political experience show that such exposures have even brought down governments! Is the GOSL ready to accept it?

Freedom of expression, mostly political dissent, is something not new to President Rajapaksa because he was one who frequently used those rights at the highest level, while being in the opposition. Now, President Rajapaksha (and the regime as a whole) does not welcome any powerful dissenting grouping that can challenge his political future.  However, the Government is at a natural advantage, because the people in the south honestly admire it for defeating the LTTE.  The war victory (and popularity) is often used as the most powerful tool to suppress any dissenting voices. This reminds us of the famous quotation of Polybius: “Those who know how to win are much more numerous than those who know how to make proper use of their victories.”   If free expression and lawful assemblies are permitted on sensitive political matters without impediment, alternative voices will certainly expose the government’s sham political devices and much more. Authoritarian tendencies will then be challenged openly.  Is the GOSL ready?

The GOSL  has mastered the control of media, through lawful and unlawful means.  Apart from extra judicial tactics used by the GOSL with impunity, the entire state mechanism is now used for the protection and survival of the Regime. Besides, consider how the government reacts to anything that can “embarrass the government”.  With that mind set, I do not see how there can be a political will to ensure full scale free expression and media freedom.

There may be other sensitive international and legal issues why the GOSL has some reservations on implementing the LLRC recommendations.  On political expediency, GOSL will definitely answer affirmatively  to the question,  whether  Sri Lanka has an independent and credible mechanism to investigate allegations of human rights violations  and,  in particular,  the  incidents  during the last stage of the war.  In my view, the GOSL cannot implement the governance related recommendations, simply because it believes that it is a political suicide to respect Rule of Law and protect human rights. Should the public be quiet then?  As Martin Luther King Jr. said “Freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed”. Unless there is sufficient and intensive demand by the people of this country, on the streets,  in Sri Lanka, the GOSL will not even consider implementing these recommendations. Then, the LLRC would be a show piece for international consumption, without any relevance to Sri Lanka.

• Archive of Lessons Learnt and Reconciliation Commission (LLRC) submissions and media reports
• LLRC Recommendations: Can the Rajapaksa Regime Digest?
• Recommendations for ICT and Research Supported Enhancement of the Effectiveness of the LLRC
• A slumbering LLRC: The image of reconciliation in Sri Lanka?
• LLRC: Submission by Manik de Silva, President of the Editors Guild

For the sixth time over, President Rajapaksa snubbed the Indian Big brother, on devolution and 13^th Amendment with a “Plus”. He wasn’t an extra smart lawyer in his Attorney’s life. But he still finds logical space between what he says and what he wouldn’t say, to leave the Indian government on their wrong foot. When Indian External Affairs Minister Krishna says, President Rajapaksa in official conversation with him, promised to offer 13 “Plus” as a solution, President Rajapaksa says, he was only discussing the issue. He has “not” promised. The implied message is, the Indian Minister has got him wrong. Not his fault, hence. Or is it ?

Its no fault of the Indians also, if the Sri Lankan President can not present his own case clear and straight, for the sixth time, in almost three years. Yet its the fault of the Indian authorities, if they can not elicit even on the sixth meeting, what they want from the Head of the SL government or what he wants to give or offer. Why the lines are so blurred, is due to what each wants to avoid offering or avoid asking. President Rajapaksa keeps using his key phrase “home grown solution” for both “13 Plus and Minus” to avoid the issue of devolution. The Delhi leaders pamper “13 Plus” without clearly saying, what they would want as the minimum devolution package, in seeing an end to the Sri Lankan political conflict they have been dragged into, for reasons both geopolitical and South Indian.

So is the dilemma the Tamil National Alliance (TNA) is faced with. They remain the only Northern grounded, democratic political party with a responsibility in finding a truly democratic, sustainable answer to the ethnic conflict that has robbed thousands of innocent lives over many decades and through many generations. They also remain a political party that has to represent a people who have been displaced many times over, have no decent social life yet in their own areas and is controlled by a military that eliminated their only bargaining power, there was. In short, the TNA has no organised social force behind them to agitate and demand, except the Diaspora that can not impact on or influence the Colombo government, direct.

There still remains to the advantage of Rajapaksa, the emptiness in political Opposition, both North and South. Tamil politics is divided. Its awfully divided here as well as in the Diaspora. Its divided to the extent that one extreme would not want to leave the sectarian and wasteful politics of the LTTE and the other to make deals with the most corrupt of all Sinhala regimes since independence. There is no alternative, a pragmatic alternative that would back the TNA in pushing this regime to find a decent and a viable democratic answer to the legitimate political aspirations of the Tamil people, within a “Single” Country, on a single Constitution.

Its the international pressure that Rajapaksa has to mind himself about, over the ethnic issue. His advantage also is that, the international community, those who command authority over the UN and its agencies and Western forums, do not take him to be a Milosevic, or Sri Lanka, a Sudan. The US has been funding this regime all through the war and they continue to fund it, despite accusations on war crimes and crimes against humanity. So has the EU, though GSP “Plus” was deliberated upon for over two years, before it was suspended. Not for the Tamil Diaspora to claim success, but Trade Unions in the EU to demand workplace decency and “rights”. GSP “Plus” campaign was a trade union campaign in the EU and it remains so, in the US to date. Despite demands for accountability, the major international players continue to sustain this Rajapaksa regime, politically and financially.

This needs a turn around in taking stock of who pushed whom for what and achieved what. This shows that Rajapaksa is still capitalising on the absence of social protest and pressure mobilised in our own society. In the absence of  political leadership that can not be substituted by the elite NGO sector, especially in the Sinhala society, there is a serious absence of people driven demands asking for socio political answers. Its a Sinhala society that Rajapaksa keeps saying is not easy to bring to terms with power devolution, simply because no political leadership has worked in creating an alternate social purpose, a discourse, in leading social thinking. An unfortunate lack of intellectual political leadership, to be clear and plain.

Within this scenario, India is a reluctant traveller in search of an answer, as proxy for the SL Tamil polity. Proxies don’t play politics with the same desire, aspiration and on the same agenda, as the affected people who are compelled to find an answer for their own purpose of living. Rajapaksa therefore can afford to keep India waiting, projecting Sinhala opposition and his government’s need to keep “all communities satisfied”, another that wouldn’t happen, unless done . Thus his exit always with the promise of a “home grown answer satisfying all communities”.

What the TNA keep missing out on, is this “exit slogan” of Rajapaksa in a situation where the international community can not also be expected to bring results and can not be pushed for results. Yet there can not be a political problem that has no answer. There are no political answers possible, without a social demand. Often the answer needs a strong social demand, in the face of reluctant “rulers”. This is reason why the All Party Representative Committee (APRC) Report doesn’t see the light of day. But that is also the most recent effort in finding a reasonably justifiable answer to the protracted political conflict.

The APRC is one that the President brought together in search of his desired “home grown solution” to  the “national question” way back in July 2006. The APRC was supported by an “Experts Committee”, also appointed by the President. The whole process took in 128 sittings for the APRC to finalise its proposal as a durable solution, as noted in this “column” a fortnight ago. What is more important with the APRC is that, after much deliberation it presented in August, 2007, a basis for a new Constitution that had 21 Chapters, upon which a new Constitution could be drafted. Mind you, this political consensus was achieved, despite the war was being fought with a very narrow, Sinhala Buddhist social mindset.

Based on its draft proposal, in June 2010, and that was over 01 year after the war was concluded, the APRC came out with a political consensus through deliberations between the extreme Sinhala, the moderate Sinhala, the “Left of Centre” and Right wing politics, in offering a format for a new Constitution with a reformed State structure that accommodates devolved power. Again, their Final Report handed over to the President, goes beyond the 13^th  Amendment, though it does not discuss the issues of devolution, in restricting itself to the 13^th Amendment. They also propose a fairly well argued Second Chamber, one that is definitely better than what the President now hints as the “Plus” in his “13 Plus” idea. His idea of a “Senate”.

Here is political consensus that represents all the communities, including President Rajapaksa’s Sinhala Buddhist sentiments that now only needs the signature of the UNP and the TNA. The UNP that played safe and cautious by avoiding the APRC will not be able to go against such broad political consensus. What with the JHU, the MEP and the SLFP also consenting, with the EPDP, the SLMC and the CWC endorsing it.

The APRC Final Report thus stands as the best and the only consensual political draft that can oppose and negate the Rajapaksa ploy in wanting a “Parliamentary Select Committee” (PSC) to discuss the same issues, these political parties debated and discussed for 04 full years. Why should not the APRC Final Report be presented in parliament, instead ? It is as important as the LLRC, being a presidential committee. This is where the TNA is not forceful in its politics against the Rajapaksa regime. There is no purpose in the TNA also resorting to technical and legal arguments in opposing the PSC, which of course is a waste of time and energy. Yet the importance is in countering the Rajapaksa move with a political move that offers and option, by demanding that President Rajapaksa present the Final Report of his own APRC, instead. The TNA should lobby support here among other political parties and trade unions, in Delhi, among the international community and in the Diaspora demanding that Rajapaksa presents the APRC Final Report in parliament, for final consensus instead of a time wasting PSC.

The APRC Final Report carries almost all what the Rajapaksa says, he wants included in a durable solution. A home grown solution, all round acceptance and also his “Senate” as a second chamber. Why the same Rajapaksa who appointed the APRC is now troubled over that can be politically understood. But why is the TNA hesitating over that ?

They need not react to Rajapaksa and they need to get out of their dependency on Delhi and international players. Instead have those external players dependent on them as the only unarmed, independent, democratic Tamil political party on the ground. They’ve got to be seen and politically felt in the North and in the East, and speaking to the Sinhala South. To date they have allowed for a singular Northern lobby, taking the East for granted, allowing the Rajapaksas to capitalise the East. The TNA too have to have both feet on the ground here and play politics in Sri Lanka, first. That is what awaits an opening for a solution, in providing the Tamil people the dignity of life, as equals in a decent society.

• APRC: The Year of the Rat has begun
• What Can We Expect from the APRC?
• Strange proposals and broken promises: Constitutional reform in Sri Lanka
• On the government’s political solution and ‘Southern Suaveness’
• Rohan Edrisinha on the APRC Proposals and the 13th Amendment to the Constitution

Dr. Panagamuwa’s workshop was tucked away down a corridor of the Mannar Hospital in the north west of Sri Lanka. When I arrived, the doctor, dressed in his distinctive green theatre overalls, was rushing around making sure his patients were attended to. One of the patients was Mary, a young Tamil woman whose leg had been amputated following a landmine explosion. I watched Dr. Panagamuwa check over the adjustments he had made to her new artificial limb. He spoke to her in Tamil and when he got stuck with a word or phrase, his young assistant would step in to help communicate. “I didn’t think he was a doctor,” Mary told me afterwards. “He’s not like a normal doctor.” She was in a hurry to catch the last bus home, much easier now with her new leg.

Together with both Tamil and Sinhalese doctors from England, Dr. Panagamuwa started the Meththa Foundation, a charity would focus on using his highly specialised skills. Meththa started small, raising funds through house parties, cricket matches and dinner dances. In July 2009, Dr Panagamuwa visited Mannar and having seen the number of amputees lining the corridors of the hospital he decided to set up his workshop. “War means injuries,” he told me and said that as long as there was a need he would continue to work in Mannar.

Dr. Panagamuwa started off as a surgeon in Sri Lanka, but after the JVP insurrection of 1989 he decided to settle in England with his wife and two children. “When I left Sri Lanka, apart from the new discipline, one of the first things I noticed there was the wastage of perfectly good components.” Because of regulations in England prohibiting their reuse, expensive components had been discarded. “These rules benefitted Sri Lanka,” he told me and managed to adapt them for patients’ needs here.

Dr. Panagamuwa’s workshop was divided into two compartments. In the front portion he attended to the patients and at the back, his team of young technicians worked at noisy machines, drilling holes into new artificial limbs for amputees. One thing that struck me as I watched Dr. Panagamuwa working was that unless patients voluntarily told him how they had lost their limbs, he didn’t probe into the causes. “What does it matter how the patient got injured from a clinical point of view?” he said. “We try to get them to a point where their disability is no longer the central part of their life. We want that to be behind them.” If patients did want to talk about what had happened to them he listened and tried to find out how best he could help get them walking again. “I want to treat them the same way we treat people in England. With the same ethos. Listening to people, being by their side. I tell them, Try this and see. If you don’t like it, we will give you another choice“.

Dr. Panagamuwa understood how his decision to set up a base in Mannar could be perceived by some members of the diaspora. The question why a Sinhalese doctor is working in Mannar? is one he knew was being asked by some not only from the Tamil diaspora, but also the Sinhalese community. Having spent a few days with Dr. Panagamuwa in Mannar and traveling with his team to Pooneryn, the answer was plain: because there was a need. “Some of the younger people are calling me uncle now,” he told me, “and that is the highest tribute that they can pay me”.

Editors note: For an overview of the Longing and Belonging series and trailer, please click Longing and belonging series: Diaspora shorts. Also see The science of planning in Jaffna and From London to Jaffna for the first time.

• Longing and belonging series: Diaspora shorts
• Longing and Belonging series: The science of planning in Jaffna
• Chikenguniya Spreads In Jaffna
• A recent trip to Vavuniya: For the future looks dark and gloomy
• Longing and Belonging series: From London to Jaffna for the first time

The throng of devotees and tourists visiting the Nallur festival had receded and life slowly returned to normal in Jaffna. I stayed behind to see if I could persuade others visiting from abroad to be a part of my Longing and Belonging series. I was especially interested in those that were engaging in a sustained manner, in contrast to the charming young family that I had met at the height of the festival. This however proved to be a challenge. I met many who were engaging with projects in the north, but who were uncomfortable with being open about their views, preferring instead to keep a low profile.

One man who was willing to be involved was Dr Narendran, an associate professor who had worked for many years in Saudi Arabia, and who was now back in Sri Lanka, spending most of his time here.

We talked over coffee at the famous Malayan cafe in the heart of Jaffna town about his ideas for an agriculture and animal husbandry project on the islands off the Jaffna peninsula. His plans were still in their infancy. The government had offered him large tracts of state owned land to use for his project. It occurred to me that Dr Narendran had no qualms about working closely with the government, something I knew would be unpalatable for many of the diaspora that I had met during my visits to London.

Later, we took a taxi to the arid environment of the islands, which Dr Narendran compared to the deserts of Saudi Arabia. As we talked about his plans I thought that while I didn’t agree with everything that Dr Narendran had said to me during the time we spent together, he wasn’t expecting me to either. I sensed he knew I likely held different views, but that didn’t deter him from speaking to me with respect. He just wanted me to listen. I have to be honest here – some of the things he said to me, for example, about the Tamil diaspora taking responsibility for their part in dealing with the devastation in the north made sense.

Meeting Dr Narendran and other individuals on this assignment underscored what he had told me – that the diaspora is not a homogenous entity. It is a diverse group, with myriad perspectives, motivations and experiences. Dr Narendran was positioned somewhere along that spectrum of views.

Also see From London to Jaffna for the first time, Returning lives, rebuilding limbs, and Diaspora shorts

• Longing and belonging series: Diaspora shorts
• Longing and Belonging series: From London to Jaffna for the first time
• Longing and Belonging series: Returning lives, rebuilding limbs
• In the midst of the Adi Vel festival
• The campaign to save Rizana Nafeek: Ways to help

Sunday: A day of perfect rest. My cousin and nephew visit. She had brought string hoppers and fish curry, cooked in perfect Sri Lankan style. No, it was perfect Jaffna style. No, no, it was perfect Karainagar style. I could remember the taste from over 40 years ago when she would insist that I eat up the fish curry and string hoppers before running off to play hide and seek behind coconut palms. It was the very same taste, I am certain. That is nostalgia you see, in driving up neural resonances, it is far more powerful than fine wine and loving sex.

I call my friend and ask her to book my Jaffna bus ticket.

Monday: Spent the day at the University of Colombo, School of Computing (UCSC). We discuss difficulties in automatic translation between natural languages.

Tuesday: Morning, again at UCSC. We discuss the four undergraduate projects that I support remotely – how to predict if two proteins interact, how to calculate if a small molecule might bind to a protein, on interactions of genes in the rice genome and on building a Sinhala-English translation system. It is great to work with these bright kids!

At lunchtime, my friend brings me the bus tickets. She explains the intricacies of how buses with bubble shock absorbers offset the effect of bumpy rides. “Beyond Vavuniya, roads are still very bad, no?”

Fine night bus ride to Jaffna; I was sitting close enough to eavesdrop on the conversation between the driver and his gOlaya [apprentice], from which I learn much. Half way between Puththalam and Vavuniya he calls the driver of the bus behind him “paaththu vaa machchaan yaanai oNdu nikkuthu [watch out there is an elephant]” ; a bus coming from the other direction makes a Morse code signal which warns him of a traffic police patrol ahead; a random policeman stops the bus near Mankulam and the driver says “maathayaa anthuran naedhdha, ethaa apE bus ekE aavE [Sir, don’t you recognize us, you travelled by our bus the other day?],” and we are waved through — a corrupt cop whose bribe has been pre-paid.

Omanthai still has a border. Locals (holders of national identity cards) stay in the bus, foreigners like me have to get down and obtain clearance. The soldier photocopies my passport. “What is the reason for going to Jaffna?” he asks. “I am a don, doing what dons do.”  “Contact number please?” I tell him. “That is a Colombo number, no? Give me mobile number.” Embarrassing – I do not know it. He gives me a funny look. “What kind of a don are you?” is written all over his smile. He asks me to call his phone, and gets my number from the missed call. Military intelligence is no longer an oxymoron to me.

Something else is interesting. I spoke in Sinhala, and the soldier spoke in English. Contrast this to an experience from HillTop many years ago where I had a disagreement with a member of clerical staff. After a brief argument, I complained to the clerk’s boss. In the three-way conversation that followed, the boss and I spoke to each other in English, but we both spoke to the clerk in Sinhala. The direction of power flow thus established, even though the clerk was technically right, I won.

Wednesday: Going into Jaffna University, I s­ee the name of a building: “Kurushestra.” My friend Aachcharya works here I remember. I go in and speak to a helpful young lady. “Where is Aachcharya?” “He has gone to teach.” No surprise there. We find him and go to their common room for a cup of tea and general gossip.

Something about that lady bugs me. She seemed to be everything that Tamil poets had declared how pretty women ought to look like (hair – clouds, forehead – crescent, eyebrows – concave, eyes – fish and so on). I could not bluntly ask her for her email or facebook account. That could hurt cultural sentiments of the place. But I still need to track her down later. Coming out of Kurushestra, I make a quick sketch of the lady in my diary.

Thursday: An enjoyable workshop, with several good talks and an effective poster session. The hosts have done a brilliant job – great lunch, too. I learn a lot from the Dean about the challenges they face. Readers can see some pictures from the workshop here.

Friday: The new Vice Chancellor is gracious enough to spare some time and talk to me about the University’s plans to set up engineering education at Kilinochchi. Conversation with her tempts me to think of investing in a retirement hut next to the Iranaimadu tank.

Late afternoon I go to the Rio ice cream shop near the Nallur temple, now a prominent tourist attraction, and bump into my friend, Accuratus Numeratus, greedily eating a very large ice cream. He is sweating a lot and is eating the ice cream very fast, as though he purposefully wants to cool down. “What’s up, mate?” I enquire.

He was at the Parameswara junction, taking a photograph, when a soldier had threateningly challenged him: “You, you… photo taking?” A young soldier was expressing suspicion at Numeratus over the use of a camera. Numeratus bursts out in anger: “I am a don doing my don job, returning to my country after 22 years, what is the harm in me taking a photograph? It is not written anywhere this is not allowed, is it?” He shows his Dolphin identity card, making sure his thumb partially covers his name, but ­clearly exposing his job title. That outburst, Numeratus managed to do in fluent Sinhala, with perfect intonation superposed on his phonetics. The soldier backs off, and says “sorry, sir”. Numeratus puts his hand on the young man’s shoulder and says “Oh kaman nae, malli [It’s OK, brother]”.

When the soldier walks away, Numeratus quickly gets into the nearest tuk-tuk and gets himself driven to the ice cream parlour.

“So what is the problem, eh?” I tease him. “There is peace in the country. There is nothing called minority. Everyone is equal. The soldier was curious, you told him off, you called him malli – in fact, my friend, given your age, you should have called him putha [son] — so what exactly is your problem?”

“I will be gone tomorrow,” he explains, “I had the skill to talk my way out of that situation. Just think about people having to go through with such intimidation day in, day out. No wonder these people feel like living in an open prison, don’t you see? Every visitor to Jaffna reports unfilled pot-holes on the roads, but they don’t notice that just beneath the surface, you find much unhealed wounds. Wounds kept open so that salt may be rubbed into them.”

“You are reading too much into this,” I try to calm him down.

“But it also brings memories, man,” he went on, and told me a true incident that happened nearly three decades ago. “Do you know the place Punchi Borella?” In my young days, I used to take the 103 bus from Maradana to Borella a lot — to the YMBA, where chess tournaments were held.  “Yes, I know,” I replied.

“One day, long ago, a young man, twenty years of age, was sitting in this 103 bus and a thug got in, drunk and smelling of arrack. The thug is of blood type S, and the young fellow is of type T. The thug holds the young man by his collar and shouts, `You are type T aren’t you? I am going to kill you, and teach your people a lesson.’”

“The young fellow had the presence of mind and amazing courage to shout back at the thug: `beepuhaama aes penen naedhdha?’ [can’t you see properly when you are drunk?] Do I look like a T, what an idiot you are?’ The young fellow’s outburst came out with perfect intonation, superposed on fluent Sinhala phonetics, just as Numeratus had done half an hour ago in Jaffna. The thug seems convinced and leaves the bus. `hary yung [OK, let’s go],’ shouts the conductor and the bus moves. The young man sweats profusely and trembles, thanking for his survival the Gods he never believed in.”

“And then, this is the punch line,” Numeratus continues after a brief pause, “the conductor walks up to the young man.”  “With his hand on the young fellow’s shoulder, the conductor quietly says into his ears: `bErunaa nE, hondhai? [escaped, no? good]’”

Postscript: In my return journey to Colombo one of the bubble shock absorbers broke and I had to hitch a ride in a far less comfortable bus. At Pettah, getting into a local bus, sleep deprived and with a severe back ache, my Sinhala fails me.

I ask to go to Biththaramalla (instead of Baththaramulla).

This 103 conductor and I share a hearty laugh.

[Author’s note: Part I of this diary, of a visit mainly to Peradeniya just over a year ago, can be read by clicking here]

• Jaffna People Back To Barter Business
• The Story of Learning Lessons by Counting Costs
• Like Slaves In Jaffna
• Questionnaire And Licenses In Jaffna
• For the love of books: A story from Sri Lanka

Editors note: Groundviews is very pleased to host the web premiere of Longing and belonging series: Diaspora shorts by Kannan Arunasalam. We’ve featured Kannan’s visually stunning and compelling work before in Koothu, kerosene and paper: portraits of resilience, part of the Moving Images series commissioned by Groundviews. Over the coming week we’ll progressively upload Kannan’s short videos, so check back often. Finally, if you have a good broadband connection, we highly recommend that in the trailer below, you turn on HD and view it full screen.

Please see From London to Jaffna for the first time, The science of planning in Jaffna and Returning lives, rebuilding limbs.

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August in Sri Lanka is a month of religious festivals in the north and also a chance for the diaspora to return and reconnect with their homeland. What better time I thought than to try and meet members of the diaspora returning to visit Sri Lanka.

My own journey started six years ago, and since then I’ve made Sri Lanka my home, putting down new roots in the country of my birth. It’s fascinating for me to observe others go through what I went through years ago.

I’m was now looking at ways in which the diaspora are engaging with development work in Sri Lanka, to find out what challenges they face and how their experiences might help others who are also thinking of returning.

I began my assignment for International Alert in Jaffna at the annual Nallur festival. Last August it drew thousands of devotees. This is my hometown and the sights, smells and tastes took me back to my own childhood, growing up here. Jaffna is also home to some Tamil Diaspora and I could understand why they return to experience these things that are still very much a part of their culture. It was nice to see they were back, tracing lost roots and reconnecting with family and friends.  I wanted to meet them, to understand what it was like being back.

One of these visitors was a young Tamil family from London. For the two daughters, it was their very first time in Sri Lanka, visiting what they called their mother’s “home country”.  The family had been helping a local charity from afar and were in Jaffna to visit the charity, as well as to take in the “carnival” atmosphere of the Nallur festival.

I also met Dr Narendran, an associate professor who had worked for many years in Saudi Arabia, but who was back in Sri Lanka with ambitious plans for agriculture and animal husbandry on the islands off the Jaffna peninsula. We talked over coffee at the famous Malayan Café about his plans and later he took me along to the arid environment of the islands, which he compared fondly to the deserts of Saudi Arabia.

From Jaffna I travelled to Mannar where I met Dr Panagamuwa, a Sinhala doctor from Birmingham and a specialist in rehabilitation medicine. He had set up a limb-fitting workshop at the Mannar Hospital, coming under his British based charity, the Metha Foundation. Together with his team of technicians, he attended to the needs of amputees and the disabled. The vast majority were victims of war, but there were also polio sufferers and injuries caused by everyday accidents.

The three individuals have very different stories to tell as were their connections to Sri Lanka. Meeting them underscored what Dr Naredran had told me, that the diaspora is not a homogenous entity – it is a diverse group, with myriad perspectives, motivations and experiences. There were others too, with very different views, and who were not willing to return.  Even the ones who are returning to visit seemed to have reservations. I met many who were engaging with projects here, but who were uncomfortable being open about their views, preferring instead to keep a low profile.

They ones that were prepared to be filmed, inspired me to capture their reflections on being back and engaging with the needs of the north of the country. The three short films under my Longing and Belonging series on the Sri Lankan diaspora aim to encourage constructive discussion on what is no doubt a complex and sensitive aspect of Sri Lankan politics. Tapping into the large resources of the diaspora would greatly benefit the people of Sri Lanka. Not all will be willing to come, but those that can be won over, need to feel more welcome.

• Longing and Belonging series: From London to Jaffna for the first time
• Longing and Belonging series: The science of planning in Jaffna
• Longing and Belonging series: Returning lives, rebuilding limbs
• Paper: The incredible story of Uthayan in Jaffna
• Koothu: Theatre and leprosy in Jaffna

Editors note: The author informs us that this Long Reads article is the result of many months of research, and aimed at promoting reconciliation. It is a dispassionate take on a vexed issue, and the author has in recent weeks shared it on a personal basis with selected political figures in the Government and Opposition. It is published on Groundviews with just a few edits. The author predicts that sooner than later negotiators in Government will come to terms with power sharing in land administration.

The article is especially timely given the statement to media yesterday by Hon. S.M Krishna, the Indian Minister of External Affairs, that President Mahinda Rajapaksa has promised the full implementation of the 13th Amendment plus, and that the Sri Lankan Government would deliver on its promise. The hope of the author is that his article lays the foundation for a progressive dialogue on this vital issue.

Austin Fernando is the author of My Belly is White, and a former Secretary of Defence in Sri Lanka.

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Having observed recent changes of approach regarding other differed stances of the government, (e.g. Terms of Reference of the Parliamentary Select Committee) I initially decided to share thoughts on land power sharing, welcoming a decent dialogue on land power sharing.

I am not a politician or a lawyer, but a believer and supporter of power sharing. As a development administrator I was the Secretary of the Ministry of Provincial Councils and Local Government for three continuous years from 1993-1996, under two different political administrations. I believe these qualify me to look at sharing land powers with all provinces- not only to the North and East.

The already known stance of some in the incumbent government on land power sharing differs from mine. But, governmental or political stances need not be permanent. How can one predict whether the governmental / political stances on devolution or land power sharing would not change? As a Buddhist I believe in “Sabbe Sankara Anichcha” (Everything is impermanent) and apply it even to this conceptual difference, especially in the light of the latest recommendation made by the Lessons Learnt and Reconciliation Commission Report stating that devolution should promote greater harmony and unity among the people of this country.[1] Sharing land administration powers is a part of the devolution process enshrined in the Constitution and hence a dialogue on land power sharing can be considered useful, though stances on devolution oscillates in the same personalities, depending on the environment.

For example, today, if one asks Minister Maithripala Sirisena who once declared[2] as the General Secretary of the Sri Lanka Freedom Party that “the Government would devolve all powers including police powers to the East in accordance with the 13^th Amendment to the Constitution” what his stance on sharing land and police powers with provinces is, he will respond differently, because of impermanence of political thinking.

The President being reported in Daily News online December 21^st 2011 as saying “He also noted that an outstanding demand of the TNA for police powers to the North and East is not a practicable proposition” shows some change of attitude on land power sharing, which he included in the same package of non-events earlier. If this is not misreporting, in other words it could mean that he considers land power sharing as practical. The title of this paper therefore indirectly addresses an issue related to a presidential statement and hence a decent debate and tolerance of dissent may not be a waste of effort.

Governmental stances on ‘land power sharing’

I must say the behavior and responses of the incumbent government on power sharing on land is similar to almost all former Sri Lankan governments, though there were differed but extremely rare positive stances for power sharing  taken by the like of Minister Gamini Dissanayake, immediately after the Provincial Councils Act No: 42 of 1987 was passed. For that matter he deserves honor because he was the only Minister who could be credited for such convinced brave steps for land power sharing. Therefore, only blaming the incumbent government for the disinterest, current disagreements and hiatus, as done by Tamil politicians and internationals some time, is unreasonable.

Earlier President Mahinda Rajapaksa categorically declared that he was not for sharing Land and Police Powers with Provinces. Not much explanation was given by him or others for such stance. However, it is not difficult to understand why. I think that it is indirectly explained by Appendix II of the 13^th Amendment to the Constitution (hereinafter Appendix II). I may point out in summary the negative concerns that might have influenced negative perceptions creation for land power sharing.

1. Even though State land continues to be constitutionally vested in the Republic, if the provisions in Appendix II of the 13^th Amendment are adhered in land administration, it may lead to “controls” by the provincial administrations- especially if the provincial administration is politically uncooperative with the government in power and thus should not be permitted.
2. Under 1:3 of Appendix II, alienation or disposition of State land shall be by the President, on the advice of the relevant Provincial Council (PC). One may argue that the government may seek advice, but refuse to accept when offered. Such dissent may be due to non-cooperation by PCs. However, if it happens, it will then dilute the concept of devolution of power by withdrawing from a “give and take policy.”
3. Even though the inter-provincial irrigation and land development projects (e.g. Mahaveli) will be the responsibility of the Government, the actual application of the principles and criteria under 2:3 of Appendix II for “selection of allottees and other incidental matters connected thereto” will be within the powers of the PCs. (Appendix II Clause 2:4). This may excite the ‘center’ as loss of power by devolving, as reflected by the responses of the pro government politicians now.
4. Having got the better of selection of the allottees by the Provinces, which is the space offered for political yields, what will be the gain for the center only by administration of inter-provincial irrigation and land development projects?

Since I am not a lawyer the above concerns may be considered as layman’s interpretations. But the Supreme Court has declared as follows, which may be creating serious concerns for the politicians at the center. In one judgment, it is stated:

“The position that was taken by the learned State Counsel came up in Agrarian Services (Amendment) Bill. Agrarian Services as has been enumerated by the Court, is a subject which is given in the Provincial Councils List as well as in the concurrent list in the Ninth Schedule to the Constitution. When a subject is listed in the concurrent list, it would be necessary to consider the subject matter in depth to ascertain how much authority the Provincial Councils would have over such a subject. However, this difficulty does not arise with regard to the question under review as there is no reference to the subject matter of land in the concurrent list.

“In fact in the Reserved List, reference is made to State lands and provides that, 

      “State land and Foreshore, except to the extent specified in Item 18 of List I”

Such extents, as referred to earlier are clearly set out in Appendix II of the 9^th Schedule, which specifically states that, “land shall be a Provincial Council Subject.” In considering the aforementioned contents it is abundantly clear that the matter in question is a Provincial Council subject that has been devolved to the Provincial Councils in terms of the Thirteenth Amendment.”[3]

If one goes by this ruling he/ she may reasonably and legally contest the statements made against land power sharing, and the unconstitutionality of such rejection. Another may interpret this judgment as proposing placing Land as a Concurrent List subject, so that it may create the need “to consider the subject matter in depth to ascertain how much authority the Provincial Councils would have over such a subject,” meaning allowing the government at the centre to finger on land issues.

The fear at the center at all times must be the stances that would be taken by an elected PC in the North and East, which will not abide and stand with southern political thinking, stances and implement directives from the center on land power sharing. It cannot be a pipe dream, knowing the political thinking of many Tamil politicians who are not from the two mainstream political parties. One should not forget that the ‘Tamil aspirations’ of Tigers included this demand, expressed as “Homeland Concept” and expanded to a wide area demarcated in their Eelam maps. I suspect that some Tamil politicians must be waiting for the day to constitutionally respond through an elected political entity of theirs (e.g. a PC). This is the suspicion in the minds of southern politicians at the center too, converting them to be negative for the demand. As a last resort, they may one day extend the suspicion to a status of demand for the erasure of PCs from the Constitution. The issue is how far that day is.

The Tamil politicians who are with the government show a different face. It is evident from recent statements in the media made by pro-devolutionist Minister Douglas Devananda. He has suspected “political unrest among people in the south over any attempt to devolve land and police powers.”[4]  He did not mind shedding devolution of Land and Police powers for the time being and demanded implementing the 13^th Amendment. A sigh of relief would have appeared on Minister Devananda’s face having seen the above quote in the Daily News. There is also the hard view that agrees with the President’s, held by some of his supportive political groups in the incumbent government, which might have instilled more of such fear in Minister Devananda, for him to succumb in this manner. When he is the Chief Minister of the North, as he aspires to be, and pressured by the elected body, will he be able to reject a very popular constitutionally accepted political demand to administer land in his Province? Will the Buddhist teaching of impermanence prevail on his current statement to implement the 13^th Amendment, sans land and police powers?

For the southern pro-government incumbent provincial politicians land power sharing does not seem to be a concern. From court cases related to land power sharing (e.g. Please see foot note 12 for one recent case in Appeal Courts) it is apparent the Provincial Land Commissioners already use authority over land. So much so, the first respondent in the case mentioned in foot note 12 was the “Land Commissioner (Southern Province)”. If the government at the center too is politically theirs, it is not difficult to deal with land administration arrangements to suit their convenience and satisfaction. Since it is so currently (2011), provincial politicians would not mind the status quo to operate under ‘camouflage.’ In a way, not permitting such enjoyment of constitutional rights overtly or covertly to the northern and eastern PC authorities may be interpreted by them as discriminatory.

But the Tamil politicians reaping the benefits irk the politicians at the center for political and popularity reasons, which has been aggravated after the war victory in May 2009. The central political feeling may be “Why should the government give in to a Tiger demand after wiping them out?” which appears correct. The Tamil political feeling may be “Why should not we enjoy the political right we have earned through the Constitution?” A pro-devolutionist cannot disagree with it.

Purpose of this exercise

The attempt here is to explore a via media to share power on lands, with least annoyance created to opponents of power sharing with all Provinces, while staying within the operative constitutional provisions. In other words, the purpose is to answer the titled query aiming to focus on solutions to one itching issue before the Government and the electorate, sometimes extending across the oceans.

It is neither a challenge to the thinking of the supporters of extensive and comprehensive centralization, nor a backup to the political parties vociferously demanding total sharing of land powers in the North and East Provinces. This is only an exploration of justifiable compromises, to enable withdrawing from hawkish demands for power sharing, while agreeing with the need for power sharing, as well as, to disable mooting selfish non-sharing of land administration. This effort aims through dialogue carving a sensible practical operational medium which may be acceptable to both ‘devolutionists’ and ‘centralists’.

What is attempted here is legal, as there had been confirmations received on this issue by decisions taken by the Supreme Courts[5]. As quoted earlier such decision has firmed up that land is a devolved subject. Hence, what is wrong in attempting a via media to respect such decision from the highest court?

Approach of this presentation

In finding the compromising paths for land power sharing, I consider it important to revisit the past, which is forgotten by political hierarchies, policy makers, professionals, lawyers and media who oppose devolution as a process.

I do not think it is required to visit the present State land management issues in the South because (as stated above) the PCs and the government currently belong to the same political group. It has been alleged that in the North and East governmental pressure on land administration had been made on the PC through the Governors. I believe that though there is no openly and expressly stated land power sharing with PCs, at present through operational arrangements land administration is done by the PCs, (other than in the North and East), as wished by the Chief Ministers, who are generally the Ministers in the PCs in charge of the Land subject. Hence, the non-insistence of this power by current Provinces and even publicly refusing devolved land powers by some southern provincial politicians is only camouflage.

This presentation will briefly discuss the background for power sharing, fears expressed on land power sharing, counter such fears, explain actions already carried out by successive governments towards this end and summarily propose a power sharing process considered by me as feasible within the current constitutional provisions, which can be reviewed and amended as required. However, being a layman development administrator, my focus will be on tacit application of the laws. In the process some legal implications will be discussed hoping that the required political and legal inputs would be explored, reviewed, revised and applied by appropriate legal experts and politicians.

Indo- Lanka Accord 

In 1987 the government devolved power to the PCs after the Indo – Lanka Accord. Some argue that devolution was a process gulped by Sri Lanka under Indian compulsions and that it is a project “Made in India” for all intents and purposes. I am aware of the opinion expressed –rightly or wrongly- that India has deliberately used the Appendix II in the 13^th Amendment to favor the demands of Tamils. Some political authorities and anti-Indian spokespersons oppose land power-sharing quoting these anti-Indian sentiments. But, they little realize that the former have signed the declaration or swore the Fourth Schedule in the  Constitution to uphold and defend the Constitution of Sri Lanka, which also carries sharing of land powers  with the PCs.

Expressed fears of devolving land powers and Appendix II

The current constitutional provisions on land power sharing are comprehensively expressed under Appendix II and Item 18 of List I under the 13^th Amendment to the Constitution.

The main theme of arguments enunciated against land power sharing is based on the following.

1. Such power sharing will lead to a duplication of a Federal State arrangement where total land administration will fall in to the hands of ‘federated Provinces’, thus superseding the Cabinet at the centre. With politicians least respecting the Principle of Subsidiarity[6] and holding to centralization, based on political hegemony at all institutional levels (e.g. National, Provincial, Local Authority or even at community – i.e. Cooperative or Rural Development Society), this issue has become acute.
2. The President’s constitutional authority [Article 33 (d) of the Constitution] on State land will be challenged by the Provinces.
3.  The State land needs of the Security Forces could be ‘blocked’ by minority controlled North and East PCs creating security threats and consequently threatening peace, thus favoring Tiger regrouping.[7]
4. The extent of land in the North and East is so large; such vast resource will be monopolized by the North and East PCs- thus paving way to a meager national ethnic minority to discriminately control one third or more of land of the country.[8]
5. Land administration by Provinces will reject or scuttle alleviating land hunger of the majority community, which had been practiced from first Sri Lankan Prime Minister D. S. Senanayake’s era.
6. The larger areas of land mostly eligible for virgin development are in the North and East and the land related power sharing will discriminate and jeopardize the majority social welfare in other provinces due to possible legal inaccessibility to lands in the North and East, if land administration power is devolved to PCs and snobbishly used by them.
7. Though not publicly stated, a hidden feeling exists that the Sinhalese supremacy as an ethnic group will be weakened by land power sharing due to constraints placed on the majority community.
8. In a situation where the government is formed by one political group and the PC administration from another opposing political group, whichever the PC is, there will be difficulty in cooperating on land administration. In other words, government authority could be rejected by the PC, thus converting the central state authority to be secondary to provincial, if proper controls are not in place.
9. The hold of the government on environment considerations will be jeopardized by sharing land powers because resources such as watersheds, rivers etc are dual or multi-provincial assets.

The fear in (1) above is negated by the fact that Sri Lanka is a Unitary State, and not Federal or Quasi Federal. Hence there are many legal restrictions on that alone to counter such status, unless a Federal Constitution is accepted by the country, which seems to me millions of light years away from reality, unless a political miracle happens. Of course, if miraculously a Federal Constitution is accepted, the country has to abide by its stipulations because it is the country’s preference.

Concern (2) is negated by Article 33 (d) of the Constitution and it already made known by the interpretations by the Attorney General, which will be discussed later.

Concern (3) above can be managed under Appendix II 1- 1:1 where only a consultation is required with the PCs, when State land is required for a Reserved Subject. For me ‘consultation’ does not mean ‘concurrence’ or ‘permission’. It means procedures for assessing public opinion about a plan or major development proposal. Devolution can succeed only with such dialogue and compromises made.

Arguments (4) to (8) are not necessarily centered on land issues but on political and ethnic or communal considerations, as the North and East are predominantly populated by minorities who will elect majority of their provincial “rulers” from minority communities. It will make the national majority of Sinhalese a regional minority which will not be a consideration for other provinces. This discriminatory approach is in itself anti-constitutional because a person who has declared upholding and defending the Constitution (i.e. Fourth Schedule to the Constitution) will be violating the Constitution provisions by negating Clause 3:3 of Appendix II  by debasing land policy on “political and communal” aspects.

Any PC or parliamentary or other constitutionally established authority within the Government / Opposition hierarchies, thus inclusive of the Tamil politicians,  too will be violating the Constitution in similar manner by acting with such discriminatory bias, whichever the communal  / political group that is favored by them.

The concern (9) is looked after by Clauses 3.2 and 3.3 of Appendix II and Article 27 (14) of Directive Principles in the Constitution.

Being a non-lawyer layman I do not intend dealing with intricate legal issues, but my stance (subject to correction by legal luminaries) is that the concerns in (9) and other legal issues are surmountable under existing constitutional provisions.

Countering fears on devolving land administration powers

Let me briefly counter these fears that suggest that existing constitutional provisions assist federating, provincially monopolizing, leaving space to block national land hunger solutions, discriminating the majority and degrading environment.  Nevertheless, unexpected repercussions may arise but it is a case of management to overcome them.

(1)    The preamble of scheduled List II under 13^th Amendment to the Constitution gives the National Policy making power on all subjects (thus ‘land’ included) to the government by being “Reserved” and not to the PCs. Reaffirmation of this power is in Appendix II- 3:1 through the National Land Commission” (NLC) of the government, and not by the PCs. Under Clause 3.4 of Appendix II, the PCs have to exercise powers devolved on them “having due regard to the national policy on land formulated by the NLC, which will be an arm of the State. Therefore, the threat of monopolizing and ad hoc manipulations by the PCs will not be possible. Note: The National Policy on any subject / function under the 13^th Amendment which lies in the hands of the government cannot be cajoled or crippled to suit narrow minority political gains of political parties that demand power sharing. They cannot be rhetoric and debunk the constitutionality. Those from the government ranks who oppose devolution of land powers should clearly understand the power lying in the hands of the government. Instead they have throughout exhibited jittery weak-kneed responses to devolve. However, the accepted work steps to declare a National Policy is not clear. Is there any law, constitutional arrangement, institutional arrangement or a commonly accepted process for this exercise, except for land national policy making? If available, has any government made use of any such system for national policy making?

(2)    According to Appendix II preamble “State land shall continue to vest in the Republic” and not with the PCs and subjected to Article 33 (d) of the Constitution and written law. This is further subjected to special provisions stated in Clause 1 of Appendix II. Of course, the challenge will be how to manage the special provisions to bring the conflicting groups together when there are given court rulings.

(3)    Disposition of State land will be in accordance with Article 33 (d) of the Constitution which states that the Public Seal of the Republic for grants and disposition of lands and immovable property will be a power and function of the President. It is noted the attempts through PC Statutes to thwart this power and authority has been successfully countered by the government.[9]

(4)    Land as a subject and function will be controlled by the government as per (1), (2) and (3) above, excepting in some constitutionally identified areas, as mentioned under (5) below.

(5)    Appendix II Clauses 1- 1:1 to 1:3 empowers the government to:

(a)    Utilize land for a Reserved or Concurrent subject by the government in accordance of laws governing. The government shall ‘consult’ the provinces but not be dictated by the PCs, or for that matter need not always agree with the PCs’ opinion. If the interpretation of ‘consultation’ is to seek permission it will complicate the issue and hence care should be taken in drafting working arrangements of the national policy on lands. However, ‘consultation’ will be one way to condition stiffened stances.

(b)    Make available land for provincial subjects for the administration, control and utilization in accordance with the laws and statutes governing land, for which the national policy of the NLC will be the main guideline (Clause 3:4 of Appendix II). It will be seen later that there had been some accepted ways in the past and review and imposition of the appropriate may be considered by authorities.

(c)    Permit the President to alienate and dispose any State land on the advice of the PCs, which makes the government powerful to manage lands under power sharing. Here too it must be remembered that PC advice need not be mandatorily accepted[10], but reasonable and due consideration will enhance required relationships between the centre and periphery.

Note-1: The Attorney General has interpreted this matter further by opining that Clause 1:3 of Appendix II is only confined to alienation[11] and disposition of state land which had been released to a PC for PC subjects in terms of Clause 1:2 of Appendix II for which the advice of the relevant PC will be required. This means that the right of the State to dispose State land in accordance with Article 33 (d) of the Constitution and other written law (which will include the Crown Lands Ordinance) is unfettered.[12]

Note-2: Whether the ‘advice’ is binding on alienation or disposition of State land may be a concerned matter. On perusal as a layman, it is observed that there are instances where ‘advice’ comes in to limelight in PC administration. For example Article 154B (8) (d) relates to the Governor acting “in accordance with the advice of the Chief Minister” who possesses the majority in the PC[13]. Under 154F (1) the need to act in “accordance with such advice” is stated. But under 1:3 of Appendix II such forcible use is not demanded. The President is subjected to act “in accordance with the laws governing the matter” and not on the advice of the PC. It meant working in accordance with the Land Laws already in place and even the future legal instruments that could be passed.

(d)    The constitutional provisions for inter-provincial irrigation and land development projects (e.g. Mahaveli Scheme) straightforwardly lie in the hands of the government, as per Clause 2 of Appendix II. However, compromises to be made towards the role of PCs as per Appendix II should be explored, as stiffened status will not support power sharing. The NLC and the National Policy could assist in building the required rapport. [14]

(e)    Under Clause 2:3 of Appendix II the principles and criteria regarding the size of the holdings will be determined by the government in consultation with the PCs, but not unilaterally by PCs or under the dictation of the latter.

(f)     The criteria for allottee selection will be on the degree of landlessness, family size, income levels, agricultural background etc (Clause 2:4), which had been similar during Prime Minister D. S. Senanayake days and later, until politicization of selection increased under all successive political regimes. One may argue that the application of these criteria is within PCs powers. But, PCs shall exercise such powers having due regard to the National Policy formulated by the NLC. (Appendix II- Clause 3:4). The NLC can within the constitutional provisions incorporate to the National Land Policy other appropriate criteria on selection of allottees or processes, tagged to constitutionally approved ones.

(g)    Further, ethnic ratios and expansion of the allottees to the Province from districts is assured by Clause 2:5 of Appendix II, which will look after all communities on a proportional basis.

(h)    Clause 2:6 of Appendix II assures the equity principle of land management.

(i)     The politically vulnerable maintenance of demographic ratios is assured by Clause 2:7 of Appendix II.

The focused demands of land powers and the expressions used at such instances made by Tamil politicians, media and Diaspora spokespersons have made this issue acute and suspicious, with an ethnic bias. It is unfortunate. Their interests project expressions endorsing the “Homeland Concept” of the Tigers. This concept and counter concepts have been in circulation for long. The merged North and East concept of the Tigers and Tamil politicians was one such, which was countered during President JR Jayewardene’s tenure by opening up Dollar and Kent Farms and attempts made to redraw the provincial boundaries by colonization the banks of Yan Oya. Probably the Tamil spokespersons are convinced now (end 2011) that it is currently happening.

The brewing demand for Tamil homeland was orchestrated recently by TNA Leader R Sampanthan MP and MA Sumanthiran MP where they focused on the land owned by Tamil people’.[15] Some called these lands “Tamil lands”[16] tagging ethnicity to lands. Countering this is observed right now with carving of Weli Oya Divisional Secretary’s Division by the government replicating status anticipated by the Yan Oya Project of the UNP regime quoted above. These Tamil politicians demanding land administration powers, having created suspected ulterior motives of political and communal bias also commit the same judgmental error, equivalent to those committed by some pro-government political authorities in the South who resent sharing land powers with the Provinces.

Land administration power sharing past interventions

May I start with the political beliefs behind land power sharing?

The politicians rely on conventional thinking of power sharing. So much so deliberately or inadvertently they place devolution and decentralization as an ethnic issue. This status is due to a false premise, also patronized by many Tamil and some Sinhalese politicians. Many Tamil politicians think that North and East belong to the Tamil speaking people, and none other. Many Sinhalese politicians and sometimes bureaucrats think that North and East should be left alone as the potential area for alienation of their choice and should not be lost to minority administrations. Further, they argue on historical, ethnological and archeological evidence to demand total control of land, and some going to the extent of Sinhalese- Buddhist domination of areas. How unfortunate to observe a devastated nation cracked to splinters, population and leaders think in divisive and non-integrative terms after a nearly thirty year conflict, when unity and integration should be the theme for nation building? This is the psychological paranoia created by trust deficiency, which takes various shapes, one being future security considerations, another being State aided colonization. And, there may be many others.

Let us glimpse on the past practices that had been guided by this mythological beliefs. I say so because how governments acted had been decided by politicians’ whim and fancy, and, unfortunately and not necessarily by sanity, judiciousness or constitutional reasoning.

The points quoted here are proof of how successive governments performed in power sharing exercises on land. The importance of reference to such actions is that the governments cannot be ad hoc, nor need to waste time to reinvent the wheels. And further, this proof provides the understanding that a government could be challenged on legality, processes, past, continuity, predictability that should be maintained by a government. Such challenge will not motivate reconciliation, which seems to me as a serious pressure exerted on the incumbent government, especially by the Indian South Block, though sometimes subtly handled by them with a velvet glove. Or, are we not privy to what really happens to conjecture so?

I flag some of the actions that related to the land power sharing exercise undertaken by successive governments, which cannot be erased by rhetoric, as I see from statements made by politicians, some professionals, opinion makers and journalists etc. Summarily some salient aspects are stated below.

(1)    The 13^th Amendment has proposed several institutional arrangements and legal provisions that could make land power sharing a possibility. All land related activities are expected to be done in accordance with Appendix II. This status could be used to have controls through the NLC, which can safeguard governmental interests, as it derives power from the basic law- i.e. the Constitution.

(2)    It is reminded that the then Minister of Land and Land Development (Minister Gamini Dissanayake) met the Chief Ministers, Provincial Ministers, Chief Secretaries and senior officials on August 4^th 1988 and made clear the State policy on devolution of land powers under the 13^th Amendment. His Secretary by circulars informed the extent and coverage of land powers that have to be devolved by ministries and departments and went to the extent of informing that the officers in the Provinces who were carrying out the functions of Lands and Irrigation under List I would thereafter function under the administrative fiat of the Provincial Secretary of Lands and Irrigation.[17]

(3)    The above circular was issued after wide dialogue between the government and provincial administrators and extended to even submitting a draft Statute for land power sharing, from which the Ministry expected fulfilling provincial statute making.[18]

(4)    The Ministry intended to share resources with the provinces for land management as stated in this circular.[19]

(5)    A conflict in law on delegation of power based on Clause 1:3 of Appendix II, which queried on the alienation or disposition of State land within a Province to any citizen or to any organization by the President was pointed out by the Ministry of Lands and Land Development[20] to the Presidential Secretariat.[21]

(6)    To this conflict the Attorney General responded[22] that “it would be competent for the President to delegate any power in terms of Section 105 of the Crown Lands Ordinance”.[23] But the Attorney General additionally advised that “before making the proposed delegation, it would be necessary to amend the Third Schedule in Regulation 24 made under Sections 95 and 96 read with Section 105 of the said Ordinance”. I do not think this amendment was done.

(7)    Since there was a time lag for Statute making the PCs (Consequential Provisions) Act No: 12 of 1989 was passed by the Parliament and certified by the Speaker on May 30^th 1989. Its preamble says that it is an “AN ACT TO MAKE INTERIM PROVISION FOR THE INTERPRETATION OF WRITTEN LAW ON MATTERS SET OUT IN LIST I OF THE NINTH SCHEDULE TO THE CONSTITUTION” which showed the interest and intent of the government for continuity of implementing the constitutional provisions of the 13^th Amendment (not only State land matters).

(8)    Though there is fear among the opponents of power sharing on land that PCs will have total power on alienation and disposition of any State land in a Province, based on the Attorney General’s opinion the Secretary of Lands advised that “the advice of the relevant PC will be required only for the alienation and disposition of State land which have been made available to PCs for PCs subjects (List I).”[24] Hence, the above mentioned fear may be redundant as the PCs’ authority is restrained / limited by release of lands by the government to the PCs [summarily explained below under (9)] and due to the requirement for the PCs to adhere to the National Policy that is formulated by the NLC. (See Appendix II- Clause 3:4.)

(9)    Release of State lands thus becomes very crucial for which there were arrangements made by the then (1989) Ministry of Lands.[25]  Accordingly, when an application is made to the Minister of Lands and Land Development, it will be processed by the Ministry and approved by the Minister; and, when the request is for more than 500 acres it will be submitted to the Cabinet for approval. When the approval from the two sources is received, a certificate of release will be issued by the Minister of Lands. The Land Commissioner will release land to the PC through the GAs. The fear that the provinces will grab State land as they wished is rejected or at least satisfactorily diluted when this process of release of State land is considered. The authorities involved in the operation are all centrally government managed and hence will be center friendly.  As it is, land administration can be reinforced by the NLC by delegating more powers to the GAs, as decided by the Cabinet recently (October 2011)[26], if accepted by the NLC. These past processes can be learning experiences.

(10)  Since the PCs were managing land affairs in different ways, the Ministry of Lands and Land Development clarified the operational status on transfer of land work to the PCs under several important legal instruments , i.e. the Land Development Ordinance,  as amended by Act No: 16 of 1969 and Act No: 67 of 1989, Crown Lands Ordinance No: 8 of 1947, Land Grants (Special Provisions) Act No: 43 of 1979 and State Lands (Recovery Possession) Act No: 7 amended by Act No: 58 of 1981.[27] These have looked after the needs of the government up to now (with revisions as required) and improved by the government under the Bimsaviya Programme.[28]

(11)  There is grave fear in the minds of southern politicians that the Tamil politicians will encourage encroachment of State lands as there had been similar experiences with the Gandhian Movement and others in the quest for state power by the Tigers. Hence this fear may be even justified. Even this issue is covered under Act No: 29 of 1983, Regularization of Encroachments wherein it was expected that PCs receive the concurrence of such regularization through the Land Commissioner and Ministry of Lands, again central authorities.[29] The inputs of guidelines by the NLC could be used to tighten screws as required by endorsement, if such fear is intact even now, or until clear understanding is reached.

(12)  Keeping to the constitutional requirements, the Ministry of Lands directed that all lands other than the Inter Provincial Irrigation and Land Development Projects should be administered by the PCs and kept the decision making power on the latter lands in the centralized unit of GAs at the District level, again a central authority. If this is the way how it ought to be, the NLC mechanism could be utilized as an alternative authority to the Ministry of Lands even in the future.

(13)  According to the instructions given by the Ministry of Lands, PCs could initiate the alienation of State lands for which the lands had to be released by the Government and this will be done according to the process mentioned in (9) above, which gives the handle to the government and not to Provinces. It was categorically mentioned that alienation of lands under small tanks rehabilitated under Village Irrigation Rehabilitation Project which did not come under the Inter Provincial Irrigation and Land Development should be done by the PCs[30]. If 13^th Amendment is for power sharing, and at least this power is not given to Provinces, what is farcically shared or devolved?

(14)  The Ministry was cautious with regard to possession of documents which was to be done through the GAs or Provincial Land Commissioners due to the ongoing conflict situation in the country, which may be reviewed at present after war victory.

(15)  The Appendix II made a very important provision regarding the establishment of the NLC, under Clause 3. This proposition has created many knee-jerks among southern politicians. The NLC was not appointed by any government after 1987, though required by the Constitution.  It was perhaps due to several reasons, though Appendix II was very clear that its appointment was by the government, and PCs should exercise the devolved powers having due regard to the National Policy as formulated by the NLC[31]. Reasoning for non appointment of the NLC is thought of as follows:

(a)  The prevalent understanding that national policy making should not be in the hands of a Commission but in the ‘supreme’ Cabinet, as such policy making will negate the powers and authority of the ‘central’ politicians in the Cabinet.[32] However, national policy making is completely controlled by the government under the preamble to List II under the 13^th Amendment, Article 33 (d) of the Constitution and Appendix II- Clause 3.

(b)  The fear was that the NLC membership in numbers will be more biased to the eight PCs and hence the PCs may dictate to the government on land issues- the tail wagging the dog! When the NLC Bill was presented in the Parliament on July 21 1992, this fear was erased by making provision for 19 members under Section 3 of the draft Bill. The overriding power was kept in the hands of the government by proposing a larger number having allegiance to the center and thus the NLC’s National Land Policy would have been obviously centre oriented.[33]

(c)  The monopolistic power that was wielded by the Parliamentarians on land issues since Independence cannot be retained if land powers are shared because the lands released for alienation and disposition will be managed by the PCs according to the Constitution. This is one selfish jealousy that prevents the centre to hold on to land powers. But, if needed to counter misdoings, the National Policy approved by the NLC can provide for reasonable measures such as reviews.

(d)  In addition, if the government and PCs are in different political controlling hands it may thus provide opportunities for the PCs to come in to conflicts with the opposing political groups during alienation and disposition of land. If the ongoing dialogues are an indicator it is certain that such conflicts would occur, especially between the center and North and East Provinces. Even now this happens in southern PC areas when political power rests with the same political group. And, some times after an election selected allottees are chased away from the legally alienated lands due to political reasons! However, the NLC should strictly create the selection criteria with national binding that could prevent such happening. Additionally, the Technical Secretariat in Clause 3:2 in Appendix II should introduce methods to settle conflicts of interest between and among PCs / Government.

(e)  The unpreparedness of Land Ministers to think that the NLC is the body to make the National Policy for State Lands was openly expressed by the Ministry of Lands advising Provinces and District Administration to inquire on National Policy from them,[34] while concurrently and conveniently evading appointment of the NLC, thus validating reason for such direction by the Ministry of Lands.

(16)  The Bill presented in the Parliament to establish the NLC gave the powers and functions of the Commission that included the preparation of the national policy with regard to the use of State lands and to lay down norms in regard to the use of State lands having regard to the soil, climate, rainfall, soil erosion, forest cover, environmental factors and economic viability, which are the interests of the Technical Secretariat under Section 14 of the draft Bill. But this Bill never saw the light of the day and lapsed after nearly two years on June 24^th 1994 with the dissolution of the Parliament. This showed how the then UNP government that showed extreme keenness to devolve land powers in 1989 lagged behind in five years.  It coincided with another important political scenario- i.e. change of hands of the presidential administration, as well as allocation of the subject of Land in the Cabinet.

(17)    Administrative control of Provincial Land Commissioners by governmental fiat was done in several ways. Firstly, the government took steps to appoint all Provincial Land Commissioners from among Assistant or Deputy Land Commissioners of the Land Commissioners Department[35] Secondly, the Provincial Land Commissioners were concurrently appointed as Additional Land Commissioners.[36] Thirdly, the Land Commissioner commenced Provincial Land Commissioners Meetings where land management issues were discussed and directions were given. Fourthly, with the Transfer of Powers Act the Divisional Secretaries were made Heads of Departments of the centre and land work in the Divisions was left in their hands using centralized authority. These arrangements kept the provincial land administrators under the thumb of the centre and not really under the PCs. Is it the latter been tried now (end 2011) by strengthening the hands of the District Secretaries?

(18)    Two Provinces, namely North Central and Western, passed the Land Statutes.[37] However, the government did not want these statutes to be implemented. The government received the Attorney General’s Department blessings to intervene on recommendations made by the Land Commissioner to stop implementation[38]. Some provisions in these Statutes were conflicting with or suggesting encroachment of Reserved constitutional provisions, which incidentally found to be wanting by the government on reasonable grounds. I may quote one such provision to prove the point. In the Land Statute 5 of 1994 passed by the North Central Province, Section 3 while stating that the implementation of the Statute was subject to the powers vested to the President under the Constitution, included provision to issue grants under Section 4.1- a presidential power under Article 33 (d) of the Constitution. In another case the Statute empowered the PC under 3.6 to deal with mining, disposition of minerals etc, which is a power granted to the government under the Reserved List ‘Minerals and Mines (b)’. Hence, it was not surprising to observe the ‘central’ government [39] and Attorney General opposing such provisions, and making use of such opportunity to steamroll the PC by using Executive direction. This is the way how the Government which was so accommodative in 1989 to pass the Statutes (by even sharing a draft Statute) changed its course in 1995 due to political decisions and afterwards blocked the implementation of the Statutes which were passed by the PCs.

(19)    When I was the Secretary of PCs, end 1993 a similar issue was raised and on the instructions of Lands Minister Paul Perera, circular instructions were issued by the Secretary Lands reiterating the already explained constitutional provisions.[40] I guess this was due to my refusal to permit alienation of land on a request of a UNP parliamentarian and my acting in defense of the Southern PC under (Opposition) Chief Minister Amarasiri Dodangoda. Later even Governors were cautioned by the Ministry of Home Affairs, Provincial Councils and Local Government to ensure that Land Statutes were delayed or not passed.[41] These experiences taught how governments could pressure not to share land powers.

Need for a National Land Policy as per 13^th Amendment

The National Policy on Land is specifically mentioned in Appendix II Clause 3:1 and the implementation by PCs is mentioned in Clause 3:4 of the same.

The Land Commissioner or the Secretary of Land or President’s Secretary[42] has been declaring what should be the purported Land Policy or guidelines for adherence by the center, PCs and even other government institutions. Though the NLC was the institution to do this job by constitutional empowerment and when there was no attempt even to frame a law to establish the NLC, how could it perform? How could extraneous authorities be restrained from acting in this manner in such lacuna? If one argues that this was deliberate usurpation of constitutional power and thus a violation of the Constitution, it shall hold water.

Ad hocism was observed through out. As mentioned earlier there were political and positive bureaucratic interventions just after the PCs Act was passed. Immediately after the change of presidency in 1989 this commitment lapsed and all institutional arrangements were directed towards centralizing, affecting good performance of devolution and land was one area thus affected heavily. I may list a few of these actions for reference sake to prove that there were negative attitudes against devolution exhibited by all successive governments.

1. Withdrawing Assistant GAs from PCs to the center, creating Divisional Secretariats responsible to the center and allowing them to handle land issues, appointment of Provincial Land Commissioners faithful to the center (during President R. Premadasa’s term)
2. Withdrawal of Grama Niladharis from the PCs (during President D. B. Wijetunga’s term)
3. Appointing Committees to decide on land policy issues comprising only of central government representatives and without a representative from the Ministry of Provincial Councils at the center (PM Ranil Wickremasinghe’s term)
4. Issuing of orders, guidelines and adherence notes to PCs and central agencies etc by the Presidential Secretariats (during Presidents D.B. Wijetunga’s, Chandrika Kumaratunga’s and Mahinda Rajapaksa’s terms)
5. Gazetting of Land Use Policy Planning Department by executive fiat by the Ministry of Lands[43] encroaching in to a portion of NLC powers endowed by the Constitution under item 3.2 of Annex II. (President Mahinda Rajapaksa’s term)

These show the extent of centralized encroachments and interference on the constitutionally provided devolution of powers. Similarly it affected the National Land Policy formulation mechanism authorized by the Constitution.

Proposition for consideration

The basics of State land are unknown to the general public. Similarly, they are in the dark on devolution and centralization. They will face the same amount or more of less of similar injustices, favoritisms, political interventions, corruption etc, as they had been for ages whether the land powers are shared with the PCs or not. As a former land administrator I have seen these happening under all political regimes.

The current lack of dialogue on land power sharing in all quarters other than among politicians proves the narrow understanding and disinterest the public have on this issue. It is mostly the politicians in the government and Tamil groups who are interested in the cause for land power sharing. They are the affected groups from sharing or non-sharing of powers on land. For political expediency parliamentarians and even those in the PCs who would gain more power by devolution reject and refuse land power sharing, as observed from the statements made by parliamentarian Deputy Minister Karuna Amman who had vociferously demanded power sharing earlier when he was a Tiger and PC Chief Minister of the East and PC Chief Ministers even in the South. Are they speaking their hearts out? I doubt the integrity of their intentions. How politicized the issue is proved by such behavior. Hence, the propositions are to sort out a crucial political issue on the table.

I may summarily state on a step by step basis the way out of this embroiled status, leaving space for improvements by the Executive and other political, legal and administrative hierarchies.

1. On parliamentary approval of the NLC law the government can establish the NLC according to the requirements of Clause 3:1 of Appendix II to formulate the National Land Policy and create the Technical Secretariat as per Clause 3.2 of Appendix II with persons possessing expertise to handle land issues.
2. Let the NLC initially review the current national land policies and their implementation status to identify the strengths and weaknesses. It should find the threats for devolution and opportunities for further improvements.
3. Find out from the above exercises the areas where the government should make revisions to State land use, land release, alienation and disposition processes. The National Land Policy should be an outcome of these deliberations and perhaps by serious studies undertaken by the NLC Technical Secretariat, and not on ad hoc decisions and stipulations.
4. A White Paper on National Land Policy should be prepared by the NLC which could be discussed with the PCs and at the Parliamentary Consultative Committee before it is presented to the Cabinet for approval. Large amount of information mentioned above on past interventions could be made use of as appropriate in the preparation of this White Paper. This process will fulfill the constitutional requirement of List II Preamble for policy making and erase the suspected negative inhibition that the Cabinet will be secondary to the Provinces.
5. The Attorney General will have to observe and unambiguously advise the NLC on the application of the National Land Policy from its formulation to implementation, monitoring and reviewing stages to ensure conflicts are minimized to the maximum in implementation and to support drafting a common Land Administration Statute that should balance and erase the suspicions in the minds of the government and PCs. A senior representative from Attorney General’s Department should be seconded to this Secretariat on full time basis or at least nominated to assist the NLC.
6. The NLC should carry on as an ongoing and continuing exercise by way of monitoring and evaluating the progress or digressions or deviations that occur in the implementation of the National Land Policy and propose revisions and amendments as required making it an efficient and effective work process. NLC will advise the government (i.e. Cabinet) on areas which will need future policy and implementation revisions, for the Cabinet to decide on legal and operational amendments, as required.

This issue is not as simple as one could present in a paper. It is a much more serious legal, political, socio-economic and ethical issue. However, if the government is interested in sharing power with the PCs on land administration, these may be initial steps that could be considered. These could be the foundation for change of attitudes and actions. One may note that compromises have to be reached if the ends in the 13^th Amendment are to be achieved. It cannot be achieved by demanding the pound of flesh as done mostly by devolutionists and Tamil politicians, especially in the Tamil National Alliance or by denials alone as done by some pro-centralists opinion makers and southern politicians. “Give and take” mentality has to be adored.

I believe that the government currently thinks in the same pose as seen from the stance of President Mahinda Rajapaksa who had requested Democratic People’s Front leader Mano Ganesan to convince the TNA to drop its hard line stance, be flexible and cooperate with the government to find a solution to the national issue.[44] Cannot one consider the earlier quoted Daily News statement by the President a show of flexibility and cooperation? Any way clapping with one palm is impossible!

Conclusion

If the government is determined not to share power in anything and carry on with centralization whatever the opposing political demands are, and give a backroom position to devolution and reconciliation, the propositions given here can be instantly ignored. Perhaps, erasure of the 13^th Amendment may solve the issue of devolution for good! The day it happens the validity of this paper will exist no more. The manner in which the government is acting even gives the indication that it could be on the way, if too much pressured. One should not push the President to the wall and expect him to succumb when he is in total control of the Parliament and the country. Until then the hope is that the case for land power sharing could and should be revisited under the nagging circumstances mentioned above.

It will be very embarrassing and difficult for the government to run away from giving a fair deal for sharing land powers. This demand has constitutional validity, backed by recorded judicial decisions from the most superior courts, some decided by the very same luminaries who will sit on judgment on the issue. It is pursued relentlessly by Tamil political authorities and the internationals, in an environment where a government appointed Commission recommends devolution and when the government is exploring avenues of proving its genuineness of the commitment for change to Sri Lankans –especially to Tamils- and internationals.

Since the demand is made by political negotiators like parliamentarians R. Sampanthan and M.A. Sumanthiran (at government initiated negotiations) who do not carry suicide bombs like Velupillai Prabhakaran, it will be difficult for the government to throw down the gauntlet calling them terrorists, as the government did with the Tigers. I believe that one day –sooner than later- the government and Tamil negotiators will come to terms on an agreed basis of power sharing in land administration.

It has to invariably happen irrespective of fears in the mind of Minister Douglas Devananda as quoted earlier and the negative stances taken by Ministers like Wimal Weerawansa and Champika Ranawaka on land power sharing. It has to happen even though professionals like Attorney Gomin Dayasiri or Dr. Gunadasa Amarasekara reason out for the rejection of this demand. The important million dollar question will be to what extent can the government and Tamil politicians agree on devolving land powers to the PCs and how. In that context the above proposal may be basic, but could be considered as an initial approach to answer this query.

Concurrently, it is the war victory that gives the strength to reconcile and take convinced extremely bold decisions. Such decisions can be marketed to the nation only by the victor. In the current context it is President Mahinda Rajapaksa who can take this challenging uphill task and none other. It appears that the time has come for him to volunteer for such stance even to go beyond the 13^th Amendment.[45]

I am aware that one may find loop holes in this proposition and arguments. If so, let them discuss and improve the proposition. It is required because it is a constitutional obligation and all these politicians have declared to uphold the Constitution by signing the Fourth Schedule to the Constitution.

I wrote the paper with the conviction that this is one way to rationally think of reconciling and bring justice after the Great War victory. This paper may be a miniscule contribution for reconciliation, but, it is drops of rain that form streams, water falls, reservoirs, rivers, estuaries, seas and oceans.

To conclude, I am reminded of what Mark Twain said once- i.e. ‎”A man cannot be comfortable without his own approval.” This saying applies to those who cannot approve what is in their own Constitution. As long as they do so they will be uncomfortable and will be carking, because they are violating the basic law of the country. A broader consultation and dialogue for approval may make things comfortable for everyone.

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

• All Party Representative Committee (APRC) Final Report: Executive Summary
• The 13th Amendment as a political solution
• Radical Reforms in Sri Lanka: Realities we are afraid of?
• Aftermath of the Victory: whither Sri Lanka?
• Land in the North and East of Sri Lanka: Concern and confusion over Government circular

• Going beyond the 13th Amendment: Newspaper coverage of the Sri Lankan’s President’s assurance to India
• Interview with Prof. Tissa Vitharana on the 13th Amendment, Constitutional Reform, IT and English language
• Minister of what?????
• An exclusive interview with Eastern Province Chief Minister Pillayan after the TMVP’s arms decommissioning
• Has journalist J.S. Tissanaiyagam really received a Presidential pardon?

Image taken from ‘Interrogating a public intellectual: Noted bloggers and youth activists engage Dr. Dayan Jayatilleka‘, published on Groundviews

The phrase ‘a man for all seasons’ being a compliment -which is clearly not the writer’s intent- I find Mr Michael Colin Cooke’s sense of irony rather leaden (read A Man for all political Seasons: Dr Dayan Jayatilleka). No matter. I have two options in responding. One is to enter a slugfest of quotations and ideological polemic, for which I simply do not have the time, and nor I suspect, do most readers. The other route is to address the substance, with a view to advancing clarity and political discussion.

MCC accuses me of “idealisation of the current government of Sri Lanka”. That’s plain silly, and he would find it impossible to back it up with a single quotation or example, while none of those he has furnished amount to anything remotely approaching idealisation.

I do defend the Sri Lankan state, its elected leadership and its elected government, in that order, but selectively and hardly uncritically. I have never urged anything but a policy of qualified and critical support, of ‘unity and struggle’ towards these entities.

It should strike Mr Cooke that the 90% approval rating that Mahinda Rajapaksa enjoys, going by the last Gallup poll, is not an indication of “idealisation” of either his leadership or the role and functioning of his government.

Mr Cooke should also examine the possibility that one may support and defend because the object of that support is a bulwark or counterweight against a far greater threat or threats. Still more clearly, one extends support because the object of that support is the only or best available alternative against a greater, more insidious danger. It is a matter of the hierarchy of contradictions; of judging which one is primary and which is secondary in a given stage or phase of history, or a given conjuncture.

At the time he was elected to office and until the successful completion of the war, Mahinda Rajapaksa was far more solution than problem, and was by no means the main danger to the interests of Sri Lanka, its peoples and the anti-imperialist cause as a whole. Though the case is less clear and more complex in the post-war period, this remains so, perhaps to a far lesser extent, as long as (a) Diaspora and Tamil Nadu based pro-Tiger secessionism and external hegemonic interventionism remain a threat and (b) Ranil Wickremasinghe and his UNP remain the only real alternative in terms of the electoral endgame. (Whatever upheavals and however radical, the endgame in Sri Lankan politics at the centre, is always electoral). Were both or indeed either condition to be absent, the entire analysis would be subject to change.

Now, is this my convenient reconstruction or is it the structure of real choices that prevailed when I supported Mahinda Rajapaksa? Let us turn to a scholar whose perspective is almost totally at variance with my own. In a recent Routledge publication, Bradford University’s David Lewis reassesses the war and the diplomatic battle from a perspective that is sharply hostile to the final war and the Rajapaksa administration. (See David Lewis, 2010: The failure of a liberal peace: Sri Lanka’s counterinsurgency in global perspective, Conflict, Security & Development, 10:5, 647-671) Senior Research Fellow at the Centre for International Co-operation and Security in the Department of Peace Studies, University of Bradford, Lewis headed the International Crisis Group’s Sri Lanka programme in 2006-7. 

“…From 2005 onwards the new government led by President Rajapaksa rejected all of the explicit or implicit premises that were associated with the conflict resolution mechanisms of the peace process: that the government and LTTE had parity; that there was no privileged status for the sovereign state; that changes to territorial integrity—either through federalism or forms of confederation—were possible avenues towards conflict resolution; and that only external mediation and oversight could enable a settlement to be achieved”. (p 652)

The choice was clear: either these ‘premises’ or their rejection.  I criticised and rejected them from the outset, as did the majority of Sri Lankan people later. My support for Mahinda Rajapaksa as presidential candidate and president was because he stood opposed to or was the only candidate critical of these premises, while the other candidate was their co-architect and agent. I continue that basic support for Mahinda Rajapaksa today, although in a far more nuanced manner, because those who stand against him (except for those forces to the left of him) are those who supported these ‘premises’ or did not oppose them, and who wish to punish him and Sri Lanka’s military for rejecting those premises. That basic support will continue as long as those conditions exist and preponderate.

David Lewis sets out Rajapaksa’s response: “Rajapakse rejected any notion that the LTTE was an equal partner in negotiations; he refused to acknowledge its claim to be the ‘sole representative of the Tamil people’, and instead labelled it as ‘the demonic forces of terror’. The state was declared ‘indivisible’ and no concessions either in territory or political power would be ceded to the LTTE; instead Rajapakse aimed for a ‘single country unified under a single standard’.  Finally, external mediation would no longer be required…” (Ibid)

I not only supported and defended this response; I had been advocating it for years. My stand did not derive from any variant of Sinhala nationalism. If it did, it should have been limited to the Sinhalese and not proved capable of obtaining broad support including from progressive and anti-imperialist global forces.

Again, David Lewis coming as he does from a contrary standpoint, provides objective confirmation of the global stakes.

“…This shift—if it develops more broadly—will be the result primarily of a reassertion of sovereignty norms against the liberal norms and conflict resolution practices which have made up the international peace-building agenda of the past two decades…The various elements of this approach to peace-building, which was institutionalised in a range of interventions from Bosnia to East Timor, came to be labelled (primarily by its critics) as the ‘liberal peace’, a set of policies and programmes that often prescribed liberal political and economic policies in conflict-affected areas as part of a broader international effort to bring an end to civil conflict…” (p649)

“This shift in approaches to conflict resolution was also encouraged by a change in attitudes and norms related to state sovereignty. In the Cold War period sovereign states had a special status, and governments held a privileged position in any conflict resolution process, relegating opposition movements to the subordinate position of “rebels”’. The maintenance of existing state structures and their territorial integrity took precedence over claims of self-determination and movements for secession. Only in specific circumstances, such as that of an anti-colonial liberation movement, could ‘rebel groups’ claim a special status that conferred international legitimacy. In other circumstances, such as the Biafra conflict in Nigeria, or Katanga in the Congo, international support was primarily provided to the central government; the norms of sovereignty became increasingly embedded. In the early 1990s, the break-up of the USSR and Yugoslavia and the growth of supranational organisations, such as the EU, helped to undermine sovereignty norms, assisted also by the growth of non-governmental organisations and the ‘Third Wave’ democratisation processes…Nicholas Wheeler and others have argued that a new norm of ‘humanitarian intervention’, with obvious implications for sovereignty norms, began to gain ground in the UN in the 1990s.

These changes in norms related to sovereignty had a significant impact on the way governments dealt with armed rebellion and civil wars. In these new approaches to resolving conflict, states and non-state actors were often given effective parity in peace negotiations, and secession or significant levels of autonomy were considered a possible avenue for conflict resolution. The inviolability of state sovereignty came under attack, fuelled by a new privileging of democratic values and universal understandings of human rights, which gave new status to groups claiming to be the victims of state repression. The emergence of new states such as Kosovo and East Timor were the logical, if controversial, outcome of these new approaches…” (Ibid p 650-1)

“The Sri Lankan peace process included many of the elements and approaches that had become familiar during the 1990s. The peace process was heavily internationalised…” (p 651)

What Michael Colin Cooke cannot understand, but David Lewis does, is what this meant from the point of view of contemporary global dynamics. I might disclose with some modest degree of satisfaction, that the latter devotes considerable attention to the battles in the UN HRC, their embedding in the world context and their implications, citing me (in GV!) a few times:

“However, it was not merely this direct bilateral financial and strategic support that assisted Sri Lanka nor the military hardware that it could access from China and from other countries such as Pakistan or Ukraine. Sri Lanka also ably took advantage of shifts in the international geopolitical balance to promote and benefit from changes in the understanding of international norms …related to international responses to internal conflicts.Two normative areas were of particular relevance: those norms that reinforce or undermine particular understandings of state sovereignty; and those norms that propose limitations on the use of force in internal conflicts or advocate peaceful resolution rather than the use of force. In both areas, key influencing states in international forums (such as Brazil, Russia, India, China, Indonesia and South Africa) have tended to support a reversion to pre-1991 norms, supporting maximalist understandings of state sovereignty and resisting norms that constrain particular ways in which force is used inside state borders. 

Many of the battles over conflict-related norms between Sri Lanka and Europe took place in UN institutions, primarily the Human Rights Council (HRC), of which Sri Lanka was a member until 2008…it was Sri Lanka which generally had the best of these diplomatic battles. On 27May 2009 a HRC resolution congratulated Sri Lanka on defeating the LTTE… Brazil, Russia, India and South Africa were notable supporters of the Sri Lankan resolution…During the conflict China and Russia—backed by some other states, such as Vietnam and Libya—made it clear that they would block any efforts to place the Sri Lankan crisis formally on the Security Council agenda. Under pressure from the UK and France, in particular, Security Council members finally agreed a compromise statement in May 2009, expressing ‘grave concern over the worsening humanitarian crisis in north-east Sri Lanka’, although this too was produced without a formal discussion in the Security Council chamber. Similarly, a move to produce an investigation into war crimes in Sri Lanka came directly from the office of the Secretary-General, and did not require a Security Council vote, much to the displeasure of Russia.

These successful alliance-building efforts by Sri Lanka in the HRC and the Security Council reflect broader trends…

There is also evidence of growing resistance to other controversial conflict-related norms, such as the Responsibility to Protect concept. Although most major powers, including China and India, formally adopted the concept in 2005, they have resisted its application in a number of conflict environments, and there have been attempts to dilute its application and scope…” (ibid pp. 658-9)

“…Although this process of contestation reflects shifting power relations, and the increasing influence of China, Russia and other ‘Rising Powers’, it does not mean that small states are simply the passive recipients of norms created and contested by others. In fact, Sri Lankan diplomats have been active norm entrepreneurs in their own right, making significant efforts to develop alternative norms of conflict management, linking for example Chechnya and Sri Lanka in a discourse of state-centric peace enforcement. They have played a leading role in UN forums such as the UN HRC, where Sri Lankan delegates have helped ensure that the HRC has become an arena, not so much for the promotion of the liberal norms around which it was designed, but as a space in which such norms are contested, rejected or adapted in unexpected ways. 

….As a member of the UN HRC Sri Lanka has played an important role in asserting new, adapted norms opposing both secession and autonomy as possible elements in peacebuilding—trends that are convergent with views expressed by China, Russia and India…The Sri Lankan conflict may be seen as the beginning of a new international consensus about conflict management, in which sovereignty and non-interference norms are reasserted, backed not only by Russia and China but also by democratic states such as Brazil.

If the international normative environment begins to fracture further as non-liberal states gain greater influence over international governance structures, there may be a break-down in common understandings of normative approaches to conflict resolution, reflecting the potentially sharp differences between liberal norms and the influential alternative approaches that …describe as ‘Eastphalia’.” (pp. 658-661)

What was at stake in the Sri Lankan conflict and what continues to some degree (with the raucous calls for an ‘international inquiry’) to be at stake, is conformity or resistance to the post Cold War global order. David Lewis, a supporter of that order, understands this. Michael Colin Cooke’s reliance on Noel Malcolm’s nonsensical narrative about Yugoslavia and Kosovo clearly reveals that he does not. Here is what Fidel Castro had to say just months ago, in the aftermath of the Libya intervention, about Kosovo:

“…NATO assumed this global repressive role as soon as the USSR, which had served as the U.S. pretext for its creation, disappeared. Its criminal purpose became obvious in Serbia, a country of Slavic origin, whose people heroically struggled against the Nazis during World War II. In March of 1999, when the countries of this nefarious organization, in its efforts to break up Yugoslavia after the death of Josip Broz Tito, sent in troops to support the Kosovar secessionists, they met with strong resistance on the part of the country´s experienced forces which remained intact. The Yankee administration, advised by the right-wing Spanish government of José María Aznar, attacked Serbian television stations, bridges over the Danube River and Belgrade, the capital of the country. The embassy of the People’s Republic of China was destroyed by Yankee bombs and several functionaries died. This could not have been any mistake, as those responsible alleged. A great number of Serbian patriots lost their lives. President Slobodan Miloševic, overwhelmed by the power of the aggressors and the disappearance of the USSR, submitted to NATO demands and allowed the presence of troops from this alliance within Kosovo, under United Nations command, which finally led to his political defeat and subsequent prosecution by the less than impartial court of The Hague. He died under mysterious circumstances in prison. Had the Serbian leader resisted a few more days, NATO would have faced a serious crisis which was about to erupt.” (Reflections of Fidel Castro: NATO’s Genocidal Role, Oct 23/24, 2011)

Deriving from Fidel’s re-emphasis in the immediate aftermath of the collapse of the USSR, on national independence, sovereignty, unity and territorial integrity against attempts at ‘dismembering’ ( his term) countries,  this was precisely my understanding of Kosovo and its implications for Sri Lanka, which David Lewis correctly notes that I linked and deployed in my discourse in Geneva.  Michael Colin Cooke’s failure to comprehend the turning point that was Kosovo is symptomatic of his larger failure to comprehend — especially from the perspective of the South– imperialism, hegemonism and the struggle for global equilibrium today. He also fails to understand why every government or state born of a revolutionary or liberation struggle, as well as governments led by those with a revolutionary project or provenance, ranging from Cuba to Vietnam, from Brazil to China, from Uruguay to Angola, from Venezuela to Laos, from Ecuador to Ethiopia, from Venezuela to Mozambique, defend and support Sri Lanka in the terms, for the reasons of principle, and to the extent that I do (“idealization of the current government” having nothing whatsoever to do with it). Debating Marxism with such a man is a waste of time.

In the face of Western pressure towards the end of the war, Mahinda Rajapaksa did what Fidel thought Milosevic should have but did not. Sri Lanka did not blink. Any project worthy of support (especially by progressives) that seeks to supplant or supersede Mahinda Rajapaksa must defend the gains made by him in matters of national independence, sovereignty, territorial integrity and unity. It must support what is correct in what he has done and is doing, while being critical of what he should do but is not, and what he shouldn’t but is. So long as there is real pressure and threat from outside, the Sri Lankan people will not opt for anyone who is perceived as a weaker leader than Mahinda on these issues. The Sri Lankan people will only turn to a leadership or project that is more enlightened, pluralist and progressive; that can defend and consolidate his gains using ‘smart power’ while rectifying his errors– never someone who is perceived as a weaker defender of national independence, state sovereignty and the ‘general will’ of the people.

• Poll: Prospects for Peace in Sri Lanka in 2007
• Is Sri Lanka China’s Georgia?
• Debating sovereignty in Sri Lanka
• Once more into the breach
• Is Sri Lanka in danger of being held accountable by the International Criminal Court?

GV caption: Three terrorists, two terrorists, former terrorists, patriots or a hero? How one sees this image is  measure of how much Sri Lanka remains divided post-war. Image shows Secretary of Defense Gotabaya Rajapaksa speaking during the inaugural National Conference on Reconciliation in Colombo November 24 ,2011. REUTERS/Dinuka Liyanawatte, courtesy MSNBC.

One of the most fundamental challenges of peacemaking and peacebuilding is confronting the past while building a just foundation for the future. Fighting impunity and pursuing peace are not incompatible objectives – they can work in tandem, even in an ongoing conflict situation.  – Ban Ki -moon, The Secretary General, UN [1]

Background of Silva’s report

Since the brutal war in Sri Lanka came to an end in May 2009 with the violation of International Human Rights Law and Humanitarian Law, the International community called for an International Independent Investigation [III] into war crimes and crimes against humanity. Due in part to this pressure, the UN Secretary General appointed a Panel of Experts (PoE) to advise him on accountability issues in Sri Lanka. The PoE findings also recommended an International Independent Investigation.

However, the Government of Sri Lanka (GosL) rejected this call and refused to accept the PoE as a UN report and called the UN Panel of Expert report as the “Darusuman” report. Mr.Darusuman, who was the head of the UN Panel of experts.

In response to war crimes allegations and the calls for an III, Sri Lanka came out with its own home grown report, which is a domestic “investigation”. The “Lessons Learnt and Reconciliation commission – LLRC” is an outcome of this process. I call this report “Silva’s report” as Chitta Ranjan De Silva is the Chairmen of the so called Lessons Learnt and Reconciliation commission and he was a former Attorney General and Solicitor General of Sri Lanka. Silva’s report is flawed and has completely failed to reveal the comprehensive facts and break the veil of silence that covers what occurred in the past. The key intention of the report is to hide the deliberate attacks on Tamil civilians and constant attacks on hospitals, committed by the Sri Lankan Armed Forces [SLAF]. In addition, it has gone to extremes to protect the Chain of Command [CoC], including the Defence Minister/President Mahinda Rajapakse, Defence Secretary Gotabhaya Rajapakse, and Senior level commanding officers, especially those who are loyal to Rajapakse regime. This is one of the main reasons behind the appointments of alleged war criminals to Sri Lankan diplomatic missions. Furthermore, to ensure the impunity of the perpetrators, the regime has had a precise agenda to divert, obstruct, and, if possible, to curb international pressure to establish an III into war crimes and crimes against humanity which took place during the final stages of the Eelam War – IV. This becomes clear even through an interview[2] of Sri Lankan cabinet minister Wimal Weerawansa.

In addition, the Silva report is attempting to intentionally generate ‘new’ facts and to blackout important testimonies. A remarkable outcome of the report, finally, is that it mentioned that the SLAF was responsible for at least some civilian causalities, which is a major transformation from the Government’s previous version of so call “zero-sum-causalities”.

International human rights organizations, such as Amnesty International, Human Rights Watch and International Crisis Group rejected the LLRC report and are still insisting for an III.  Sri Lanka’s past is a good lesson learnt that none of the Sri Lanka’s commissions delivered justice for victims. Considering the fact and the reality, genuine reconciliation is possible, after producing justice for the war victims. It is feasible only through III and committed and collective efforts by the international community.

Flaws of Silva’s report

The Silva report has failed in several ways. Firstly, there is no credible information about war crimes and human rights abuses committed by the SLAF. It also built based on denials and fabricated information.

Foremost, Silva’s report failed to counter impunity, and did not attend to individual and collective accountability. Also, the report failed to address the real needs of the victims. In addition, the way the report was written leads to the conclusion that some important heartbreaking testimonies or serious incidents were purposely avoided from appearing in the report itself. For example:

• What is the fate of Rev. Fa. Francis Joseph, who initiated the surrender of most LTTE political officers during the final days of war?
• What about Rev.Fa. Jim Brown, who was providing humanitarian assistance to the Tamil civilians in August 2006 mid of intense fighting. According to a witness, the Sri Lankan Navy threatened him prior to his disappearance.
• The murder of Rev. Fr. M X Karunaratnam, who was a human rights defender and the Chairperson of the NorthEast Secretariat on Human Rights (NESoHR)[3] was also ignored.
• Particularly, two shocking attacks on school children were ignored in the report, as well. The first one, a massacre of fifty-three students (all school girls) along with their three teachers on the 14^th of August, 2006 while the other attack was on the 29^th of January, 2008, where a bus carrying mainly school children and teachers came under a claymore attack near the Madhu church complex in the Mannar district (Northern part of Sri Lanka). Twenty people in the bus were killed and a further twenty-one were injured, seventeen of them seriously injured. Among those killed were thirteen school children and a school principal. All of the thirteen students who died were between the ages of 10 and 16.[4]
• The report included the information that the Ceasefire Agreement (CFA) was unilaterally declared by the Liberation Tigers of Tamil Eelam [LTTE] on Christmas Eve, 2001; however, nothing mentioned about the murder of the Tamil National Alliance [TNA] parliamentarian Joseph Pararajasingham, who was assassinated inside a Church during on Christmas Eve 2005.
• Besides, in his submission to the Lessons Learnt and Reconciliation Commission, the Bishop of the Mannar Catholic Diocese, Rt. Rev. Dr. Rayappu Joseph, pointed out that over 146,679 people in the Vanni are not accounted for in post-war Sri Lanka. Nevertheless, the report mentions a considerable number of his remarks while completely wiping out the numbers relating to the  unaccounted.
• More importantly, an official from the Pooneryn Agriculture Development Authority went on to note in front of Silva’s commission in Kilinochchi and said, “the Army used cluster bombs and phosphorus bombs against innocent civilians. There were many casualties on account of this. Around 400-600 died daily, and around 1,000 were injured[5], but this testimony was also not mentioned in the report.

Above are some of the crucial events since the CFA was signed that cannot be avoided or ignored under any circumstances.

If the aim of the commission is to genuinely deal with lessons learnt and promote reconciliation, it has to be independent, transparent and accountable.  However, what the Rajapakse regime wants is to place blame, in every instance, on the LTTE, which they have done through Silva’s report as well. But, “if Sri Lanka wants true reconciliation, simply blaming the Tigers is not enough. The government, and the country, must take responsibility for the dead, mend the lives of the survivors — whatever their ethnicity — and stop the vicious cycle of ethnic strife by arriving at a political solution that meets, if not all aspirations, most of them. Until then, the end of the war will not bring true peace.”[6]

Basically, in Sri Lanka’s cabinet minister’s word, a main intention of the report is: “really we do not want the LLRC report. The LLRC report was a requirement of local and international forces who are disenchanted over the military victory achieved by the Government against terrorism and to successfully defeat international pressure exerted on Sri Lanka over alleged war crimes.”[7] Considering the “war lord’s” intention, how can any dignified human being believe that the Silva report or any other so-called “home-grown” mechanism can deliver justice to the war victims?

Role of International Community and the Future of the “Tear Drop”

Indian Faction

India and the island nation of Sri Lanka have a longstanding and unique relationship, particularly with Tamils. There is no need to repeat the ties between India and the Tamils in Sri Lanka. Still, a considerable section of Tamils in Sri Lanka and the Tamil Diaspora believe in and want India’s positive intervention for Tamils in Sri Lanka. However, disappointment continues among most Tamils, as India welcomed  the so-called Lessons Learnt and Reconciliation Commission [LLRC] report, which was published only in the middle of December. At the same time, India has yet to openly acknowledge the report of the United Nations Secretary General’s Panel of Experts on Accountability in Sri Lanka. “New Delhi hesitates to push the Rajapaksa administration on governance issues and has resisted endorsing an international investigation into the atrocities committed during the last months of Sri Lanka’s civil war, in which as many as 40,000 civilians were killed. India’s longstanding interest in a peaceful and politically stable Sri Lanka is best served by strong messages to Colombo to end impunity and reverse the democratic decay that undermines the rights of all Sri Lankans”[8]. India’s constructive action vis-à-vis Sri Lanka will not only help to seek justice and sustainable political solution to the Tamils in Sri Lanka, but is safe for its national interest, particularly from the national security point of view. Also, it can be a precedent for India taking an adequate role as a global player. In contrast, there are more possibilities in the long-term that suggest that a lack of India’s appropriate action affect its own national interest and India may lose its remaining influence over Sri Lanka and gain more frustrations from the Tamils not only in Sri Lanka, but remarkably from Tamil Nadu, within India itself.

Chinese Faction

China as a leading player in geopolitics should support those international actors concerned with protecting and promoting human rights and justice in Sri Lanka. China should not be an obstacle to seeking justice for war victims. While extending its economic interventions in Sri Lanka, China should not oppose a human rights-based intervention in Sri Lanka, which China itself calls as an intervention on one countries internal matters. Ethno-political conflict in Sri Lanka is not any more an internal matter. It became an international issue long ago. China should support or, at the very least, not oppose bringing any resolution to the UN Human Rights Council or UN Security Council, which is connected to accountability in Sri Lanka.

Role of the West

It was both tragic and unfortunate that Western countries could not stop the slaughter of Tamil civilians at-least during the final stage of the bloody war. Western countries were waiting for the publication of Silva’s report. Now, the report is published, but it is clear that the report has not met international standards. Also, the outcomes of the report raises serious questions about its credibility. According to Human Rights Watch, the report “disregards the worst abuses by government forces, rehashes longstanding recommendations, and fails to advance accountability for victims of Sri Lanka’s civil armed conflict.”[9] Western countries have to take all needed and helpful measures to establish an independent, international investigation into the violation of international humanitarian law and human rights law. Also, they have to send independent fact-finding missions to get the full picture regarding the past abuses and ongoing land grabbing, systematic demographic change and militarization in the Tamil homeland, which is the worst part of “post-war” Sri Lanka.  Therefore, as responsible global players who promote liberty and democracy, the West has to act constructively and swiftly in order to create a lasting peace in the island nation rather than waiting further. Especially, as the US concerns itself to strengthening its presence in the Asia-Pacific region, they have to take bold and genuine efforts to ensure that justice will be delivered to the war’s victims without any delay.

• Sri Lanka’s Diplomatic Offensive Won’t Make Killing Fields Disappear
• The official report of the LLRC
• An Era of Sri Lanka’s President: From Mullivaikal to Oxford Union
• Reconciliation without Truth in Sri Lanka?
• Sri Lanka’s Tamil question: Justice, Lies and Videotape

Photo courtesy JDS

The concluding report of Sri Lanka’s Lessons Learnt and Reconciliation Commission (LLRC) was finally made public in mid-December, after multiple delays and an interim report that went mostly unnoticed.

The Commission’s report has sparked considerable debate within an increasingly stifled public sphere, rejuvenating conversations in Sri Lanka about governance, human rights, and a permanent political settlement. Unfortunately, because the Report was only released publicly in English, a substantial number of Sri Lankans are excluded from these conversations. We also note that in a true democracy, a free press holds government to account: Sri Lanka needs—and clearly does not have—a strong fourth estate to track the Government’s implementation of LLRC recommendations.

We welcome the Report’s contributions to political discourse, but even its most critical conclusions reveal its irredeemable limitations: like the many commissions of inquiry before it, it is neither a truly investigative body, nor empowered to hold political elites to account. Nevertheless, the Report, which contains the testimony of thousands of citizens and surveys the political challenges confronting Sri Lanka, invites further discussion and debate.

1. The Report contains useful recommendations for the country’s ongoing political, social, and economic development, as well as honest assessments of historic failures by Sinhalese and Tamil political leaders. We welcome especially the clear statement that to move forward, Sri Lanka’s citizens must acknowledge and mourn all losses from all communities. This is an important rebuke to unspoken post-war policy: the Government honors the military while refusing to acknowledge the thousands of Tamil civilians killed at the end of the war, and the traumatic impact of those final months on those who survived.

2. The Report effectively marks its own limitations throughout. The Commission was never equipped to meet the post-war needs of the public, and indeed, was formed largely without its input. However, in several instances, the Commission sought to go beyond the weak mandate granted it by the Government. Thus, certain sections of the Report exceed the Commission’s original scope. We note particularly the decision to quote at length numerous citizen testimonies, especially those related to disappearances, as well as a certain flexibility with regard to permitted timelines and histories. The resulting document presents a more expansive and critical view of Sri Lanka’s human rights situation than the Government might have initially contemplated.

3. The Report also addresses the ongoing hardships Sri Lankans face two and a half years after the war’s conclusion. These include militarization of the North and East, the challenges of post-war return and resettlement, and diminishing prospects for national reconciliation. The Commission advocates for a political solution so that the conflict may not continue by other means, and foregrounds the need for the devolution of power as an issue “of national importance, affecting the people of the entire country.” We welcome the urgency with which the Commission seeks to promote democracy—specifically, power-sharing between all communities and accountability from their political leaders.

ACCOUNTABILITY

4. The Government has repeatedly promoted the LLRC as an adequate response to the demands of post-war justice and accountability, resisting calls for international war crimes investigations. Of critical importance, therefore, is the Report’s treatment of war crimes, crimes against humanity, and other serious violations of international law allegedly committed in the final phases of the war. The U.N. Panel of Experts, noting civilian casualties in the tens of thousands, deemed these allegations substantial enough to warrant an international investigation of war crimes committed by both LTTE and Government security forces. International reporting, notably Channel 4’s documentary, “Sri Lanka’s Killing Fields,” alleged the same.

5. However, the Commission’s response to these allegations is stunningly inadequate. The Report arbitrarily invokes the principle of proportionality to justify some deaths and attributes others to “bad apples,” peremptorily concluding that there was no systematic or large-scale targeting of civilians, and that civilian deaths were neither intended nor recklessly disregarded. We acknowledge the many reports that individual members of Sri Lankan security forces acted compassionately and bravely in aiding civilians escaping the No-Fire Zones. However, this does not preclude the possibility of larger-scale war crimes sanctioned, implicitly or otherwise, by the military hierarchy. These allegations call for more than the Commission’s cursory treatment; they require the scrutiny of an independent body.

DIASPORA

6. Considering our own positions abroad, we also note especially the Report’s comments on the Sri Lankan diaspora.

7. The Commission wisely advises the Government to liberalize its policies with regard to its diaspora communities, and to make space even for those it counts as adversaries. We appreciate particularly its comments about easing travel, obtaining dual nationality status, and effecting remittances, particularly as these measures disproportionately affect minority communities.

8. Lanka Solidarity also notes the Report’s references to “hostile diaspora groups.” These are identified solely as being Tamil nationalist and separatist groups, some of which have been described as supporting the LTTE. Through their uncritical support of the LTTE, a number of these groups have overshadowed genuine reconciliation efforts and substantially harmed the welfare of many Tamils living in Sri Lanka.

9. However, criticism of diaspora actors should doubtless include Sinhala nationalist groups, which have also polarized discussions of Sri Lanka’s future by acting as the Rajapakse regime’s rump abroad, labeling any criticism of the government as pro-LTTE, and advancing Sinhala Buddhist chauvinism and political fantasies.

WOMEN

10. Despite the conflict’s disproportionate impact on women and children, the Commission included only one woman.

11. There were consistent and serious allegations of sexual abuse and violence during the end of the war and in its aftermath; however, the Report only mentions sexual violence briefly in relation to the Channel 4 documentary, and then focuses mostly on the need to authenticate the footage. Elsewhere, the Commission only makes oblique references to gender violence, and fails to address with sufficient urgency and specificity the particular vulnerability of women in a heavily militarized post-war environment.

RECOMMENDATIONS FOR FUTURE ENGAGEMENT

12. The Report should be offered in Sinhala and Tamil so that it is accessible to the citizens whose response to its content is paramount. This is in keeping with the Commission’s own emphasis on national language policy as key to political reconciliation.

13. An independent investigative process with international participation must immediately be initiated. The inclusion of international actors in an investigative process regarding state actions provides a measure of accountability, especially in light of the centralization of state power in Sri Lanka. Thousands of civilians were killed in the final months of the war, and allegations of war crimes have been made consistently and credibly ever since. The failure to investigate these allegations denies these victims justice; reflects more pervasive crises of accountability, rule of law, and governance in post-war Sri Lanka; and sets a dangerous precedent for other arenas of armed conflict.

14. Witnesses for any further commissions of inquiry or investigation should receive adequate protection, as the witnesses for the LLRC did not.

15. The Government must demilitarize the North and East so that civil society in those areas can rebuild. A sizable military presence currently encroaches on key aspects of civilian life, such as education and trade. The Government must directly address a climate of fear and political culture of violence. Its actions on the ground must match public commitments.

16. In particular, we note that violence against women is growing in the North and East. Such incidents must be investigated and prosecuted swiftly. Law enforcement must be sensitized to violence against women. Tamil-speaking police and other civil authorities must be available for women to seek redress. Demilitarization is vital to women’s security.

17. Reconstruction efforts in the North and East should be consultative and provide affected civilian populations with emotional and financial security in their resident lands. This requires, at a minimum, the enforcement of land rights and the equitable resolution of land disputes and issues surrounding the return and resettlement of displaced persons. However, instead of confronting the complex of economic, psycho-social, and reconstruction needs of those living in the North and East, the Government is relentlessly pushing forward with its economic vision of turning Sri Lanka into a cabana republic.

18. We note the commission’s post-report recommendation to remove ethnic classifications on Sri Lankan identity cards. To the extent that this limits discrimination, this would be a welcome move. However, where such discrimination is widespread, identifying differentiating factors provides an important tool by which to track the treatment of minorities. Advancing the concept of a Sri Lankan identity is a commendable goal—as long as it is not merely a guise for Sinhala Buddhist nationalism. The rhetoric to rebuild Sri Lanka’s pluralistic identity must include rather than obliterate minority difference.

19. Leaders from all communities and across the political spectrum in Sri Lanka should prioritize a fairly negotiated political settlement. In doing so, they should recognise and engage with the broad range of perspectives within the diaspora. Indeed, as the Commission itself acknowledges, the Government has much to gain by recognizing “the untapped potential of the expatriate community . . . and [engaging] them constructively with the Government and other stakeholders involved in the reconciliation process.”

20. In turn, the most vocal factions of the Tamil diaspora, which have long been uncritical of the LTTE, must reconsider and reject exclusivist nationalism and political intolerance. Calls for war crimes investigations originating in the diaspora will resonate more strongly in Sri Lanka and the international community if they acknowledge human rights abuses committed by the LTTE. Sri Lankan diaspora communities must consider their own responsibility for the present situation, participate in processes of honest reflection, and better appreciate the myriad challenges confronting minorities—not just Tamils—in Sri Lanka.

21. A sizable portion of the Tamil diaspora was silenced by the LTTE’s overseas proxies during this long conflict. It is time for this silent majority to voice its views, to engage with conversations like those begun by the LLRC, and to participate, critically and constructively, in Sri Lanka’s future.

• A slumbering LLRC: The image of reconciliation in Sri Lanka?
• Archive of Lessons Learnt and Reconciliation Commission (LLRC) submissions and media reports
• ‘Learning Lessons’ from those affected by war: Does the Lessons Learnt and Reconciliation Commission really listen?
• Reconciliation without Truth in Sri Lanka?
• LLRC: Testimony by Ferial Ashraff

Image courtesy New Security Beat

A regime change takes place only if the majority of people in a country want a change. In Sri Lanka today not many people would want it. After 30 years of war and terror, people are able to get about without fear, safe in the knowledge that the LTTE has been annihilated. It is this regime, the Rajapakse regime that made it possible and so the sense of gratitude is very strong among the people. It is this feeling that makes the people vote for the Rajapaksas time and time again. All other feelings of frustration simply evaporate, when they remember the bomb explosions of the past in contrast to the peace and security they enjoy today.

There is also no opposition waiting in the wings to take over power. Slowly but steadily a merger is taking place before our very eyes, in parliament. The UNP which is still the largest opposition party has more or less merged with the UPFA, disregarding the voters who sent them to parliament to oppose the same UPFA government! The UNP leader Ranil Wickramasinghe is now safe in the arms of President Mahida Rajapaksa, bound to enjoy eternal bliss as the permanent leader of the opposition, to prevent it from bringing about a regime change. Ranil Wikramasinghe is today hated by many of the UNP supporters who don’t even bother to vote at elections. But he clings to his position supported by the government and the president. Together they will not allow a regime change. After the recent election of the UNP leaders as a newspaper columnist has said, “The UNP lost, Ranil won and Mahinda Rajapaksa got his Christmas gift!”

The other opposition party, the JVP has been divided and sub-divided so many times that it cannot raise its head again. People do not vote for that party because they cannot forgive or forget the atrocities committed by its members in the late 1980s although Wimal Weerawansa, one of its leading active members during that period is today a popular cabinet minister, close to the president. The JVP that moved away from the government is so helpless today that it has to appeal to the “hated” international community to secure the release of its Jaffna district organizer Lalith Kumar and Kugan Muruganandan who were abducted by an unidentified gang of armed men on December 9^th, while organizing a rally in Jaffna. This incident is blamed on the government. In short the JVP cannot initiate a regime change.

This regime is being criticized by the UN and the international community for not investigating war crimes and for the many abductions and disappearances that happened then and continue even today. But a majority of Sri Lankans, other than those in the North and East do not want the Western powers to interfere in our internal affairs. They feel we need to protect our president from these ‘international vultures’’. These ‘vultures’ include America, the western countries and the UN. “If the leaders of these countries could ignore the UN and bomb countries beyond their borders, with impunity killing so many civilians, what moral right do they have to question us?” they ask. “Our president bombed only our own ‘Terrorists’, may be killing some civilians in the process. These civilians could have included women and children but they were all LTTE supporters or sympathizers”.  Stretching this point further they could even ask, (as Kumar David puts it) “Americans, British and various colonials have a criminal record of human rights violations, so what’s wrong if we enjoy our share of war crimes?’ we can also tell those who accuse us , “He that is without sin among you, let him first cast a stone” and there will be no one, as it happened in the case of the accusers of the woman brought before Jesus Christ.  With such strong popular support, this regime will continue for a very long time.

There are some who do not brand all Tamils as Tiger supporters or sympathizers and realise that thousands of Tamil civilians may have perished in the last battle. But even they do not blame the regime or support an investigation of its war crimes. They argue that neither we nor Banki Moon and his UN, nor the international community, nor our big neighbor India made a serious attempt to stop the killings. We allowed it to happen because all of us wanted an end to the 30 year war. Today all of us enjoy the benefits of that massacre on the shores of Nandikadal. It is that final battle where thousands of civilians (along with LTTE carders) died (according to some international sources) that brought us this peace. Today if we are free to travel to any part of the country without fear, it is this regime that made it possible. As we are all responsible for the war we have no right to point a finger at the regime or demand a regime change.

Those civilians mostly in the North and East would want a regime change hoping that could lead to war crimes investigations. Parents affected by the war want to know whether their children are dead or being held in a torture camp. They have to know the truth however devastating it maybe before they can forgive and forget. It’s only after the truth is revealed and they come to terms with it, can reconciliation begin. The regime seems to believe that reconciliation can be achieved by hiding the truth and promoting economic development. Since the present regime will never reveal the truth, or release the former army commander who could explain what actually took place during the last days of the war, the only option left for these long suffering people seems a regime change. Only when the government is headed by those who had nothing to do with the war will the truth be known.

Victims of Human Rights violations, like the families of all those who have disappeared like Eknelogoda or killed in broad day light like Lasantha and Raviraj or the hundreds who have been abducted over the years by unknown armed gangs in white vans also want a regime change. They realise that there is a close link between crime and political power today. Not only politicians but persons even remotely connected to them feel that the laws of the country do not apply to them. They can shoot and kill an ‘enemy’ or a rival in the presence of hundreds of people in the street and get the CID to ‘prove’ that it was the dead man who fired the first shot. The killer can be proved innocent and the victim the villain. Out of the hundreds who witnessed the killing not one will come forward to tell the truth. Fear would seal their lips. This blatant abuse of power and distortion of justice cannot continue, this regime must change, they say.

Those who seek lasting peace and stability also look forward to a regime that would sincerely implement a political solution, granting devolution of power specially to the North and East. They feel that only if such a political solution is offered can we expect the war affected minorities not to conspire against the state and plan another insurgency, wreaking terror. They do not believe in the “elephant analogy” which is as follows: “compared to us human beings the elephants are a very small number and we could easily kill them all and grab their traditional territory, so with Tamils who are a very small minority among us”. They believe that disgruntled neighbours, even if they are small in number are always a threat to peace and stability. It is better to remove their grievances rather than kill them all, as we are Buddhists who do not suffer from the Mahawansa mindset “where arahants refer to Damilas who were not Buddhists (in King Elara’s army) as not more to be esteemed than beasts whose slaughter need not be lamented”.  For the sake of peace and stability this group would welcome a regime change.

When the president had asked Mano Ganesan (leader of the Democratic People’s Front) recently to advise the TNA to come back for talks, so that a solution could be found, Ganesan is reported to have pointed out that since the president enjoys the largest support base among the Sinhalese, he could easily bring in a solution that would not be opposed by the Sinhalese majority. That seems to be the truth. What is obvious then is that the president himself is not interested in a political solution. Now that the LTTE has been eliminated he does not see the need for any other solution. The military solution has been very successful. Therefore whatever solutions are offered to him he simply discards, including his own APRC Expert Panel Report. Now, the next commission appointed by the president, the LLRC has submitted its report to him after 17 months of toil. The commission takes the view that the root causes of the ethnic conflict lie in the failure of successive governments to address the genuine grievances of the Tamil people and a political solution based on devolution is imperative for lasting peace. These recommendations will not please the president and the LLRC report may join the APRC report in the president’s dustbin!

As to the questions, “will there ever be a ‘Tahrir square’ in Sri Lanka?” the best answer is provided by Kawshalya (Daily Mirror December 28^th 2011). Commenting on a massive crowd that stood in an unbroken line from Kotte to the Vihara Mahadevi park to cheer and support the demonic 18^th Amendment of which they knew nothing she says “Their ignorance could have been pardoned had not they willingly or otherwise become the actors of a farce staged and scripted by the politicians who showed the world the magnitude of our political illiteracy”. We choose to be illiterate and not read the clear writing on the wall. Tahrir square is not for us.

And yet there are a few flickers of hope now and then, like a sane statement from the Friday forum with Jayanta Dhanapala and also sporadic demonstrations against acts of injustice, like the demonstration over the Habaraduwa OIC’s transfer. Here the people have protested against a powerful politician trying to punish an honest police officer for arresting all criminals irrespective of who they were. If more people come forward to fight corruption, injustice and the abuse of power, there may be some hope of a regime change, but what is more likely to happen is that this regime will continue merrily to go down the primrose path taking the country along with it.

• Reconciliation without Truth in Sri Lanka?
• HAS MAHINDA RAJAPAKSA BEEN A TRAITOR TO SRI LANKA?
• Which comes first – Human Rights, Media or Terrorism?
• Poll: Prospects for Peace in Sri Lanka in 2007
• Tamil National Alliance statement on the leaked UN report: An irrefutable confirmation of events

Photo courtesy JDS

The New Year brought a valuable gift in my email. It was a dossier entitled ‘Seeking Space for State Reform’ and carried an even more beguiling subtitle, ‘Consensus and Contradictions in Public Perceptions’.  A publication of the ICES (the International Centre for Ethnic Studies, from and of which I hadn’t heard for quite a while), it was a product of the Politics of State Reform Project. What made it compelling reading was that it was nothing less than a ‘National Survey of Grassroots Perceptions of State Reform’, which, translated, meant that it was a recent survey of public opinion across all communities, about the ethnic conflict and the  various reform proposals to address or resolve it.

Once you’ve dispensed with the layers of very proper titles, you realize what the report contains. It tells you what Sinhalese, Tamils and Muslims think, today, over two years after the war, about the most contentious issues that have divided us over the post-independence decades. As if that weren’t important enough, it thereby tells you what the firm (possibly solid) contours of communitarian consciousness are, what the problem is, what the possible options are and which ones are impossible. Thus, the ICES survey gets to the crux of the matter.

The statistics of the survey conducted from June to mid August 2010 reveal the problem, but also indicate the solution.  At its starkest the problem is that a shade over half of Sri Lankan Tamils polled, appear to think that the solution to Sri Lanka’s travails is an independent Tamil state. Simply put, 54% of Sri Lanka’s Tamils (who comprise 14% of the sample) support a separate state, i.e. a Tamil Eelam. Set that against 95% of Sri Lankan Sinhalese (who comprise 72% of the sample) who stand for a unitary – that’s right, unitary, not merely united—form of state, with a stratospheric 96% of the view that the unitary state is “necessary to prevent the disintegration of the country”. This is also the view of the third largest community, which is the second largest minority, namely the Sri Lankan Moors, 90% of whom agree that a unitary state is “necessary to maintain a sense of national unity”. So, the Sri Lankan problem is the probably unbridgeable chasm between a plurality of the minority Tamils who are for a separate state and a near-totality of the Sinhalese majority and the Muslim minority, who are for a unitary state.

The second chasm is between 90% of Sinhala opinion which holds terrorism responsible for the conflict and the much lower 42% of SL Tamil opinion that holds the same view. In political terms, the refusal of the TNA to denounce Tiger terrorism is unlikely to render that party more acceptable to the Sinhala majority which it has to convince or at least ensure the benign neutrality of, if it is to obtain the reforms it seeks.

Is federalism a simple and obvious solution perhaps? No, because here too the gap is as wide as to be unbridgeable, with almost 90% of SL Tamils for it and nearly 80% of Sinhalese opposed. Sinhala opinion may have been more malleable had the Tamil preference for federalism accompanied a Tamil majority option for a single, united Sri Lanka; in other words if a majority of Tamil opinion were for a federal solution and simultaneously against an independent state for the Tamils. Matters are perceived far less sympathetically when the option for federalism lies alongside the option for a separate state. This understandably reinforces Sinhala misgivings that federalism will not be an alternative but an enabler for secession and is therefore far too risky an experiment.

Perhaps this situation in the Tamil consciousness was influenced by the war, but perhaps not. Perhaps it always was the case, and therefore Prabhakaran was not solely mould but also mirror of secessionist Tamil opinion. The contours of Tamil consciousness, which the doyenne of Delhi’s Lankanologists, Prof Urmila Phadnis termed ‘an autonomist-secessionist continuum’– and the gut instinct of the Sinhalese which understands this reality—has put paid to federalism as a possible solution.

Coupled with the low degree of acceptance among the Sinhalese of the Indo-Lanka agreement, regional autonomy and the Chandrika Bandaranaike Kumaratunga ‘packages’ of 1995-2000, it would seem at first glance that there is no intermediate solution. Interestingly the CBK proposals are the single most unpopular of all reform proposals among the Sinhalese (with a 67% disapproval rating, higher than that of the Indo-Lanka accord, with 63%).

Happily, there is an intermediate solution; a saddle-point. Going by the ICES figures, the Sinhala people are not dogmatically in favor of an unreformed unitary state. Theirs is not an ironclad conservative or neoconservative mindset. Strikingly, the data reveals that the Sinhalese are sensitive to minority grievances, do not support/are opposed to an unreformed state and are acutely conscious of the dangers of lack of reform.

“Significantly, a majority of the Sinhalese (61.8%) also agree that the legitimate grievances of minority communities and lack of equal treatment for all citizens (61.4%) were causes for the conflict.” (p 8 )

 “However, all the communities…including a majority of the Sinhalese (58.9%) disagreed with the statement that there was no need to reform the state.” (p16)

“A majority of the Sinhalese agree along with the minorities that without state reform the minorities would continue to have grievances (80%), continue to be discriminated against (68.7%), development and economic progress would be hampered (76.5%), the international community would not help the country (62.8%) and significantly that even a return to armed conflict was possible (72.2%). These findings indicate a greater awareness among the majority community about the legitimacy of minority demands and the need to provide a constitutional or political settlement to the ethnic conflict despite the decisive defeat of the LTTE by the Sri Lankan state.” (p18)

The reforms that the Sinhalese support are also not of hyper-centralization, but of measured, re-calibrated opening. The Sinhala consensus is best described as that of moderate, centrist nationalism. This study of public opinion on state reforms shows that the majority of the majority is opposed to reforms that go beyond a unitary framework but are for those reforms that stay within a broadly unitary state. The Sinhalese are not against the reform of the unitary state, and instead are for the reform of that state. Senior Minister  and veteran leftist Prof Tissa Vitharana comes across as an unsung hero in that the APRC proposals issuing from the process he chaired “are the only state reform proposals which the Sinhalese seem to find acceptable with a significant majority of people in the ‘agreed to some extent’ and ‘agree’ categories over the ‘disagree’ categories.” (p 15)

Even if one were to consider the APRC as bypassed by the flow of events, the situation remains hopeful because the Sinhalese, though against “regional autonomy” (North-East merger), are fairly solidly in favor of provincial level devolution and a strengthened, not a weakened, system of provincial councils.

84% of Sinhalese think that Provincial Councils give “fair access to resources”, while 85% think that PCs “give all communities a voice at the provincial level” and 76% believe that “PCs will resolve the problems faced by the minority community”.

When the crucial question “can enhanced devolution of powers to the Provincial Councils solve the ethnic conflict?” is posed the study tells us that “In general, when the Agree and Agree to some extent categories are taken together, the findings indicate more support for, than against for Provincial Councils as a solution to the ethnic conflict among all the communities in the country.” (p26)

This conclusion is sharpened in the next segment entitled ‘The most necessary state reform initiatives to solve the ethnic conflict’, the findings of which tell us that:

“The full implementation of the Provincial Council Act was approved by all the communities. This was also the level of devolution of power which a majority of Sinhalese (60%) and Sri Lankan Moors (92.3%) found the most acceptable…All the communities support the establishment of a second chamber in parliament and greater power sharing at the centre.” (p27)

The Conclusions of the ICES study clearly re-state the only possible answer to the problem:

“The statistics provided above indicate that…Among all the communities, enhanced devolution of power to the provinces is seen as a possible solution to the ethnic conflict. Provincial Councils were the level of devolution of power most acceptable to the Sinhalese and the Sri Lankan Moors. The Sri Lankan and Upcountry Tamils favour greater devolution or a system of federalism like that found in India. What is significant however, is that there is more space for devolution than ever before, because of the Sinhalese support for Provincial Councils, which a significant number of Sri Lankan and Up Country Tamils find acceptable.” (p30)

Every decent opinion survey contains surprises. A big one in the ICES data set is the congruence of opinion among the Sinhalese and Tamils with regard to the West, and more specifically, “a conspiracy by the West to undermine Sri Lanka” as a causative factor of the conflict. Roughly 63% of Sinhalese and 70% of SL Tamils polled – yes, a higher percentage of Tamils than Sinhalese—holds that this is a factor.

To return to our main problem, a solution exists, but it requires a shift in our thinking.  The problem of Tamil political alienation can neither be eradicated by repression nor totally resolved by reform, not least because the slim majority or a sizeable segment of Tamils seem to hold onto a solution that is not a reform but lies outside a united, indivisible state. The problem of the identity claims of the Tamil collectivity can be solved only to a degree. Beyond that, it will have to be managed.

The results of elections after the Arab Spring show that citizens in that region are increasingly opting for a moderate nationalism (and a modern, liberal Islam). The results of the ICES survey show that the great majority of Sri Lanka’s citizens are also moderate nationalists. The country’s tragedy however, has been that the nationalists are not moderate or are insufficiently so, while the moderates are not nationalist or are inadequately so.

According to sophisticated soothsayers interpreting the ancient Mayan prophecy, the year 2012 is not one in which the world will end, but the one in which there is an ending of an old era and a transition to a new age, marked by the  shift to a new paradigm.   In Sri Lanka’s case it may have to entail a move away from two contending paradigms– one of a brittle, unreformed unitary state and another of reconciliation through an unfeasible federalism– to a centrist Realism which combines moderate reform with the ‘containment’ (a la George Kennan) of the ideological and political fundamentalism that is the Tamil separatist sensibility.

• Federalism: Some debates never die
• On “traitors” and federalism: Beyond the hypocrisy, towards collaboration
• TAMIL NADU, THE INDIAN MODEL AND DEVOLUTION
• Responding to Sumanasri Liyanage: On Mahinda bowing down to the ‘differing majority’ and On changing the terminology from ‘federal’ to ‘power sharing’
• A response to Dayan Jayatilleka’s “Mindless emotionalism and absence of thinking in Tamil politics”

When Sri Lanka vied for the 2018 Commonwealth Games, there was a telling photograph taken at one of the bashes the regime threw in the Caribbean, the culminating event of a labour intensive, extravagant self-indulgent exercise. The photograph has Hon Namal Rajapaksha MP leading a conga line followed by the Governor of the Central Bank. They both seem…well, happy. However, though a good time was had by all no doubt, that conga line led nowhere. We did not win the bid to host the 2018 Commonwealth Games; agnostics and atheists alike were put on notice about the existence of the divine. The country was saved. Yet the conga line as both a metaphor and description of the structure of power and the ruling regime remains. Into 2012, where will it head?

The old year 2011 like all others before was interesting in the sense of the Chinese curse. It saw the steady decline of governance and the Rule of Law, the steady rise of militarization and the interminable decline of the opposition; more attacks on the freedom of expression and association and the re-emergence of disappearances; grease yakkas, plastic crates and the fatal private pension plan; an unnecessary, yet revealing controversy over the national anthem; the release of a COPE report confirming losses by state enterprises running into billions of rupees and at the same time legislation deemed urgent in the national interest to take over underperforming and under utilised private sector enterprises. Sarath Fonseka continued to be harassed and is now to be written out of the history books Soviet-style, including the revamped version of the Mahavamsa; monitoring MPs and presidential advisors fought to the death and probable permanent disability, High Noon style, and in the dying days of the year, a Pradeshiya Sabha chairman alleged to have engaged in fatal political violence during the last presidential election, is now implicated in the murder and serious assault of tourists. There is of course the fiasco of the release of exam results and the sham/e of Sri Lanka Cricket.

Significantly, some 40 years on from the last pre-war election in 1977, one party was overwhelmingly returned in the south and another likewise in the north in local government elections. The regime – TNA talks are more and more reminiscent of the lines from Macbeth – tomorrow and tomorrow and tomorrow… it is a tale told by an idiot full of sound and fury signifying nothing.

On a positive note, the economy is supposed to be booming. Every index is up – number of tourists, remittances, exports, and foreign direct investment (FDI). Inflation, indebtedness and the cost of living too! The trade deficit remains in billions of dollars despite the increase in remittances, exports, tourists and FDI. The capital city is being beautified – a direct boon of the pairing of defence and urban development we are told and many believe, irrespective of the number of city dwellers who have paid the cost in eviction. There is a highway to the south and an aptly though controversially named Mahinda Rajapaksha Performing Arts Centre with state of the art facilities, as well as night racing to boot.

And there is the Lessons Learnt and Reconciliation Commission (LLRC) Report, the document, which, the regime has maintained, will answer its critics and lay to rest the charge of war crimes and the call for accountability in respect of them. This the Report does not do, thereby lending credence to the criticisms leveled at it in terms of mandate and composition and most importantly, thereby reinforcing the call for international investigation. The LLRC concludes that there was no deliberate targeting of civilians by the armed forces or use of siege tactics by the regime with regard to the provision of food and medicine to civilians in the Vanni. It acknowledges that, “…material points towards the implication of the Security Forces for the resulting death and injury to civilians, even though this may not have been with the intent to cause harm”.

This is largely based on the testimonies of the security hierarchy and suffers from the lack of witness protection, which would have facilitated a more comprehensive account of what transpired. The LLRC makes reference to the technical difficulties in reconstructing what happened and notes the near impossibility of doing so, now. On the key issue of war crimes and violation of international humanitarian law, the report is a whitewash of the regime. This is very disappointing given the urgent need for accountability at the community level in particular, as demonstrated by the number of civilians who testified before the LLRC despite the difficulties and subsequent dangers they faced in doing so.

It is a curate’s egg, however. Its conclusions on reconciliation, the atrocities of the LTTE, militarization, a political and constitutional settlement based on devolution, the politicization of governance, the erosion of the rule of law, the naming of para-militaries and the call for further action on this and on disappearances and detainees as well as the Channel Four documentary, on right to information legislation, are all to be welcomed. All of this begs the question of how any “independent’ or “proper” investigation the LLRC recommends can be done nationally. None of this is new; most of this has been championed by civil society for quite some time. That a regime appointed commission reiterates all of this, underscores both the scale and nature of the challenge the regime faces and accordingly, the scale and nature of the paradigm shift it has to undertake if it is to, as it must, implement these recommendations without delay.

Quo Vadis, the Conga line in 2012? Can the tiger change it stripes; the leopard its spots?

Can pigs fly?

• The LLRC report and ‘accountability’ in Sri Lanka
• Sri Lanka’s Dirty War
• The Final Report of the Lessons Learnt and Reconciliation Commission: A Response
• The verdict sans representation
• THE LLRC AND COMPLAINTS OF DISAPPEARANCES OF PERSONS

Photo courtesy Vikalpa

January 8 marks the third death anniversary of Lasantha Wickrematunge a human rights journalist from Sri Lanka who fought fearlessly for the freedom of the press and relentlessly pursued what he believed was right. On January 8, 2009 he was brutally murdered by the Sri Lankan authorities for his journalism.

Three years after Lasantha’s brutal murder despite the vapid assurances of the Rajapakse regime to the international community, Sri Lanka has turned into a lawless state of abductions, rape and murder with at least two of these incidents taking place in the New Year.

Concentration of power and finances
Even as there is an overwhelming concentration of power and finances in the ruling family, every one of Sri Lanka’s democratic institutions has metastasized into something dangerous and poisonous.

Christmas day was marred by the brutal murder in the South of Sri Lanka, of a British tourist Kuram Shaikah Zaman – a prosthetics expert who had worked for the ICRC in the Gaza strip. His friend a 23-year-old Russian woman was raped with one witness telling the local media that four men “stripped and raped her mercilessly although she was bleeding from her head.” The main suspect in the case is ruling party politician and well-known thug Sampath Vidanapathirana a close friend of the Rajapakse family.

Refuge for criminals and rapscallions
Clearly the ruling regime has become a refuge for criminals and rapscallions as the Sri Lankan government fails to maintain law and order and encourages lawlessness and criminal behaviour instead.

Local media has also reported that the suspect Vidanapathirana had earlier been arrested for the murder of an elderly woman in the run-up to the 2010 Presidential elections but had been released on the basis of a mental disability report filed by the police on his behalf. Despite this he continues in active politics under the protection of the Rajapakse family.

Though the police are conducting preliminary investigations into these gruesome crimes, hopes of justice remain slim as with every other bogus murder investigation commenced for public and international consumption under the watch of the Rajapakse regime.

The name of the game
Inexplicably the police did not even arrest Vidanapathirana and waited insteads for him to surrender a few days later. Here’s what the Asian Human Rights Commission – a staunch human rights defender based in Hong Kong, said regarding the surrender. “Due to the publicity this incident has attracted Chairman Vidanapathirana surrendered to the police. On assurance of anonymity, a policeman explained that such surrenders are nothing but a game. All the conditions of how to deal with the situation and the manner in which the surrendering suspects are to be released are all prearranged, he said. The whole process of criminal investigations is so manipulated by the government politicians that in many similar incidents the suspects have escaped any criminal punishment.”

Yet tourism authorities and hoteliers in the country have preferred to call this a random act and have advised the media to sweep the incident under the carpet for fear it would hurt the expected tourist boom.

Surely material surplus and economic progress cannot make up for the erosion of our society and the destruction of our moral compass.

Killings
If this were not enough, a 25 year old man Dinesh Buddhika Charitanda was abducted on January 3 this year and his body bearing head injuries was found near the Keleni river close to Grand Pass in Colombo. A week earlier, the body of a fish vender who had been abducted by an unknown group was found dead in the same manner at Mutuwal, Colombo.

On 2nd January a man named Mohammad Nistar, was abducted by a group in a white van as he was traveling in a three-wheeler. Sometime later his body was found with bullet wounds to the head. The Asian Human Rights Commission says Mr. Nistar was engaged in the rehabilitation of drug addicts. No one has been arrested for his abduction and murder.

Abduction after abduction
In early December of last year two young men, Lalith Kumar Weeraju and Kugan Murugan, were abducted and have since disappeared. According to human rights groups these two young men were activists campaigning for the International Day for Human Rights on December 10.

On October 27, 2011 a well-known astrologer Mohamed Sali Mohamed Niyas was abducted by a group of armed men and several days later his body was found on the shores of Akkaraipattu in the East of Sri Lanka.

Even the worst scoundrel is entitled to due process of the law and labels in the media of alleged drug dealing as in the case of young Dinesh Buddhika does not absolve the government from its responsibility to uphold the rule of law.

With a total lack of accountability for the war, a disappointing LLRC report that failed to recognize the importance of accountability and justice, and the failure to properly investigate the murders of journalists like Lasantha Wickrematunge, little wonder the commonly held belief that these continued abductions and murders are taking place with the direct or indirect knowledge of the police and with the tacit approval of ruling party politicians.

Powerful friends
Another example is that of Duminda Silva, a Member of Parliament and a close confidant of Defence Secretary Gotabaya Rajapakse. Mr. Silva allegedly a drug dealer was responsible for the attack that led to Baratha Lakshman Premachandra and several others being killed. Yet Duminda Silva remains under the careful protective wing of his powerful friend.

These countless murders, abductions and assaults are not random acts or accidental killings. These are acts of violence that have become emblematic of the current leadership, the erosion of society and the impunity with which the regime now operates.

Any kind of political dissent has been crushed as was demonstrated recently when opposition parliamentarians were assaulted inside parliament itself. Despite death threats and other forms of intimidation of the media no serious investigations into these complaints are ever conducted.

Demonic repetition
When my husband was brutally murdered in 2009, when journalist Prageeth Ekneliyagoda was disappeared in 2010, civil society, the media and human rights organizations said enough was enough. But we have seen that these acts of violence still continue to take place with demonic repetition.

Despite overwhelming evidence, still no investigation
In the 36 months that have elapsed since Lasantha’s murder, there has been virtually no investigation into this crime.

Police had earlier succeeded in taking into custody five mobile phones, which on the day Lasantha was killed, moved in the same pattern as his phone. Police say the phones that passed through 11 cellular phone towers that day have not been used before or since the day of the killing. However, they have not been disconnected either. According to police, one of the five phones appears to have been used to monitor and control the entire operation. A track path of the calls made between the five telephones indicates that they communicated regularly with each other, constantly calling one particular mobile.

One of the five phone numbers indicated on the mobile path shows a call having been made from the spot Lasantha was attacked. According to witnesses, the assassins all rode a uniform make and type of motorcycle. A motorcycle allegedly used in the attack had been recovered the government claimed.

Soldiers arrested and released
During the course of 2010 seven soldiers belonging to the Sri Lankan army’s Military Intelligence Directorate–a unit headed by a close confidant of former Army Commander General Fonseka–were detained for questioning by the Terrorist Investigations Department (TID) and the Criminal Investigations Department (CID). The seven soldiers were separated from an original 17 who were taken into police custody. All 17 have since been released.

Suspect mysteriously dies
In October 2011 the only suspect remaining in custody Pitchai Jesudasan mysteriously died. According to the B Report submitted by the Terrorist Investigations Department dated March 30, 2010, Pitchai Jesudasan was arrested for the murder of Lasantha Wickrematunge and attempted murder of the then Editor of the Rivira newspaper Upali Tennakoon and previous attack on Deputy Editor for the Nation newspaper Keith Noyahr.
With relation to the murder of Wickrematunge police charged that Jesudasan’s national ID had been used to obtain the five SIM cards which were later believed to have been used by the five man hit squad who trailed and murdered my husband on January 8, 2009.

Should be investigated
Jesudasan may have died of natural causes but the circumstances of his death in custody give rise to questions and therefore must be independently investigated.

Moreover, despite the existence of numerous witnesses, no accurate description of the attack on my husband was ever made public by the police. Had there been even the slightest political will to solve this murder the apprehension of his murderers would have been child’s play.

Certainly taken together, all this can leave little doubt in a rational mind that Lasantha’s murder has been the focus of an extensive—if clumsy—cover up.

International Community must act
As we remember Lasantha and his work and other journalists and activists around the world who have paid the supreme price in the line of duty, I call upon the international community to urge Sri Lanka’s government to hold a proper independent investigation into Lasantha’s murder, to bring back the rule of law rather than the rule of one family, to delink the police from the defence establishment, to properly disengage the army from civil administration, torestore the Seventeenth Amendment in order to ensure independent commissions for the Police, Judiciary, Bribery, Finance, Elections and Human Rights Commissions and tosincerely effectively and meaningfully deal with issues of accountability that now plague our nation.

[Editors note: Also read In Memoriam: Lasantha Wickremetunge, Editor in Chief, Sunday Leader and Commemorative lecture on second death anniversary of Lasantha Wickrematunge]

• Demographic Assimilation vs Democratic Accommodations: An analysis of Sri Lanka’s first post war election results
• Bala Tampoe on war and the erosion of democratic governance in Sri Lanka
• War Crimes Accountability In Sri Lanka: Is There A Liberal Democratic Alternative To International Action?
• Another Dangerous, Pervasive Foreign Item Corrupting Innocent Sri Lankan Minds!
• Coming Back Home to a Truth more Dangerous than Fiction

[Editors note: The author was married to Dr. Rajini Thiranagama (née Rajasingham), a Tamil human rights activist and feminist murdered in 1989 by the LTTE. She was one of the founding members of the University Teachers for Human Rights, Jaffna, which during the war, published some of the most hard hitting critiques and exposes of Government as well as LTTE atrocities and human rights violations. Since 2009, Dayapala Thiranagama's insightful articles to Groundviews have been amongst the site's most read and shared.]

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“Politics can be relatively fair in the breathing spaces of history; at its critical turning points there is no other rule possible than the old one, that the end justifies the means” (Arthur Koestler, Darkness at Noon, London, 1940, Page 81).

On 27  December 1989 I arrived in Heathrow along with my two young daughters, aged 9 and 11 years. At  the Immigration Desk the  Officer asked me how long we intended  to stay.I replied ‘a couple of weeks’. My youngest daughter still hanging on to my hand and whispered  to me ‘Thaththa, don’t tell lies we are not going back to Sri Lanka’.  She  of course  was telling the truth. Now after more than two decades I had to return to  Sri Lanka alone, leaving them behind.

There were two main  reasons that made ending my  exile possible: the achievement of my personal  commitment to  my  children which was  to ensure that they were independent,  and the change in Sri Lanka’s political climate, which is the focus of this account.

By the end of 1989  when we fled Sri Lanka we left behind a country gripped by  seemingly insoluble political contradictions. They seemed to require a comprehensive military defeat  of one party over  the other for  the  resolution  of the crisis. The JVP was fighting   the Sri Lankan state which had sought India’s help and the LTTE  had taken on the mighty IPKF(Indian Peace Keeping Force). The JVP had  begun a ‘patriotic war’ accusing  that the Sri Lankan State of  capitulating   to Indian imperialism.They demanded that the people patriotically oppose the  devolution of any power to Tamils  just  as the UPFA at present defines its patriotism in order   to deny the possibility of granting of democratic rights to the    Tamil speaking people.  At the time the JVP had  begun  assassinating all those who supported the devolution of power to Tamils. Their targets  included  the activists and the leaders of the Left parties and groups,  as they were in the forefront of  the campaign in support of the 13^th Amendment, which allowed  for the devolution of power. The JVP  had become  cruel  and ruthless killers of  other political activists in the name of ‘patriotism’ and appeared  to be   knocking on the door of the state power.

I had joined the Vikalpa Kandayama (Alternative Group) and later organised the Movement for Socialism and Democracy uniting all the left groups ,democrats and some  prominent individuals in trade unions.The state also responded with equal cruelty and ruthlessness to the JVP rebellion. There were death squads acting with impunity  and  the roadsides in certain areas became open graves.  The LTTE was not any different from the JVP and they  also assassinated all those who were critical of them. With these murders there were personal sufferings within families  who experienced irreplaceable losses.

Rajani Thiranagama, my wife who was  brutally  gunned down by the Tamil Tigers  merely  because she was a vocal critic of their human rights violations. This was despite the fact that she had  given medical treatment to  leading LTTE cadres at the  very inception of their organisation. Her  assassination  was symbolic of  both the Tamil Tigers’ fascist nature as well as the  bleak future  that    the so called ‘Tamil liberation’ would have brought about in the North and East, if they were not  comprehensively defeated.

Rajani was brutally killed on 21 September 1989. My children lost their most stable primary carer who was their  great  source of love , stability and hope. Despite the fact that I took the full responsibility for their upbringing after her death, I feel that I could not replace fully the love and support  they should have had from their mother. Like them, thousands of children in Sri Lanka  have suffered the loss of their parents leaving them experiencing  a legacy of pain and vulnerability that  has continued long after the war   has finished.

When Rajani was assassinated I had to assure my children that I would be there for them.But unfortunately I could not carry out this  responsibility whilst being in Sri Lanka and having  an  underground  or semi -underground life . Sri Lanka had become very unsafe, as there was not  even  the  slightest regard for human life. All the parties who  fought their armed opponents threw away almost all  internationally accepted  norms  of warfare and when they had  audacity to kill their  unarmed critics or civilians they  also threw away unhesitatingly  all the civilised norms of  resolving  human  and political conflicts. The victims of the armed violence never had a chance to comprehend  or to know the specific charges against them  at the time when the gunman or the suicide  bomber appeared before them. Like many others, Rajani never knew the specific charges against her.  She only knew that the Tigers did not tolerate dissenting  views  and that  these  would be punishable by  death.

By 1989  the Sri Lankan state was in  grave danger of being defeated by the armed  groups  led by the Sinhala extremist JVP. It survived. In all three armed struggles , two of them led by the JVP in 1971 and 1987-89 and the Eelam war  led by the LTTE, the challengers to the state and parliamentary democracy has been  comprehensively defeated by the Sri Lankan state. It is ironic that that the defeat of the reactionary,violent and fascist forces of the JVP and the LTTE has been won at an unbearable cost for Sri Lankan society and its parliamentary democracy. The survival of the state in this fashion has posed difficult questions as well as presenting an opportunity to reform  the Sri Lankan  state political structures.

The  absence of   a commitment  from the current government to meet the democratic aspirations of all our communities and  the  lack of political will  for democratic reforms  appears to be the  main challenge facing Sri Lanka  at present. The massive loss of human life,legacy of the war,its effect on ordinary civilians and the imprint it has left on political activity has reshaped our future.Understanding and addressing what is felt on an individual level as a deep personal loss and what is felt by us collectively as a tragedy is fundamental to the creation of a different   country  and a different  politics,where such events cannot happen again.

President Rajapaksa enjoys a solid political support among the  Sinhalese rural masses, which hither to  no other political leader has been able to  command . His popularity is unassailable and the  recent  local election results show that it is not going to be any easier now  for  his political opponents. This    popularity is undoubtedly  due  to  the political leadership  he was able to provide  in defeating the LTTE separatism. This  will  continue to have  huge political significance in the country for generations to come.  Without the Rajapaksha brothers  at helm of the state power it would not have been  possible to defeat the Tamil Tigers. Whether we would like it or not as long as the West  pursues   the war crime allegations  against the state, Rajapaksa’s popularity is bound to increase,    solidifying  the  support that President Rajapaksa already enjoys. This popularity  is also the main  obstacle for the possibility of ethnic inclusiveness. As long as the TNA continues to apply pressure  through India and West to gain a political solution to the issue of the democratic rights of the Tamils ,it will be seen as political interference in the internal affairs of  Sri Lanka and  thus a largely a  counter productive effort.

There is also an element of this when foreign funded NGO’s campaign for the rights of Tamil people. However, the NGO’s are making a valuable contribution in defending democratic rights, a role which political parties in the opposition are unable to play with credibility as their political lines have been similar to that of the parties in the UPFA.The JVP’s anti-devolutionary violent  political history against the Tamil democratic rights is a case in point.

It is unlikely that the government will be able to dismantle  Sri Lanka’s  parliamentary democracy as some critics would like to suggest but there should not be any complacency in this regard. When the tentacles of family interests spread through state institutions giving up power will not be an easy option.The most difficult situation is that the opposition is meek and feeble and the government would like to have  a free ride at the expense of the political rights of the people. If the government is planning to   dismantle parliamentary  democracy,  it will be the greatest political blunder and the folly of the capitalist class in this country .

A divided opposition  hugely disadvantages ordinary  people.They are in disarray precisely at the time when there is an urgent need for a common political programme to protect basic democratic  and  political rights. Each opposition party is also deeply  divided  within themselves on the issue of political leadership  and/or  political ideology and strategy. The UNP and the JVP are undergoing the most serious and catastrophic  splits  within  their own parties  by weakening their capacity to oppose the government and to change the balance of forces in their favour. The  UPFA political hegemony  appears unbreakable despite  their  shortcomings.    The  government is also  using every possible corrupt incentives  to lure the opposition figures to their side. As long as the opposition is unable to mount a credible and mass base democratic   political challenge to the government, the possibility of  launching a successful  battle  to win for greater  democratic rights  is  still long way off. This has meant that the government have felt able to get away with any anti-democratic act or legislation.In Gramscian  terms this is the ‘effective reality’  at present in the country . Gramsci further sees the need for any political   opposition to ‘transcend beyond’ this ‘effective reality’ and alter the balance of forces in their favour.

The  Mulleriawa incident  exposes  the  continuing thuggish and criminal  behaviour of  some of the government politicians . It is also  a warning that what they are capable of doing to their own  they will feel able to do double fold to those who aim to challenge  them democratically. These are legitimate and genuine issues that need  to be  addressed  by both the opposition and the government. If they fail at this juncture, they will not be forgiven  nor  forgotten by the people. In the deep fault-line of our politics the effect of the breakdown of civil society and political culture can be still felt.The forces of violence ,the climate of fear  and the suffocation of democratic voices that took centre stage in our politics have not yet been defeated despite the end of the war.

I returned to my village, Happawana-Harumalgoda West in Habaraduwa to reside . I had last left as a young man  in 1967 to attend the university. All my memories in growing up here  were of   the poverty and destitution of this village, matched only by   the generosity of its people  when I had difficulties  with the security forces. Growing up in this village made me conscious of  the path of the personal sacrifices  that have to be made   to achieve social justice,political rights  and fairness  for all ethnic communities in our country. The legacy of this village lies deep within my political history and identity. In 1971  the villagers  protected me from the CID and police   as they encamped this village to apprehend me.When I was acquitted  in my trail in1975  they took me home in a huge procession  that filled a two-mile long stretch from the Pilana junction  of  Deniyaya-Akuressa Road to my house.

In Sri Lanka, the journeys we make , both politically and physically are often defined by great  losses.This two mile long route runs through the village that  connects it to  the George Ratnayake Mawatha, which was named after  my comrade and friend George Ratnayake  who was brutally assassinated by  the  JVP in  August 1989. He was the finest human being this village has ever produced. His loss is  felt deeply not least by me.Without him my village is a lonelier place. George was a trade unionist and a Central committee member of the Communist Party . He  stood for the provincial council election  and won in 1989. He was killed by the JVP because he openly supported the devolution of  power to the Tamils. His assassination  stands  a testimony to the brutality of the JVP and their  racist politics of  Sinhalese supremacy. This village  will never forget this heinous crime. The JVP  had  sent  a group of   faceless assassins from outside that day. The day the village buried their finest human being they also defied all the funeral restrictions imposed by the JVP.

This village has changed  since I left it  and will  continue to change at  increasing  speed. It no longer bears the hallmark of destitution and abject  poverty I witnessed as a child. It no longer exists in the same intensity. Both male and female  wage labour has increased here. This I hope  will influence its future political direction and enable it to continue making a political contribution to win and preserve democracy.

In Sri Lanka in  general the politics in the  countryside where  the electoral bulwark of Sinhala Buddhist supremacy reigns supreme  will be pivotal in the coming years of  re-drawing electoral battle grounds. This is partly  due the UPFA regime shifting the political emphasis to its village  based  support  structures and has undertaken infrastructural development hither to unseen in rural areas.Sri Lanka will not be able to resolve its thorny issue of   nationhood unless rural communities support an electoral victory that would resolve the issue of the devolution of power to to the Tamil community.

During these turbulent years of violent politics, the personal losses including having to leave my own country have made a lasting impact on my life.Those  comrades and friends who knew me closely  including my wife Rajani who fell victims to the LTTE, the JVP and  the security forces would have expected  in their last moments that I would continue their  struggle for social justice and democracy. But  I could not evade my personal responsibility towards my children at the time.  Rajani , my  comrades and friends knew  very well the mortal danger that would pose  to any individual in Sri Lankan politics. But they never hesitated. These  murderous  non -state actors eager to justify these crimes  in the name of ‘revolution’ or ‘national liberation’. They have made no  apology for these murders.The  security forces have  not shown any accountability.They have acted with impunity in the name  of ‘democracy’ and ‘national sovereignty’.

It is great to return home.

However, Sri Lanka as a nation has not ended its own political exile even after  wining the separatist war. Unless Sri Lanka  resolves its critical issue of ethnic inclusiveness, she will be in political exile. There will be a day, the masses of this country will drag her out of  this and make us a proud nation where all ethnic communities will enjoy democracy and freedom.

• Rajani commemoration: An absence of actuality
• Blinkered vision of Tamil nationalists and socialists is self-defeating
• The Politics of Diaspora Dissidence: A response to Dayapala Thiranagama
• Reflections on the Underlying Issues that Determine the Outcome of the Election: Who has got the Edge?
• The 18th Amendment: Constitutional Reform as the Consolidation of Power

I probably was one among millions of people in Sri Lanka privileged to receive a SMS from the President, wishing me “a peaceful and a happy New Year”. (A large majority who do not own a cell phone would receive no such wishes from the highest in the land). While many might argue this to be another gimmick of the President to gain popularity at the expense of the exchequer, I was prepared to grant His Excellency, these minor indulgences, since it causes little harm to anyone, and may even give an ego boost to some, to receive a direct wish from the President himself. However I thought if the President had taken the liberty to wish me out of the goodness of his heart, then I felt obliged to return his wishes. I therefore typed a message to the President, and tried sending it using the “Reply” option, only to receive a automated response stating “invalid contact details: President”. It is obvious that the privilege of wishing is only one way when it comes to the President. This is understandable given that if everyone decides to return his wishes, his phone could be clogged by millions of messages (some of which may not be very pleasant to read too!). I thought however to share with Groundviews, the message I had wanted to send to our “Dear Leader” which reads as follows:

“Thank you Sir for your kind wishes. While returning your wishes, I am sure you will realize that you as the President of this country, can do a lot to make these these wishes of “peace and happiness”come true for you and us, the citizens of Sri Lanka, by ensuring that the country is administered with respect for good governance, democracy and above all the rule of law.”

My decision to send this reciprocal message stemmed from the fact that I remember receiving similar messages in 2011, both on Jan 1 and also for the Sinhala & Hindu New Year. But when one looks at the track record of the political administration of the year, what one saw was a trail of mismanagement which brought neither peace nor happiness to many people. When the President wishes his fellow citizens (though some feel he sees them more as his subjects), he should realize, that as the Head of the State with untrammelled powers (JR once said that the only thing the President couldn’t do was make a man a woman and a woman a man!), his actions or inactions can determine the peace and happiness of the citizens of Sri Lanka.

A review of the events in 2011 makes this very clear. The crime rate in the country has soared to unprecedented levels including nearly 500 murders and 1600 rape cases reported being upto November 2011. Kusal Perera in the Sunday leader today, states that there were 241 cases of kidnappings/abductions. Corruption, wastage and abuse are rampant. The bid for the Commonwealth Games spending nearly Rs800m and the Mihin Air losses in the billions are examples.

The education system is a sordid mess and the recent A/level debacle is a case in point. The bungled implementation of the veggie crate policy saw hundreds of farmers and vendors up in arms. Custodial killings resulted in two police stations being attacked after suspects were killed while in custody.

The murder of a much loved doctor in Karandeniya was a dastardly act involving contract killings undertaken by security personnel. (Ironically it is to the military institutions that university students are sent for leadership training.) The recent killing for the first time in the country of a foreign tourist, took the country to its lowest point. There is also the gun duel in broad daylight between rival politicians(a sitting MP and a former MP) from the same party, that ended in one of them being killed and the other seriously injured. Political thuggery is the order of the day with politicians themselves behaving like thugs (even inside the parliament sometimes) with non ever being brought to book.

Recently I attended a wedding reception at the Galle Face and when returning to my vehicle, on a curb adjoining the hotel, I saw a mother sleeping huddled with her two young children because of the cold that is being felt in Colombo these days. It was only the previous week that night races were organized for the rich to flaunt their (often ill gotten) wealth.

Now one could ask me what has this got to do with a kindly President (with probably no precedent) who takes the time to wish the citizens of the country on such celebratory occasions. I have reason to do so, because this situation has arisen not only because of inept criminalised political governance and administration, but also because of political complicity in these lawless acts which brings so much misery and social unease to many people in this country. The deliberate creation of a special breed of sycophants comprising academics, professionals, bureaucrats has also helped consolidate the situation.

In such a situation these wishes are seemingly very hollow and serve only to create a deceptive illusion of benevolence.”

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