Colombo, Constitutional Reform, Human Rights, Peace and Conflict, Politics and Governance


The year 2007 in Sri Lanka began with little hope for a revival of the peace process, and therefore also for constitutional reform, and it ends with similar prospects on either of these issues in 2008. The military conflict has intensified between the government and the LTTE, with either side now seemingly committed to, for the want of a better phrase, a fight unto the death.

For the government, this means an exclusively military policy aimed at the total defeat of the LTTE, including the elimination of its leadership. There is little sign that this policy also involves a political settlement addressing the core political causes of the conflict, entailing fundamental reforms to the constitutional order so as to remove the anomaly of the unitary State in a pluralistic society. It would rather be a victor’s imposition of a piecemeal settlement that may marginally, but more likely may not, go beyond the devolution scheme already found under the Thirteenth Amendment to the Constitution. The argument is that elements of the Thirteenth Amendment that remain unimplemented in the Northern and Eastern Provinces, will after the defeat of LTTE terrorism, be fully implemented with the co-operation of Tamil political groups willing to accept that as a viable settlement for meeting Tamil aspirations. However, the unitary character of the State is non-negotiable, which also therefore means a consolidation of the culture and practice of majoritarian democracy that underpins the unitary State, and the assertion of the predominance of the Sinhala-Buddhist nation within Sri Lanka’s polity.

The international community as well as most avowedly pro-peace Sri Lankans would be happy to go along with a policy that involved a military strategy against the LTTE, as long as there was also the indication that the administration was serious about a post-conflict political and constitutional settlement involving substantial devolution and power-sharing. The problem with this policy, however, is that it was tried out, in what was then known as the ‘war for peace’ strategy, for almost ten years without any tangible result with regard to either a military victory against the LTTE or successful entrenchment of a constitutional settlement without the LTTE by the Chandrika Kumaratunga government. It was in fact the military stalemate that resulted that brought about a UNP government, a ceasefire agreement, a series of talks of limited success bar the historic agreement between the government and the LTTE at Oslo in December 2003 to explore a federal settlement guaranteeing internal self-determination for the Tamil people.

Apologists for the government would retort however that President Kumaratunga’s failure to achieve military success was more to do with a lack of strong political leadership and direction in the war effort rather than the inability of the Sri Lankan military to defeat the LTTE on the battlefield. They would contend that this is the key difference and principal strength of the current government.

The key weakness of this approach however is that it is wholly ahistorical to believe that an enduring peace can come through exclusively military means and through the numerically larger nationalism in control of the apparatus of the State dictating what may or may not be granted to assuage the demands of the minorities. Tamil nationalism is demonstrably stronger and more resilient than that, and it is precisely the type of hegemonic Sinhala-Buddhist nationalism refusing to share State power meaningfully with the minorities that would ensure its survival even if the LTTE is annihilated in the manner envisaged by the government. In addition to this, the government’s unprincipled and undisciplined use of paramilitaries coupled with a clearly hegemonic programme of settling Sinhala people in Muslim lands in the Eastern Province has had the perceptible effect of pressurising the Muslims to turn against the government if not yet the State in the recent past. While radicalisation of the Eastern Muslims to resort to violence is a great danger, there is no doubt at all that the government’s behaviour is in the longer term wholly counterproductive to ensuring the subscription of that community to a future settlement. In this, the pattern follows exactly the kind of State behaviour that led to the eclipse of Tamil federalists and the rise of Tamil youth militancy, secessionism, and the extra-institutionalisation of conflict in the 1970s and 80s.

For the LTTE on the other hand, this means that the military efforts of the State, perhaps unprecedented in its ferocity and singularity of purpose, has to be resisted by any means and any cost, to ensure both its survival as well as the Tamil nationalist project. If it loses, it is not only its own survival that is at stake including the lives of its leadership, but also the fundamental reversal of the Tamil nationalist project for at least a generation. Given the government’s ideological programme of ethnic hegemony, it is a matter of historical repetition that the Tamil nationalist project will once again revive at some point, but in the medium term, it would have been defeated in the clash of nationalisms that has been the Sri Lankan post-independence story.

It is in this sombre background of the broader military and political dynamics that the year must be reviewed. This is not least for the reason that they form a contextual bearing on the way the very culture of government has evolved during the past year, marking a significant expansion of the role of the executive presidency and increasing authoritarianism, the concomitant deterioration in the respect for fundamental human rights, the relegation of Parliament to a farcical sideshow of patronage politics and impotence to reassert any sense of constitutional balance between it and the presidency, and a muscular consolidation of the already ethnicised nature of the practice of democracy and conduct of government that has led to the failure of the Sri Lankan State as a politically viable entity capable of managing ethnic, religious and cultural diversity in a liberal democratic manner.

As a measure primarily of keeping the international community happy about the government’s sincerity with regard to a political settlement to the conflict, the President in 2006 summoned an All-Party Conference to discuss the forging of a ‘Southern Consensus’ on constitutional reform. The conference appointed a smaller All Party Representative Committee (APRC) to report back to it, under the chairmanship of Minister Tissa Vitharana, a senior leftist politician and member of the President’s ruling coalition. The APRC in turn appointed an Experts Panel to recommend a possible constitutional framework. The Experts Panel comprised senior lawyers and academics representing the Sinhala nationalist and unitarian perspective on the one hand, and others associated with a more pro-devolution and progressive political outlook. The Panel divided along these fundamental perspectives and produced two separate reports to the APRC at the end of 2006. Minister Tissa Vitharana himself is associated with the pro-devolution discourse and he in turn produced a consensus document between the two reports of the experts for discussion by the APRC which was heavily weighted in favour of the devolutionist approach, although falling far short of the asymmetrical federalism that would need to be the basis of a constitutional settlement that can address Tamil secessionism in any meaningful way. His efforts have moreover been undermined by the military programme of the government and accompanying public rhetoric, which has been fundamentally Sinhala-Buddhist nationalist, and begging questions as to its commitment to accept any compromise Vitharana might produce, as well as its sincerity of purpose with regard to addressing the grievances and aspirations of the minorities.

This was most tellingly registered with the submission of the proposals of the President’s own Sri Lanka Freedom Party (SLFP). These proposals were woefully inadequate as a response to a constitutional accommodation of Tamil and minority concerns. In particular, they regressed even from the provincial level devolution contemplated by the Thirteenth Amendment of 1987 by proposing a limited form of administrative decentralisation to the much smaller unit of the district. In many other respects also, the SLFP proposals were incoherent and incomplete, reflecting a constitutional mindset firmly based on the unitary State and majoritarianism. Whether this was a matter of basic insensitivity to minority concerns arising out of a more immediate concern to keep the ruling coalition of Sinhala nationalists (especially the JVP and the JHU) intact, or an absolute lack of understanding about constitutional experiences elsewhere in dealing with complex power-sharing conflicts, or just a straightforward and even sincere reflection of the President’s own worldview remains to be seen, although it may be that that the proposals are a reflection of a combination of all these factors.

For these reasons, the entire APRC process has been marred from the outset by a basic problem of credibility and legitimacy, and not least because of the memories of how the device of the All-Party Conference been employed before in the 1980s by the J. R. Jayewardene government as a means of stalling progress towards devolution under Indian pressure.

In indirect response to these developments, the LTTE used the fifth anniversary of the now defunct ceasefire agreement in February 2007 to release a statement which among other issues also made reference to the nature of the constitutional arrangements for the expression of their aspirations. Locating its political demand on the right to self-determination for a people and a territory expressed in common Article 1 of the ICCPR and the ICESCR, it invoked the Machakos Protocol from the Sudan peace process and the Ahtisari proposals for Kosovo to clearly ground a case for graduated secession. These are framework ideas no doubt, but marks the return to secessionism from the internal self-determination claim that was articulated for example in the Oslo Communiqué of December 2003 during the peace process with the Ranil Wickremasinghe government. The statement is also noteworthy for the reason that the LTTE appears to have studied its situation in comparative context, and speaking directly to the international community rather than to the Sri Lankan State, indicated what is possible in addressing Tamil aspirations against a recalcitrant State which is unwilling or incapable of addressing such aspirations. In the willingness to engage international law and comparative constitutional models, it signifies a more sophisticated approach than had characterised the older LTTE’s ideological underpinnings in the Stalinist settlement of the self-determination question. It would be too sanguine, however, to hope that the LTTE has shifted its ideological perspectives to the liberal democratic discourse, because ethno-nationalism defines, and in violent opposition to an ethno-nationalist State would continue to define, its very existence.

How the escalation of conflict has consolidated ethno-nationalism as the defining structural characteristic of Sri Lankan democracy was also apparent in the seeming abandonment of the term ‘federal’ if not its substance by the main Opposition United National Party (UNP) in September 2007. The UNP decided that federalism was now a political and electoral liability, to which it had commendably been committed since 2003, and on which commitment it had stated it would not oppose a proposed solution by the APRC if this was federal character. It must also however be stated that in the same statement, the UNP outlined the rough normative parameters of an acceptable power-sharing settlement in terms that were essentially federalist. Nonetheless, this was a recognition of the defeat of federalism as a political and constitutional idea of conflict resolution among the Southern constituency, and the success of the President and his coalition in returning the battlefield of electoral competition to the old nationalist paradigm in which federalism is seen as an unacceptable dilution of State sovereignty leading inevitably to a Tamil separation.

This realignment of democratic politics, in addition to the institutionalisation of ethno-nationalism and hyper-patriotism, has also seen the expansion of the role of the executive to pervade every aspect of government. While it is true that the Constitution of 1978 provides the legal setting for an over-mighty executive and lacks institutional balance, it is also the case that it is a key element of the Sinhala-Buddhist nationalist worldview that its notion of government is of a patronage-allocating monarchy whose principal responsibility is the defence of the race and the faith. Consequentially, authoritarianism enjoys not merely tolerance but also democratic legitimacy. In other words, as long as the President is seen to be fighting on behalf of and defending the interests of the Sinhala-Buddhist majority, he will win elections and enjoy democratic legitimacy.

This is how human rights violations especially of non-Sinhalese, a disregard for liberal democratic institutions and practices that induce restraints on the governmental exercise of power, the breathtakingly transparent use of paramilitaries for extra-judicial killings, extortion and abductions, do not attract any repercussions for the government as a matter of democratic politics. Accordingly, the government has enacted Emergency Regulations that are disproportionate and illiberal, attempted to evict en masse Tamils of North-eastern origin temporarily resident in Colombo, used paramilitaries to abduct relatives of Tamil parliamentarians so as to intimidate them into voting for the government’s budget proposals, and does nothing about a culture of violence, impunity and hate speech that has become the life-threatening norm for newspapers, journalists, academics and civil society activists who have the temerity to oppose its nationalism and military programme as realistic means of bringing about a dignified and honourable peace for all the peoples of Sri Lanka.

Perhaps the reassertion of independence by the Supreme Court at the suit of civil society organisations and individuals, most notably in staying the eviction of Tamils from Colombo and ending the permanent checkpoints in the capital and certain types of arbitrary detentions (although certainly not all) for want of legal authority and in upholding constitutionally protected fundamental rights is cause for some comfort that a rampant government may still be held in check in respect of some of its more egregious acts. Likewise Parliament’s Committee on Public Enterprises and the Committee on Public Accounts have both published highly critical reports exposing malpractice and corruption. However, nothing has been done by the government to implement the Committees’ recommendations, and there seems to be no public expectation that these are matters of importance even though involving massive amounts of public money. The chairmen of both Committees have crossed over to the Opposition in what are under the circumstances acts of not inconsiderable personal integrity and courage.

Notwithstanding that, what has become patently clear is that the executive presidency has now become a Cromwellian institution of authoritarianism as well as ethnic exclusivism, and Parliament can do very little about it. The dramatic crossovers to and from the government benches during the parliamentary stages of the 2007 budget clearly demonstrated both the massive scale of corruption that has become entrenched in Sri Lankan parliamentary democracy, as well as the government’s wholly unrestrained willingness to use both bribery and physical intimidation to get its budget passed. Such abuse and debilitation of democratic institutions for partisan advantage, particularly in the open and unapologetic manner it was done, is sure to set devastating precedents and have extremely harmful consequences for the future of democracy and its institutions in Sri Lanka.

Thus 2007 ends in Sri Lanka on an unpropitious note, in which the ascendancy and consolidation of nationalism as the main feature of democratic politics has not only led the country into violence, armed conflict and human rights abuses, but also institutionalised a culture and discourse of government whose values are fundamentally at odds with liberal democracy. Sri Lanka may be the oldest formal democracy in the region, but its democracy has always been flawed. This has been due to the dominance of the legal notions of the unitary State and majoritarian democracy as the only legitimate form of constitutional organisation and validation of governmental decision-making, and which have in turn been given potent political and discursive animation by the Sinhala-Buddhist nationalism of the majority community in a pluralistic polity. What we are now seeing is thus a continuation of those dynamics, albeit in a more extremist form than before, and that this time it may perhaps also mark the war for the final solution between these two nationalisms. This will mean human suffering on a massive scale in a country already ravaged by thirty years of civil conflict, and tragically, it also means that the prospects for a durable and inclusive peace secured by a constitutional settlement addressing the aspirations of all Sri Lankans may have been retarded by at least another generation.