Dr. Nihal Jayawickrema

(Continued from last week)

If the health of the nation has been seriously compromised, it is principally due to the failure of its political leadership, all of whom represent, or have represented predominantly Sinhalese electorates. For them, the constituency is essentially Sinhalese in race, Buddhist in religion, and Mahawamsa in mindset. Under pressure from the Tamil political leadership or faced with the threat of satyagraha or civil disobedience campaigns, or occasionally when driven to seek the support of the Tamil members of parliament to form an administration, successive Sinhalese political parties have entered into formal or informal agreements with representatives of the Tamil people. These were rarely honoured. The responses were determined purely by political expediency.

For example, in 1957, the Bandaranaike – Chelvanayakam Pact provided for the establishment of Regional Councils and for the use of Tamil in the northern and eastern provinces. Nine months later, under pressure from the Eksath Bhikku Peramuna and from the UNP led by J.R. Jayewardene which organized a 72-mile march from Colombo to the Temple of the Tooth “to save the Sinhala race”, S.W.R.D. Bandaranaike announced that the pact which bore his signature as Prime Minister was incapable of being implemented.

In 1958, Mr Bandaranaike enacted the Tamil Language (Special Provisions) Act but failed in his lifetime to make the regulations which would have made that law operative. When in 1966, Dudley Senanayake attempted to make these regulations, Opposition parties led by Mrs Bandaranaike demonstrated against that move on the streets of Colombo and took an oath at the statue of Vihara Maha Devi to oppose the division of the country. Dudley Senanayake, fortified by a state of emergency, proceeded to make the regulations, but did not implement them in the remaining four years of his government.

In 1965, Dudley Senanayake signed an agreement with S.J.V. Chelvanayakam in which he promised to establish District Councils. A Bill for this purpose was prepared but was never introduced in Parliament. Meanwhile, a White Paper on the subject, promising less than what Mr Bandaranaike had offered in 1957, was publicly and ceremonially burnt on the steps of parliament building by members of the SLFP and other Opposition parties.

In 1970, Mrs Bandaranaike invited the Federal Party members to the Constituent Assembly to help draft a new constitution which would “serve to build a nation ever more strongly consciousness of its oneness amidst the diversity imposed upon it by history”. When they responded positively and suggested that that goal be reached through federalism, they were ruled out of order and left with no alternative but to withdraw from the exercise.

In 1977, the UNP manifesto promised to summon an All-Party Conference to consider the problems of non-Sinhala speaking people, but conveniently forgot that promise once the general election was won, and it took several years of terrorist activity and military reprisals, hundreds of deaths, the burning of the Jaffna public library, and the events of July 1983, to convince the government that that promise ought to be kept. When that All-Party Conference eventually met (but without the SLFP leader on whom civil disabilities had been imposed and expelled from parliament), the much-maligned Annexure C, which the Tamil political leadership claimed contained the agenda they had been invited to discuss, continued to lie on the table in the manner of an illegitimate child abandoned by its mother.

Meanwhile, the Sixth Amendment to the Constitution, which required all members of parliament to take a loyalty oath to an indivisible Sri Lanka, which the TULF refused to do, resulted in the moderate political wing of the Tamil community losing their political influence and becoming irrelevant in any negotiations. That, in brief and in outline, is a case study of the failure of political leadership.

HEALING THE NATION
Transitional justice

The problem of healing the nation today is two-fold. On the one hand, there is the issue of governance which our political leaders have failed to resolve for nearly 60 years. On the other hand, there is the issue of justice, reparation, and reconciliation, which has been brought to the fore through the actions of a succession of Presidents who set out to resolve a political and human rights problem, conveniently dubbed “the terrorist problem”, through the application of military firepower. It was President Jayewardene who, in October 1979, directed the Army Commander to proceed to the north with absolute authority to eliminate by any means whatsoever all forms of terrorism he may encounter; the final solution was to be achieved by Christmas of that year. For decades thereafter, a daily sacrificial offering was made of thousands of idealistic young Sinhalese men in the prime of their lives who journeyed to the north and the east in the confident hope that before they laid down their own lives, they would be able to kill a few equally idealistic young Tamil men and women, and thereby make this thrice blessed isle a safer, happier, and more righteous place for all of us to live in.

The poet John Donne reminds us that ‘No man is an island, entire of itself. Every man is piece of the continent, a part of the main’. How a nation treats its nationals is no longer a matter exclusively within its own concern. There are now norms and standards which form part of a growing body of international law. Therefore, a government’s behaviour towards its own nationals is now regulated by international treaties. In 1981, the Government of Sri Lanka brought itself within the jurisdiction of international human rights law when it subscribed to, and ratified, the two international human rights covenants.

Sri Lanka is believed to have one of the highest rates of reported cases of enforced disappearances in the world, and yet no tangible steps have been taken for several years even in respect of the much-publicised Ekneligoda disappearance. Over 300 political killings in 2005, and over 700 extra-judicial executions in the next two years have been recorded, with no action being taken to investigate them. The high-profile killings of Lakshman Kadirgamar in August 2005 in circumstances that are still classified and shrouded in mystery; of Joseph Pararajasingham at a Christmas Eve church service in Batticaloa in 2005; of five Tamil university students in Trincomalee in January 2006; of 17 ACF workers in Muttur in August 2006; and of Lasantha Wickrematunge within a high security zone in January 2009; have all remained uninvestigated or not effectively investigated. Some military personnel have been charged with the killing of Nadarajah Raviraj in Colombo in November 2006, but has it been ascertained why they committed that crime? The Rajapaksa Government clearly demonstrated that it lacked the will or the desire to hold persons who have perpetrated such serious crimes accountable for their actions. Even if the present Government wishes to reverse this culture of impunity, does it have at its disposal the expertise to successfully investigate several thousand cases of enforced disappearance and extra-judicial execution?

In 2015, the Human Rights Council published the findings of the investigation on Sri Lanka conducted by three distinguished legal experts, the former President of Finland, the former Governor-General of New Zealand and the former President of the Human Rights Commission of Pakistan. That commission had gathered information of unlawful killings of civilians by security forces and paramilitary groups; extrajudicial execution of identified LTTE cadres and unidentified individuals at the very end of the fighting, including those who were known to have surrendered to the Sri Lankan military; arbitrary arrests and abductions; enforced disappearances; torture and other forms of cruel, inhuman and degrading treatment; sexual and gender-based violence; forced recruitment of children for use in hostilities; denial of humanitarian assistance; and the deprivation of liberty of internally displaced persons.

The government has announced its intention to establish a Truth Commission, which is a healing process that offers victims and perpetrators an opportunity to outline details of past crimes. It is a mechanism that has been attempted, with some degree of success, in South Africa and in several Latin American countries such as Argentina, Chile, El Salvador and Guatemala. I once witnessed the proceedings of a truth commission in Nigeria. It is based on the Christian concept of confession. Whether it would be appropriate for Sri Lanka is an open question. The government is reportedly taking steps to provide restitution, compensation, and rehabilitation. However, a pre-condition for reconciliation is accountability. Without accountability, there can be no reconciliation in any society.

The UN High Commissioner for Human Rights recommended the establishment of a hybrid court which is a unique element in the human rights-based approach to transitional justice in a post-conflict situation. By including international judges, prosecutors, lawyers and investigators, a hybrid court is designed to deal with those who bear the greatest responsibility for serious crimes arising from or during the conflict, such as war crimes or crimes against humanity, including sexual crimes and crimes against children. President Sirisena has repeatedly asserted that, under no circumstances, will he agree to the participation of foreigners in the accountability process in Sri Lanka. He has claimed that Sri Lanka has an independent judiciary which is quite capable of addressing the issues of accountability without any foreign assistance. It is perhaps time that his advisers briefed him on the real position.

In many significant respects, the Sri Lankan legal and judicial system has, in the past few decades, failed its multi-ethnic and multi-religious population, and has demonstrated that it lacks the will and the capacity to address such serious crimes. War Crimes and Crimes against Humanity, as well as Enforced Disappearances, have not been criminalized in Sri Lanka. Neither the International Covenant on Civil and Political Rights (which the Jayewardene Government acceded to) and its Optional Protocol (which the Kumaratunge Government ratified), nor the International Covenant on Economic, Social and Cultural Rights, have yet been incorporated in our law. No effective mechanism has yet been established for the protection of witnesses and victims of crime. In 2006, Chief Justice Sarath Silva suspended the application to Sri Lanka of international human rights treaties, holding that their ratification was an infringement of the Constitution. His judgment was described by a world-renowned jurist as “an example of judicial waywardness” or “judicial eccentricity”. Another referred to it as “Alice in Wonderland reasoning”. Therefore, we lack the legal framework within which accountability can be established for such crimes. The process of remedying that deficiency may benefit from expertise, whether international or otherwise.

The judicial culture of the Supreme Court, especially evident in the past decade, has been one of extreme deference to the presidential executive. Whenever fundamental rights were invoked, the court, composed as it was of judges appointed by President Rajapaksa, often from among his contemporaries at Law College, would, more often than not, capitulate to executive assertions of state security. Political opponents of the previous government and members of ethnic minorities, and indeed civil society, have rarely, if ever, obtained any relief. The judgments of the Supreme Court, especially in matters affecting individual rights, reveal an astounding ignorance or unfamiliarity with contemporary developments in the law in other jurisdictions.

The Attorney-General’s Department, which remained embedded in the Presidential Secretariat from 2011 to 2015, did not possess the capacity or the inclination to view, with independence and impartiality, the crimes allegedly committed with the knowledge or connivance of those at the highest levels of the then government. Instead, its senior officers travelled annually to Geneva to deny before the international community that any such crimes had ever been committed. An Attorney General himself uttered what was later proved to be a lie regarding a disappeared journalist. Is it being seriously suggested that these same officers should now be entrusted with the task of presenting the evidence which the OHCHR claims it has, and which they have so strenuously repudiated for decades? The apparent indifference with which investigations that commenced after the change of government are being handled by those in the commanding heights of that department suggests that the culture in that department remains the same.

Sri Lanka’s inability to conduct credible investigations through quasi-judicial bodies has also been demonstrated by the performance of a succession of commissions of inquiry headed by retired judicial officers. The Udalagama Commission lost its credibility very early in its proceedings. The Paranagama Commission keeps rolling along, from month to month, year to year, signifying the urgency it attaches to Enforced Disappearances. The performance of the previous Human Rights Commission, which had the duty to investigate infringements of fundamental rights, was so abysmal that the United Nations downgraded its status for lack of balance and objectivity.

The question which the government will need to address is whether it has, with the resources available to it, the capacity to effectively investigate, prosecute and try the serious allegations referred to in the report of the OHCHR investigation on Sri Lanka, including war crimes and crimes against humanity. To admit that we cannot undertake these tasks alone is not an admission of weakness. On the contrary, it will be a sincere and genuine commitment to achieving the objective of accountability on behalf of those who laid down their lives and the families who continue to live in grief. In respect of war crimes and crimes against humanity, the expertise of lawyers skilled in dealing with such crimes, military analysts, crime scene investigators, trauma experts, psychological counsellors, and a host of others who are competent to address issues of victim needs and rights, witness preparation and protection, are essential, and international assistance in that regard ought to be welcomed.

Power sharing at the centre

One inescapable fact that emerges from the post-Independence history of Sri Lanka is that the Sinhalese political leadership is unwilling to share political power with the Tamil political leadership. For the past fifty years, since the emergence of the Federal Party, negotiations between Sinhalese and Tamil political leaders have focused on the unit of devolution. Should it be district, provincial or regional? Fear has been created in Sinhalese minds that any such form of devolution would eventually lead to a separate state. In this connection, I wish to refer to two principles of international human rights law which now regulate the relationship between the government and the different ethnic groups living in Sri Lanka. These are the principles of non-discrimination and self-determination.

The principle of non-discrimination means that as between the citizens of Sri Lanka, neither law nor executive action may discriminate on the basis of race, religion, language, sex, political or other opinion, national or social origin, birth or other status. The principle of self-determination is contained in both human rights covenants to which the Government of Sri Lanka has committed itself. It means that cohesive ethnic groups have the right to choose for themselves a form of political organization, and through such organization to freely pursue their economic, social, and cultural development. That choice may take one of several forms. It could be independence as a separate state; or association with other ethnic groups in a federal state; or autonomy or assimilation in a unitary state. However, if the ethnic group concerned already has a home within territorial boundaries of a sovereign and independent state, (which the Tamil community has); and if that state has a government which is representative of all the people irrespective of race, (which the Sri Lankan government is not}; and if that government respects the twin principles of non-discrimination and self-determination, (which Sri Lankan governments have not}; the choice of that ethic group does not extend to the creation of a separate state.

Therefore, it seems to me that, whatever agreement may be reached regarding governance at the periphery, it is vital and fundamental that there should be power sharing at the centre. This is not a matter that should be left for negotiation at the conclusion of a general election. That has led in the past to the inclusion of Colombo-based token Tamils in the Cabinet, such as C. Kumarasuriar and Lakshman Kadirgamar, who represented none but themselves. Power sharing at the centre is a requirement that should be incorporated in the Constitution. Whichever political party forms the government, it should be mandatory for the different ethnic groups to be represented in the Cabinet, at least in proportion to the number of such members elected to Parliament. Thereby, the minority communities will be constitutionally guaranteed not of token but of genuine representation, both in the legislature and in the government. Policy formation will thereafter be by consensus of the different ethnic groups, which is how it should be in a multi-ethnic, multi-religious and multi-linguistic country as Sri Lanka.

Entering the global community

After almost 60 years of isolationist policies, it is time that we entered the global community. We cannot do that if we are unable to communicate with others outside our island home. Lee Kuan Yew had the foresight to retain the use of the English language in Singapore, as did many of Africa’s national leaders. At a meeting in Thailand last year, the Thai Foreign Secretary informed me that his country had begun using English as the medium of instruction in schools. When I expressed some surprise, he explained that Thailand did not want to send its citizens out as menial workers. By retaining, or adopting, English – now the acknowledged international language, these countries have ensured that their peoples can communicate with the world beyond their geographical boundaries and acquire the new knowledge that now emerges as rapidly as the old is debunked and equip themselves to serve the global community in capacities other than as domestic helpers and semi-skilled workers. I think it would be a reality check for our politicians if they were to ask the youth of this country which language they wish to be educated in. Language is not only a mode of communication; it is also the medium through which knowledge is acquired. It is unfortunate, but true, that Sinhala does not serve either purpose adequately.

Conclusion

I do not wish to conclude my presentation by leaving the impression that Sri Lanka has been devoid of any manifestation of leadership. Of course, not. In the 1920s, A.E. Goonesinha provided the leadership for the working people to organize themselves, and for the youth to agitate for the immediate relief of social problems. In the 1930s, a group of young Ceylonese intellectuals on their return from universities abroad, influenced deeply by the ideas of Karl Marx – Dr S.A. Wickremasinghe, Dr N.M. Perera, Dr Colvin R de Silva, Leslie Goonewardene and Philip Gunewardene – provided the leadership to the formation of the left movement in Ceylon. In the 1940s, D.S. Senanayake and Sir Oliver Goonetilleke provided the leadership to the negotiations with the British Government that secured self-government for Ceylon without shedding a single drop of blood. On the long night of January 27, 1962, Felix Dias Bandaranaike, almost single-handedly, saved not only a great many lives, but also the social and political fabric of our society by aborting the first ever attempt to overthrow the lawfully established government of this country.

In April 1971, barely two weeks into the JVP insurgency, with the military ready to launch an offensive, Mrs Bandaranaike called upon combatants to surrender at check points manned by public servants, guaranteeing them safe conduct, an appeal to which nearly 10,000 young persons responded. In 1978, J.R. Jayewardene gave a whole new direction to our economy, lifting it out of the shackles of outmoded socialism. In 2002, Ranil Wickremasinghe had the courage and the vision to enter into a ceasefire agreement with the LTTE to bring an end to the hostilities as a means to establishing a positive atmosphere in which steps towards negotiations on a lasting solution could be taken. These were all examples of leadership.

In conclusion, may I adopt and adapt the words of the present Chief Justice of Kenya in reminding ourselves that we must fully discharge our obligations to each other as individuals who are part of a common polity.

These obligations start from the basic requirements: respect for each other as individuals, as well as respect for communities and other identity groups. It is socially obnoxious, politically reckless, and economically ignorant to cheapen the presence of any community in this country. It is only the weak-minded people incapable of comprehending the origins of the modern state, its philosophy, its instruments, and its edicts, that resort to such approaches in managing the expression of disagreement. Just as a fish that grows in a pond may consider itself the king of the sea until it is introduced into the ocean, we too must also awaken to the reality that our ethnic and sectarian interests may only matter if we are disconnected from the rest of the world. Unless we all recognize that we are a confederation of cultures, languages and interests, we shall never be able to cultivate the sensitivity and respect for one another that is necessary to hold us together. We might never live up to true greatness as a member of the community of nations because we overstayed our welcome in the pond when the ocean beckoned. The things that are seen to divide us – ethnicity, religion, race, class, clan, region, occupation, sexual identity, generation, disability – are also the raw materials needed to create the mosaic of one nation.

(Concluded)