The Search for a Political Solution Five Years

after the War

Ph
oto via Ministry of Mass Media and Information
by Kalana Senaratne
- on 05/11/2014
The sovereignty of Sri Lanka is very much
intact. And we want it to remain intact. We are Sri Lankans And we dont want Sri
Lankas sovereignty to be impacted upon.
R. Sampanthan (Leader of the TNA), Al-Jazeera, 26 March 2014
Sri Lankas post-war politics has come to be defined by her inability to address two
distinct, but inter-related, issues concerning its constituent peoples, especially the
Tamil people. The first is that of accountability; the second, and the more enduring
one, being that of a political solution to the national question. These are two issues
that can make or break Sri Lanka.
Accountability
The question of accountability which is a pressing and controversial one is a question
that the present government is both unwilling and unable to address. Partly as a result
of the governments intransigence, we now have the 2014 UNHRC Resolution
(HRC/25/L.1/Rev.1) which, inter alia, calls upon the Office of the High Commissioner
to undertake a comprehensive investigation into alleged abuses committed by both
parties to the conflict, the Sri Lankan Armed Forces and the LTTE.
The government as well as the state (in its broadest sense) is constrained in many
ways, constitutionally and ideologically, and cannot be expected to address the issue
of accountability in a meaningful way any time in the near future.
The constitutional and legal impediments the absence of relatively independent
institutions (e.g. a judicial system that takes issues of accountability seriously, a
credible human rights commission) and the problematic constitutional framework (i.e.
the 18th Amendment, for example) which only helps to ensure the absence of credible
institutions/persons to address the problem are well known. But also, the dominant
discourse that has been promoted over the past few years about the war its
purpose, its consequences, its victors and losers, its heroes is one which leaves no
practical space for the government to initiate a serious and credible domestic inquiry
(even into selected cases). It is in a sense a trap that the government has fallen into,
but one that it wittingly created. Much of this would explain why a political leadership
which established, during war-time, a Commission of Inquiry (i.e. the Udalagama
Commission) along with an International Independent Group of Eminent Persons
(IIGEP) to observe the process, cannot establish a more genuine mechanism, post-
war. And if it failed during war-time, it was never going to work after the war, especially
after a comprehensive victory.
But there is a far more serious ideological concern underlying the inability to
investigate, which has to do with the dominant manner in which the Sinhala people
view the Tamil people. For principally, the Sinhala psyche is trained to view the Tamil
people as an alien community, originating in and belonging to South India. This is
what makes Mr. Udaya Gammanpila (of the Jathika Hela Urumaya) proclaim that the
Tamils are just a minority here, not an ethnic nationality or a nation [see interview with
Udaya Gammanpila in Asanga Welikala (ed.), The Sri Lankan Republic at 40, Vol.
II (2012)]. Such an understanding, when developed and nurtured over a long period of
time, creates a mindset which is more inclined to reject, rather than accept, the
demand for accountability coming from the Tamil community. While this is an attitude
which applies to both sides of the divide, the war only intensified this polarization and
perspective.
In practical terms, what this polarization and psyche leads to is a culture wherein
accommodating the demands for something like accountability is not the popular thing
to do. This explains why it is more convenient to call for international investigations
either into the actions of the LTTE (which even the JHU does) or into actions which
result in the death of Sinhala people; with the problem here being not the international
character of the investigation, but rather what that process seeks to investigate. This
explains why, for example, a party such as the United National Party (UNP) which
tends to promote in the most diplomatic terms the need for a domestic inquiry, can
nevertheless rush to call for an international investigation when the Sinhala people at
Weliweriya are attacked by the same Armed Forces (for e.g., see UNP demands
international probe into Weliweriya clash, Adaderana, 6 August 2013). In broad terms,
this is our own version of hypocrisy which is gallantly exhibited by the US, for example,
which while demanding international accountability for other countries, remains the
principal enemy of international accountability mechanisms, such as the ICC.
Therefore, the inability to address the problem of accountability is only, partly, the
governments problem. Also, this failure should not be explained purely as a
legal/constitutional problem. There are far more serious historical and ideological
concerns underlying this inability; which, given the countrys history of addressing
issues of accountability, is not a novel phenomenon.
Here, one could wonder whether the Lessons Learnt and Reconciliation Commission
(LLRC) provides a way out of this impasse; for it has been a popular view, that the
minimum that could be done is to carry out an inquiry at least into the incidents that
the LLRC lists out in its report. But a closer, and perhaps a less-generous, reading of
the LLRC report, I argue, would only make you question: why investigate? And
President Mahinda Rajapaksa cannot be faulted for asking that question.
This is because there are two broad weaknesses in the most controversial chapter in
the LLRC report (i.e. Chapter 4 which deals with Humanitarian Law Issues).
The first is that the overarching narrative of the LLRC tends to promote the view that
investigations, where necessary, ought to be held to clear the good name of the Army
and the Armed Forces (e.g. para 4.319). Apart from the fact that there is the
appearance of bias here (and a Presidential Commission cannot be seen to be issuing
a good character certificate for any single party), to approach the complex and
uncomfortable process of investigations with the avowed intention of clearing the good
name of a particular party was always going to be a non-starter. Perhaps the LLRC felt
that this was the best and the most diplomatic way of selling the idea that
investigations are necessary; but it seems that the LLRC only confirmed the fears and
cynicism of its critics.
The second limitation (which flows from the above) is the following: that, apart from the
call for an investigation into the Channel 4 clips, almost in all the incidents that the
LLRC list out as requiring further scrutiny i.e. the 5 incidents in para 4.286, and the 3
incidents in para 4.359 it is the LTTE that appears to be implicated. A careful reading
of how these instances have been narrated in the LLRC does not inspire one to
investigate, but rather to believe that it is the LTTE which is actually the culprit here .
[ And this overarching approach is well summed up in para 9.36]. This, perhaps, is one
reason which makes even India endorse the popular distinction expressed in the
UNHRC resolutions, between the constructive recommendations of the LLRC and
those which are considered inadequate.
In sum, then, international pressure is not going to recede over the next few years.
The situation can only worsen, which in turn further shrinks democratic space to
demand accountability; which is already evidenced by the crackdown (during the
Geneva sessions) on human rights activists, and the banning of overseas Tamil
diaspora groups. And the only ways in which this situation can be overturned is either
through a change of government, or a radical shift in how the state
apparatus/government and the majority people perceive the Tamil community and its
demand for accountability. Without the latter, however, the former remains an
inadequate answer too.
Political Solution
There is, however, another way in which pressure on the issue of accountability can
be minimized. That is through the adoption of a genuine political solution to the ethnic
question.
Most admirably, this view is sought to be promoted by Mr. R. Sampanthan, the leader
of the Tamil National Alliance (TNA); who has reportedly pointed out that the way to
avoid increasing pressure being exerted, is to adopt a credible political solution to the
conflict which gives greater autonomy to the Tamils within a united country that gives
greater autonomy to the Tamil people (TNA insists Tamils want autonomy, Colombo
Gazette, 20 April 2014). This would ideally be one which culminates in a federal form
of governance structure, within a united country; after all, a federal union, as Mr. C.
Vanniasingham of the Federal Party once argued, is the least that the Tamil-speaking
people can demand [as quoted in AJ Wilsons SJV Chelvanayakam and the Crisis of
Sri Lankan Tamil Nationalism, 1947-1977(1994)], which is perhaps more true today.
While useful proposals have been made in this regard over a long period of time, one
of the most useful and one which I subscribe to is contained in the APRC-Majority
A Report; for it is a report which in recent times best recognizes the equality of the
Tamil people (without translating that equality into con-federalism), and their self-
determination (without transforming that idea into secessionism).
But the task of adoption a political solution that Mr. Sampanthan desires for the Tamil
people and the greater benefit of Sri Lanka, is also the most challenging. A few
reasons, briefly stated, are as follows:
Firstly, it is necessary to realize that the war was not fought by the Sinhala-Buddhist
nationalist community to grant to the Tamil people a political solution that affords
greater Tamil autonomy. While the war was indeed supported by many for different
reasons, the dominant ideologues within the pro-war camp who were steadfastly
cultivating the idea (over years and decades) that the LTTE should and can be
defeated militarily, were never for a political solution that recognized the autonomy of
the Tamil people. As will be explained later, this is not to abandon the search for
greater autonomy for the Tamils, but to point out very briefly that May 2009 was not the
ideal opportunity one thought Sri Lanka got, to address the question of Tamil
autonomy. This should only make the search for a political solution a more immediate
and serious one.
Secondly, if one believed that the current constitutional framework (i.e. the 13th
Amendment) was adequate to address the Tamil question, it is necessary to reiterate
today, five years after the war, that it does not appear to be so. The problem here is
not just that the 13th Amendment has many flaws that impede, rather than facilitate,
devolution, or that it is one rejected by the Tamil people. The more underlying problem
is that the 13th Amendment is the most ingenious answer to not resolve the ethnic
question in a manner acceptable to the Tamil people. This is because the 13th
Amendment, in extending a devolutionary mechanism to the entirety of the country,
kills the specificity of the Tamil problem. In doing so, and in providing a system with so
many provincial councils, the Sinhala psyche is pushed to the point where it begins to
view the entire provincial council system as a burden, unworkable, a strain on the
countrys resources. This makes the 13th Amendment unworkable beyond the point to
which it is presently implemented; and any movement above what is guaranteed today
can be shot down under the pretext of equality [i.e. that given to the North should be
given to all, or it is only that given to the rest that can be given to the North].
Therefore, the 13th Amendment, far from being a solution, is precisely the problem.
And I would argue that moving beyond this is necessary, also especially to escape the
ever-burgeoning gaze of India. While Indias influence cannot be entirely prevented,
Indian intrusion will be greater as long as it has a leash in the form of the 13th
Amendment. And this will continue to be a burden on the country, which requires the
greater unity of the Sinhala and Tamil peoples to stand firm in the face of both regional
and global imperialistic forces. [To be sure, this is an argument that agrees with the
Sinhala-Buddhist position, but for very different reasons].
Thirdly, five years after the war, Sri Lanka appears to be moving in a direction where
the space for a meaningful discourse on a political settlement recognizing the
autonomy of the Tamil people is shrinking, not expanding. This is helped to a large
extent by legislative provisions contained, for example, in the 6th Amendment to the
Constitution and the Prevention of Terrorism Act (PTA), supported by calls to make the
language of self-determination seditious (as was done by some commentators, soon
after the war), and a flawed reading (or a non-reading) of the jurisprudence, especially
Third-World jurisprudence, on the matter. This situation is also unfortunately helped by
the call to focus only on what is thought to be possible in realistic terms, the 13th
Amendment.
Fourthly, while the Southern discourse is moving towards the understanding that
greater democratic reform is necessary, there appear to be two central weaknesses in
the reform projects proposed by many.
One: this discourse often tends to leave out the Tamil constituency or its wishes. It is
almost as if the South cannot think of moving forward with the issue of a political
solution to the North/East question in mind. Thinking beyond the present constitutional
framework has become almost impossible. Two: the pro-reform discourse can be the
very discourse which, rather than facilitating the probability of a political solution,
further entrenches the improbability of finding a solution based on greater autonomy.
This is when the Executive Presidency (no doubt, a serious problem) becomes the
main problem; forgetting, that what led to the Vaddukoddai Resolution of 1976 was not
the Executive Presidential system.
In other words then, the message from the South to the people in the North who elect
the TNA in record numbers is: just wait until we put our house in order. In doing so,
both the Sinhala people and the Tamil people would feel misled: the former, because
devolution is supposed to come through the back-door; the latter, because of the
promise that devolution is indeed possible when our guys are elected. But this does
not take the search for a political solution anywhere meaningful.
Conclusion
To avoid pressure being exerted on the issue of accountability, a political solution is
imperative; but the search for a political solution is that which also looks almost
improbable, today. The popular and natural next-step has for long been to submit
oneself to realism or pragmatic realism. It is a problem common to many reformist
voices in the country, however well-intentioned they may be.
But this is wholly inadequate to address the most pressing question in the country: the
national question, the question of Tamil autonomy. Continuity with the existing powers
in place (and one will agree with the critical reformists here) is not certainly the option.
But it is also necessary to realize that just as all virtues have their darker sides, reform
can also be a form of continuity, now in a different garb. This is one danger that looms
large, five years after the war.
That can be changed only with a honest but cold critique, a call for a more radical
change in mindset, a constant reiteration about the possibility of that which is claimed
to be improbable, even impossible, to some (or in the least, the correctness of that
which might be dismissed as impractical); recognizing, that the categories
impossible/impractical are not natural in politics, that they are our own constructions,
which are also determined by our own political interests. For example, one task is to
constantly question that which we do not: to question what it means to say that
accountability is a problem; to question what it means to promote accountability for
some and not for others; to question what it means when we say individuals are equal
but not peoples; to question what it means to say that the original home of some are
elsewhere; to question what it means to give prominence to one language or religion
and not the others; to question what it means to promote reform while being silent
about devolution, etc and to set out what impact, what implications, result from the
meanings we attach to such statements and policies.
This is a difficult task, but a necessary one: if both the Tamil and the Sinhalese people
are not to be misled; if a united country is really the avowed goal. And once one
begins to start thinking differently, about ourselves, about who we are to each other,
neither the issue of accountability nor the issue of a political solution will be such a
terrible burden as these issues appear to be, to a majority in the country, even five
years after the war.