Five years on, where we are now: Reconciliation, the Rule of Law and governance

Mrs. Balambihai Murugadas,It is five years now after the defeat of the LTTE. As the Government then claimed it marked the end of terrorism and the beginning of a new era of reconciliation and renewal throughout Sri Lanka. The Government’s specific goals were the restoration of peace, rehabilitation of the ravages of war, rapid development of all sectors of the economy, the return of the rule of Law and increasing prosperity for all.

In the North, as it was admitted, the most severely affected region, a large and powerful official Task Force set up for the rapid development of the Province, launched – the uthuru vasanthaya – a felicitously named northern spring. Established under the Chairmanship of the Minister of Economic Development, reconciliation between the two estranged ethnic communities was to be its priority, chiefly through economic development. Subsequently, in 2011, as a mechanism for the whole country, a carefully selected nine – member Presidential Commission was appointed under the chairmanship of a former Attorney –General, (the Lessons Learned and Reconciliation Commission the LLRC) to examine the causes, long term and proximate that had led to the conflict and recommend measures to remedy such defaults of governance as the Commission had perceived and bring about good governance and reconciliation countrywide. These two prongs of the Government strategy – an expensive portfolio of economic projects to rapidly develop the North on the one hand and the governance – orientated policy reform agenda based on the LLRC for the entire country on the other, would have – to an impartial observer from anywhere – be a sure and certain foundation to the achievement of the desired objectives of reconciliation, restoration of peace, the rule of law and increasing prosperity for all Sri Lanka’s people.

But it has not worked out as planned. What went wrong, for the present indicators, internal and external, show that much has gone wrong and that the overall strategy has not worked. The signs are clear except for the most obtuse. Lets highlight some of the more obvious of the signs.

Internally, at the end of five years since 2009 there is possibly more polarization between the ethnic communities than there ever was. The results of the Northern Provincial Council elections last September (2013) which were expected by the Government to show some Tamil support for the economic and social achievements in the North (roads, bridges, railway, demining, rehabilitation of ex – combatants, housing, resettlement, mainly) showed on the contrary widespread dissatisfaction. The Tamil National Alliance, whose electoral Manifesto and rhetoric emphasized more autonomy and far less central control, secured a convincing 70 per cent majority of the votes cast. These results in favour of TNA obtained in the face of very strong use of State resources and personnel for the UPFA – supported candidates was a remarkable eye -opener to all. The Government used every trick in the book including, using the charisma of the Head of State’s presence at key events during the election period, to bolster its chances. But to no avail. The ideology of liberation – and symbols reminiscent of the 30 year struggle – seemed to be resonate more powerfully in the mass, than bread, metal roads and buildings. Valuable lessons here for the State, if it was still willing to listen and learn, and rectify matters.

What the Northern Provincial Council elections highlighted was that in spite of five years of no obvious conflict, and overall economic growth (if we use official GDP annual growth figures as estimates) and in spite of visible material improvement all -round, the distrust and suspicion between the two ethnic communities (if one equated ‘Government’ with the ‘Sinhalese’ majority community) showed no sign of diminishing.

Why is this so when so much has been done; this appears to be a common response among the more thoughtful on the Sinhalese side.

Externally, the final Resolution of the Human Rights Council(27th March 2014) is a clear and unequivocalfinding against Sri Lanka of an international inquiry on the long debated issue of accountability for alleged violations of IHL and human rights during the war plus the new charge of deteriorating standards of governance, added on. So if we take these two obvious factors as objective indicators, one internal and the other external, the balance sheet as to whether the hoped for objectives, of reconciliation, restoration of the rule of Law, good governance and a better life for all of Sri Lanka’s people has been achieved, the score is not favourable.

This Paper would focus chiefly on the reconciliation objective and why that has gone wrong since to this observer all the other objectives appear to be influenced by this. The lack of a successful reconciliation initiative has in Sri Lanka’s particular condition an, indirect but powerful and all encompassing effect, not only on the non-achievement of a positive peace but also on the overall rule of Law and governance situations.

In short, genuine reconciliation between the Sinhalese and Tamil communities after the War has been greatly impeded by two critical factors. One, the issue of the large and pervasive military presence in the North and East and secondly, the issues of administration in the North arising from the conflict between the roles of the Governor – the official representative of the President and central government – and the Chief Minister of the Northern Provincial Council – the repository of the provincial devolved powers, such as they are specified under the current 13th Amendment.

Regarding the military presence, in spite of the LLRC recommending a scaling down in phases of the numbers of military personnel and the, as important issue of the replacement of the former General who is Governor by a civilian administrator, there does not appear to be any visible movement. Both issues have been frequently agitated by the Chief Minister and the TNA with the President. Among the people of the North, especially the women, there is reported vulnerability at the presence of the military, still regarded with some fear as an ‘army of occupation.’ Moreover, the part the military play in enterpreneurial activity – catering services, retailing, agriculture and fisheries, while ostensibly useful to the public in the supply of goods and services at cheap rates creates in the free market, a diversion and unfair competition with the goods and services of local farmers, fishermen and others. It is clear that if servicemen perform agricultural labour as part of their job (being paid by the State through Treasury funds) their goods and services can be supplied at a ‘no labour cost’ price which would undercut all other local suppliers. There is clearly a hidden subsidy and unfairness here which distorts markets. The northerner is naturally aggrieved at this too. But the dilemma is how else would one keep the military happy and occupied without engaging them in productive economic ventures.

On the side of the government the vital need for these military forces to be there, in spite of the outright victory over terrorism five years ago, are found in the frequent media reports of caches of concealed arms, and attempts at the recrudesence of the LTTE which are nipped in the bud by a vigilant military. This is clearly a scenario which can go on for many years and will obviously be supported by a southern public obsessed by the fear of further insurgencies from the North. The likelihood therefore is that there will be no change as regards the military, nor its size[1], in the North for the forseeable future.

The other issue of the need for an ex military officer as Governor, his powersvis a vis the Chief Minister and the clarification of the devolved powers of a Provincial Council also appear to be stuck where they were five years ago. There is a Provincial Council (after many years) but with no effective power according to the Chief Minister to address the diverse issues of the people that await resolution. So virtually another blank wall as far as a critical need for Reconciliation is concerned.

Built around these afore – stated concerns, among several others, are two widely – held contradictory “narratives” each community has of the ‘other’. Until the distance between the narratives is reduced, and this requires strong political will and sustained official action (along the lines of the constructive LLRC recommendations) plus the accountability issues around the end of war scenario, there is little hope for any real reconciliation. Political analysts[2] have referred to these deep-rooted sensitivities in the literature. What has happened at the end of war (January to May 2009) particularly the alleged decimation of non- combatants (men, women and children caught in the no-fire zones), in bringing the war to a speedy conclusion in Mullaitivu, has added new layers of hostility to the old narratives the Tamil community have of discrimination and unequal treatment. Writers have referred to the additions and exaggeration that ‘narratives’ take on over the years as memory fades especially in the extreme conditions of diasporic communities. The Sinhala and Tamil narratives – (the ‘history of the times’ as the two communities see it and memorialize it) – has always been widely divergent. Today, fresh nuances generated by the long, and at most times brutal, war has sharpened the differences.

The contest of narratives, now relentlessly pursued by the Tamil diapsora, fuelled by new ‘evidence’ produced by Channel 4[3] and other media, is more antagonistic than ever. It has gone international and in the media contest the ‘International’ seem to believe what the Tamil – side says. Since at most times the world-wide public tends to favour the “underdog’ the Government (Sinhalese) story, which, at best has been blank denial, – starting with the absurd ‘zero civilian casualties’ in the first instance – has generally been disbelieved.

A close reading and understanding of the final Resolution of the last UNHRC, which was won by the ‘WEST” with a majority of 11 in favour and 12 against, indicates that some sort of international inquiry will begin soon in Geneva under the aegis of the High Commissioner for Human Rights. The Human Rights Council has apparently grown tired of repeated attempts at getting Sri Lanka to launch its own independent credible inquiry into what really happened in those last months of war and has now taken control of the Inquiry. This is indeed a very serious situation which has to be addressed. Public comments by official spokesmen indicate that the Government is not too bothered by the ominous prospect of an international inquiry. It takes an unreal high moral stance and using an outdated conception of ‘national sovereignity’’ says it would not cooperate with the UN mandated inquiry and would reject any attempt by a foreign body to come into Sri Lanka for such a purpose. While this strong response has been cheered by some, this short-sighted stance seems to miss the point. Non-appearance by the accused party at a trial could result in an ex parte finding. Moreover a great deal, in the form of visual and textual material (satellite imagery, reports of the UN and government officials, mobile camera shots and videos, witness ‘evidence’ led at the UNSG’s POE inquiry in 2010 -2011, etc) is already available with the ‘prosecution’ sources abroad – mostly collected and orchestrated by the Tamil diaspora – and this ‘evidence’ will clearly be led at any international inquiry. By not being present the accused party loses the chance of questioning the validity of the evidence. The Sri Lankan public at large and a major part of the political order, bureaucracy and private sector (who will be the first to be affected) seem blissfully unaware of the impending danger. The media too appear to have been desensitized to the likely consequences and the overall government strategy seems to be that whatever comes along will be faced and defeated and that our powerful friends – China and Russia in the final analysis – will see us through.

Perhaps in the circumstances in which we are, with no effective response to the alleged ‘credible’ allegations, (assuming that the inquiry will follow the parameters of a judicial court) this may be the only alternative. In short ‘huckle down’ in the face of the tornado to come and lie low till it blows over.

The problem this observer sees though is that the UNHRC inquiry may not be the end of the affair but only the beginning. Faced with a likely ‘No Show’ by Sri Lanka at the UN inquiry there could well be recourse to the International Criminal Court and follow – up action from that body. International law experts have opined that (a) Sri Lanka not having acceded to the Rome Treaty is not a sufficient reason for the ICC not becoming activated (the UNP safeguard) and (b) that the ICC Prosecutor can take cognizance of credible evidence organized by a responsible body. We would think that the UNHRC is such a responsible body whatever the Government might presently wish us to believe. So the possibilities are that Sri Lanka may well be in the position that Kenya and Sierra Leone find themselves in today.

Moreover, let’s not forget that two very formidable forces will keep on the pressure at Geneva until the Tamil position (or narrative) is vindicated ie. the local TNA and the diaspora on the one hand and Jayalalitha and Tamil Nadu on the other. It would appear too that given the expected surge in support for the BJP in the Indian general elections these two forces may well be scenting, for them, the sweet smell of retributive justice at long last.

It is this observer’s contention that the broader problems of constitutional reform and the challenges of a return to good governance and the rule of Law are all bedeviled by the likely consequences of the coming international inquiry. Until that particular demon is overcome, by whatever means, any attempt to alleviate the major structural challenges Sri Lanka now faces of reconciliation, the return to rule of law and good governance will be spasmodic, peripheral and illusory.


[1] A few months ago it was reported that the President had commented at a public meeting in Jaffna that the total number of military personnel in the Northern Province (consisting of the five Districts of Jaffna, Kilinochchi, Mullaitivu Vavuniya and Mannar) had been reduced to 13,000. This was contested by the Chief Minister who insisted that the numbers were yet close to 150,000) There is no public way in which this discrepancy can be verified.

[2] Two books ‘The Invention of Enmity” by David Little, and Benedict Anderson’s” ‘Imagined Communities” help in an understanding of the complex processes at work here.

[3] While Channel 4 has produced three so-called documentaries on the ‘killing fields’ of Mullaitivu there has been little effective contradiction of these. These have been shown in Western countries and influenced wide swathes of the public. Extracts have been surreptiously shown in Tamil Nadu. For understandable reasons Sri Lankans have not been privy to the videos on TV and Government commentators have dismissed the allegations as being ‘preposterous’ and therefore presumably not worthy of rebuttal.