Procedure for changing the Constitution

The Constitution can be amended by passing a bill with a two-third majority of Parliament.  However any constitutional changes that affects certain entrenched Articles of the Constitution needs a two third majority and approval at a referendum.  For example a change that affects Article 13 (which devolves power to provincial councils) or Article 3 (which establishes the sovereignty of the people) would require a referendum.  A referendum is only successful if the total number of ‘Yes’ votes amount to an absolute majority of the total valid votes cast at the referendum.

If Parliament seeks to amend the Constitution via an urgent bill, the President is required to seek the opinion of the Supreme Court.  In its opinion, the Supreme Court is required to state a) whether the bill actually changes the Constitution and b) whether a referendum or whether a simple a two third majority is sufficient to make the proposed changes.

On Monday, 30 August 2010, the President and Cabinet of Ministers introduced an urgent bill to make changes to the Constitution.  On Tuesday, 31 August 2010, the urgent bill was referred to the Supreme Court.

Key Proposed Changes to the Constitution

• Removal of the two term limit: There will no longer be a limit on the number of times an individual can be elected to the office of the President.
• Repeal of the 17^th Amendment: the Constitutional Council will be replaced with a new Parliamentary Council. The President will seek the ‘observations’ of the Parliamentary Council in making appointments to key governments posts.  However where the Parliamentary Council fail to communicate its observations to the President within the specified time, the President can proceed to make appointments solely at his discretion.
• Restricting the role of the Election Commission: The Election Commission will no longer have the power to issue directions to prevent political parties from using state resources to advance their campaigns during elections.  Further the private media will be under a duty to comply with guidelines issued by the Election Commission.

Proceedings before the Court

The reference by the President was heard by a special Supreme Court bench comprising of Justices Bandaranayake, Sripavan, Ratnayake, Imam and Suresh Chandra.  The Attorney General advanced arguments on behalf of the Government, and explained the proposed changes to the Court.  A summary of his arguments is as follows:

• Changes enhance the franchise. Removal of the two term limit is in fact an enhancement of the franchise of the people.  It will introduce a “galaxy of choices” in terms of presidential candidates.  “The people’s choice will be unfettered.”
• Improve accountability: Mandatory attendance at Parliament by President will bring the President more in to the process of the Parliament, and thus make him more accountable to the People.
• From the outset it was clear that 17^th Amendment could not work.  In its original 17^th Amendment judgment, the Supreme Court “prophesized” that the 17^th Amendment would not work.  The 17^th Amendment is directory and not a mandatory provision of the Constitution.  Therefore the current proposal to repeal it, would not affect the sovereignty of the people.  [That is 17^th Amendment does not affect ‘sovereignty’ which consists of fundamental rights, franchise and powers of government]
• The Constitutional Council was inherently flawed. It was impossible to reach a consensus on who should be appointed to the Council.  Further, the Constitutional Council consisted of members outside the Parliament; therefore, it was impractical for the members to reach a consensus.  The new Parliamentary Council would consist only of members within the Parliament.  Therefore, it is bound to work better than the Constitutional Council.

Intervienients’ Arguments

In proceedings like this, there is a process for interested parties to intervene and raise their objections to the proposed amendments.  There were six intervening parties representing different interest groups, including the Centre for Policy Alternatives and Ravaya newspaper.  We have summarized the key arguments raised by the intervening parties.

• Manner in which these amendments are sought to be made violate the first principles of Constitutionalism. The manner in which these changes are sought to be made demonstrate a shocking disregard for basic internationally accepted norms of Constitution making.  These changes affect the independence and integrity of democratic institutions of this country.  Yet these proposed changes were hatched in secrecy with no public consultation.  The Constitution is meant to protect and empower the people from those who wield political power.  If the Constitution can be changed by the wielders of power without participation of those whom a constitution is designed to protect the basic rationale for having a Constitution is undermined.
• What is the urgency? The Bar Council of Sri Lanka has passed a resolution stating that amendments to the Constitution ought not to be rushed through as ‘urgent bills’.  Bill are deemed urgent, when the Cabinet decides they are ‘urgent’ in the national interest.  The Attorney General has not made clear why these changes have to be made ‘urgently’.  It is difficult to escape the conclusion that the changes are being rushed through to avoid proper judicial scrutiny and consideration by civil society.   It is important to note that the intervening parties only received their copy of the bill AFTER the Attorney General started to make submissions to the Court.  The Supreme Court should use this opportunity to lay down guidelines and criteria for the introduction of urgent bills.
• Supreme Court has a special responsibility.  The Basic Structure Doctrine as developed by the Indian Supreme Court requires that even with a two third majority basic features/ values of the Constitution can not be amended.  The rational of the Basic Structure Doctrine requires that when those who wield power want to introduce amendments to benefit themselves, and NOT the people, the Supreme Court has a special responsibility to protect the people.  Similarly in the United States there has long been a thought that even if the Supreme Court was to be deferential to the political branches when it comes to political matters, the Court had to accept a special responsibility to ensure the integrity of the democratic process.
• Survey of Constitutions from around the world reveals necessity of term limits. It’s important to see what the practice in other countries is with regards to term limits on the head of government.  First, there are no term limits on countries with parliamentary forms of government.  This is because of the nature of Parliamentary system, you elect a party not a person, and the presence of the Prime Minister is always balanced by the presence of an opposition in Parliament.  Further, the Prime Minister can at any time lose his position if he does not have the support of a majority of Parliament.  Term limits are always found in countries with an executive president.  If you look around the world the following countries do not have term limits:  Azerbaijan,  Singapore,  Syria,  Turkmenistan, Vietnam,  Venezuela, Yemen,  Belarus,  Costa Rica,  Cuba,  Niger,  Algeria,  Burkina Faso,  Libya, Uganda.  Except for Costa Rica, all of these countries are one party states or dictatorships.  Singapore is often portrayed as a model of development, but it is important to remember that it is a one party state.  In its 94 member parliament, 82 are from the ruling party, 9 are appointed members and only 3 are from the opposition.  Only a few countries have removed term limits and still managed to avoid being a dictatorship: Peru, Chile and Uruguay.  In these countries a President can hold office for unlimited number of terms, but the terms can’t be consecutive, thus providing for an important safeguard.  With this proposed 18^th Amendment to the Constitution, Sri Lanka will be joining ranks of one party-states and dictatorships.
• Term limits provide an important check on the concentration of power.  First, the longer a President holds power, the line between the ruling party and the state becomes blurred.  Second, the longer a president holds office; the balance of power between the three arms of government will tilt to the Executive.  Third, term limits allow for those aspiring to power to wait for their chance to run for office.  Thus, it prevents aspiring candidates form resorting to unconstitutional action to get in to power.  Fourth, the term limits promote a party based as opposed to a personality based form of democracy.  Fifth, defeating a long sitting president is a very difficult task.  The sitting President has unrivaled and unfettered access to public resources and campaign funds.  Even in the most consolidated multi-party democracies, there are always flagrant abuses of state resources during elections.  Therefore, having a President that can run for an unlimited number of terms, will significantly weaken the chances of other candidates to wage successful election campaigns.

• Removal of the two term limit violates the mandate of President Rajapaksa. The proposal to remove the two term limit violates the mandate given by the people at two successive presidential elections.  In 2005, Mahinda Chinthanaya 1 promised to abolish the Executive Presidency before the end of the first presidential term.  Mahinda Chinthanaya 2 promised to a) reduce the powers of the executive presidency, and b) make it more accountable to Parliament.  The proposed changes are totally contrary to these promises contained in the Mahinda Chinthanaya.
• This change requires a referendum because if affects the sovereignty of the people.  [As noted above a referendum is only required when any proposed amendments to the Constitution affects certain provisions.  On the surface the proposed changes don’t affect any of those provisions]. However it was argued that these special provisions need to be interpreted more broadly.  For example, the referendum clause doesn’t say that a referendum is required if the writ jurisdiction of the Court of Appeal is to be taken away.  But surely, if the propose amendments tried to take away the jurisdiction of the Court of Appeal, then that would require a referendum?  Similarly, the proposed changes need to be seen in a broader context and how they undermine the sovereignty of the people.  Any change that affects the sovereignty clause (Article 3) requires a referendum.  Sovereignty includes the powers of government and fundamental rights of the people.  The removal of the two term limit will affect the balance of the three branches of government; in particular it will remove an important safeguard against arbitrary government action.  Similarly, the 17^th Amendment strengthened the sovereignty of the people by providing an important check on arbitrary executive action.  Further the 17^th Amendment, served to enhance the independence, legitimacy and efficacy of the institutions that facilitate the realization the fundamental rights of the people. (For example, the judiciary, the Human Rights Commission, the Elections Commission, the Public Service Commission and Police)  Therefore, as these changes affect the fundamental rights of the people, the balance of powers of government, they ultimately affect the sovereignty of the people, and requires a referendum.

• This change requires a referendum because if affects the provincial councils. One must read the Constitution as a whole.  The proposed amendments seek to significantly do away with the powers of Finance Commission and the National Police Commission.  Such amendments requires further special procedure set out in 154G (2) – (3), that is, the change must be gazetted and referred to all the Provincial Councils, so they can express their views on the proposed changes.
• Attorney General is incorrect to submit that the 17^th Amendment is directory.  The text of the Constitution, the intention of the framers, the rationale or purpose of the 17^th Amendment and the determinations of the Supreme Court (in the 17^th, 18^th and 19^th Amendment cases) show that the 17^th Amendment to the Constitution is mandatory.  The Hansard proceedings of the debate on the 17^th Amendment especially the speeches of Prime Minister Ratnasiri Wickremanayake an Mr Wimal Weerawansa, make it absolutely clear that the intention of the framers, the intention of the legislature was that the provisions of the 17^th Amendment were to be mandatory.
• Toothless Parliamentary Council The proposed alternative to the Constitutional Council would result in the politicization of key government posts. The proposed alternatives would curtail the freedom of thought and conscience of key public officers and Commissions.
• Reducing the powers of the Electoral Commission will undermine the future of free and fair elections. The proposed amendments will do away with a key safeguard that prevents the abuse of state resources by the ruling political party.

Oppression of Private Media The proposed amendments allows the Election Commission to impose guidelines on Private Media during elections.  The private media ought to be able to function freely, enabling voters to freely decide at an election.  This would undermine the general public’s right to information.  The right to information is the staple of their right to through and conscience (protected by Article 10 of the Constitution).

18^th Amendment to the Constitution

The table below in summary form compares the existing provisions of the Constitution and the proposed amendments.

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Editors’ note: Download a PDF of the above table here. An interview with Rohan Edrisinha, a lecturer at the Law Faculty of the University of Colombo and Director of the Centre for Policy Alternatives, on the outrageous process and substance of the Eighteenth Amendment to the Constitution can be viewed here.

• Outrageous process and substance: The proposed 18th Amendment to the Constitution
• THE CONTINUING VIOLATION OF THE SEVENTEENTH AMENDMENT: YET MORE UNCONVINCING EXCUSES
• President’s second term: Two options before the Supreme Court
• A Presidential Election in 2010? The 3rd Amendment and the Continuing Constitutional Crisis
• Impeachment of Public Officials

What does reconciliation mean for an 18 -year -old, middle class lad from Mannar? What does absence of war mean to a person who has had firsthand experience of discrimination, shelling, killing, heavy checking  and pass systems? Is there a difference between War and No War?

My personal understanding of reconciliation is, at the core, a fundamental transformation which turns hatred into love. From an 18 year old perspective reconciliation bears little or no relevance to the prevailing political situation, to the existing holes in our constitution or to the level of commitment  to implement the 13^th and 17^th Amendments. Personally for me, if a fellow Sinhalese citizen can accept me as a “Sri Lankan Tamil human being” who is entitled to enjoy every right and privilege he/she enjoys, and most importantly forgives me for the role I’ve played directly or indirectly to the conflict, and asks for forgiveness for his/her role either direct or indirect, that is reconciliation. It is also my understanding that the process of reconciliation begins with me, not anyone else.

Even though a positive constitutional reform or the implementation of the 13^th and 17^th amendments would without doubt contribute to peace and reconciliation on a national scale my belief is that these short comings should not deter anyone from actively seeking reconciliation with others from  different ethnic backgrounds.

The importance of appreciating diversity, celebrating our differences, and valuing others

On the third day of “Future Leaders Conference-2010”, Colombo Chargers, the group I was part of, decided to fast as an expression of solidarity with our fellow Muslim team mates who are celebrating the Holy month of Ramadan. It is important to note that it was an entirely student initiative. It  proves that there is willingness and potential among the present generation of youth to embrace other cultures and celebrate their uniqueness.

Here are some questions addressed to different speakers  during the Q&A time of the conference , which would support my argument.

“How can Tamils claim to be citizens of Sri Lanka, when the general feeling/mindset is that constitution deprives Tamils from becoming head of state?”

“Durable political solution or economy and infrastructure development, which is the  priority?”

I was honestly surprised and also moved by the reality that these types of questions were coming from Sinhalese students, and I consider them to be reflections of the younger generation’s feelings toward Tamils. There were many other equally bold questions that were relevant to the country’s current state of affairs, which also shows that the youth of this country are aware of present political context.

During the art project time and sports time one positive characteristic which prevalent was willingness to listen, valuing others’ ideas. Throughout the two hours we spent on it, despite the language barrier, we were able to communicate effectively and incorporate everyone’s ideas and  together create a magnificent piece of art that spoke for itself.

When I got back home and shared some the above feelings with my father, he  was surprised. But, he also noted “our country’s system is so corrupt all this idealism will soon wane out”. I realized that there was an element of truth to what he said which led me to realize the significance of preserving, conserving, and cultivating these values and feelings.

The role of Sri Lanka Unites in my life

Sri Lanka Unites has added meaning to my life by inspiring me to work courageously in the present and also hope for the future.

The more I got involved, the more I became aware that reconciliation is indeed possible and Sri Lanka does have a future to hope for. The more I became involved the more I was aware of the role I can play with my capabilities in making reconciliation a possibility. The more I got involved the more I was able to discover my potential and also my weaknesses.

This April our school’s Sri Lanka Unites Club organized a three -day residential conference for 40 potential student leaders drawn from around Mannar. The conference helped us to raise awareness on wide ranging topics. Significantly it enabled us to take the message of reconciliation to the grassroots level. With perseverance we managed to convince the Danish Refugee Council to fund us. We also managed to rope in several key figures in Mannar to speak on topics like Leadership, Self management, Sexuality, Child Rights, Importance of Documentation etc. The whole exercise demanded a lot patience and hard work. The days that preceding the conference were learning curve to all of the team. The most valuable lesson of all was the value of Commitment.

The last day’s theme was peace and reconciliation. We contacted Prashan De Visser, President -Sri Lanka Unites (Prashan Anna) and asked him whether he could help us out with the last day’s sessions. Mind you, two days before the final day of the conference Prashan anna was doing Election coverage for the Presidential elections, for 24 hours nonstop, and was doing some other serious business the day before. Without any reluctance, he agreed to come. Commitment. A wrong turn at the Dambulla Junction by the driver with Prashan Anna asleep at the back took him and the two others to Valaichenai, even after that they drove back and made it for the noon session. Commitment. With nobody to run the morning session, we called Christyraja Kirubakaran, Assist- Vice President (Christy anna), who was at that time doing his Sarvodaya work. He dropped everything and immediately arrived (he lives and works in Mannar). Commitment.

Together Prashan & Christy Anna made the final day the best. The commitment they exhibited made all our efforts pale in comparison.

Because of Sri Lanka Unites I’ve learned to see not the differences but the similarities between me and a fellow citizen from a different ethnic background. The time I spent with the Sinhalese taught me that except the language and religion the Tamils and the Sinhalese have almost everything in common. The same type of interests, likes and dislikes. The more I became aware of this the more the fact that Sri Lanka is a divide nation became a mystery to me.

So why are we divided? What is that mysterious factor that is keeping us away?

To be honest I do not have exact answers to these questions. But I seriously intend to find them. This is the search for truth that Sri Lanka Unites has catalyzed within me. Sri Lanka Unites has indeed started the Truth and Reconciliation process within me.

But the beauty is, there are thousands of other students all over the country who are trying with courage to find answers to similar questions. The beauty is, there are thousands of other young boys and girls who have hope for a brighter future. The beauty is, every one of them is working in their own unique ways to make that Future a possibility. All because of Sri Lanka Unites.

The Sri Lanka Unites Attitude

Sri Lanka Unites is a celebration of democracy. One organization that seriously practices it. Every man gets his say, the students get a say on things ranging from picking speakers, games to play, the dates etc. Whenever we step up to do anything we know that we have the full backing of the executive committee. Sri Lanka Unites is a living example of democracy from which the whole country can learn.

Most of the students, if not all, realize that reconciliation is not achieved through holding hands or shouting “Sri Lanka Unites”; these are merely symbolic expressions of feelings hard to express. Everyone accepts that this is just the beginning of the whole process and that we have a long way to go. In fact, we are also aware of the steps we have to take to move forward. Throughout the conference every speaker emphasized the importance of building a dialogue, a dialogue that enables one to build relationships and ultimately help us to reconcile and resolve the conflict. Building such dialogue depends deeply on effective or efficient communication. Steps were taken to equip the students with tools like Facebook so that there is enough interaction between SLU members throughout the post-conference period.  Schools that had internet access but did not have Facebook groups got the opportunity to create Facebook groups, while efforts are in place to provide internet access to schools lacking internet.

If anyone has any doubts over the depth of the friendships that have been formed I hope this piece of experience would shed some light on the depth of the friendships that have been created, and that they continue to grow.

Last June I was in Colombo for a competition. It was a very brief stay, and I did not tell any of my SLU friends that I was in Colombo. A friend of mine got the wind of my arrival and was thoroughly disappointed with my actions. I’m in Colombo now and all of my friends are hosting me tomorrow.  Not a single day passes without someone from SLU contacting me via Facebook or whatever media.

It is noteworthy, that Sri Lanka Unites remains ever conscious of the diversity Sri Lanka has and takes every possible step to embrace all cultures. Let it be a student from Ladies College- Colombo, a student from Zahira College- Ampara, a student from St. Patrick’s College, Jaffna or Sangamitha Balika Vidyalaya Galle, it make no difference. Everyone is at home. For me it’s one of the most admirable achievements of Sri Lanka Unites.

But being humans, Sri Lanka Unites always remains open to accept the fact Sri Lanka Unites is vulnerable to making mistakes. We are also aware of the fact that the margin of error in this field is very thin indeed. We always welcome productive discussions, which ultimately lead us to the truth, with any genuinely concerned.

The saddest part about Sri Lanka is, and in my opinion the actual reason for the country’s state, only a very few make it beyond the stage of discussing things to doing things. Sri Lanka Unites is an exemplary organization to all armchair critics. Sri Lanka Unites is a results oriented, action based organization which does not believe in “sitting there and doing nothing”. The fact remains that Sri Lanka Unites has not survived an year but has thrived, adding meaning to many a soul.

The importance of the missing “justice” factor in Truth and Reconciliation process

History clearly shows that Justice is one of the most significant elements for reconciliation. South Africa and Northern Ireland took the bull by the horns. Both countries were sincere and brutally honest about all the injustices, and elements that fueled the conflict. For Sri Lanka, too, the fact remains true that unless we get real harsh and tackle the very foundations of the conflict with brutal honesty reconciliation on a national scale will remain a far away dream.

Even though my knowledge on these topics is very limited, I am very much aware that in Northern Ireland the people who catalyzed reconciliation went as far as bringing people concerned and facilitated discussions that were real harsh, such as “Why do I hate you?”.

With Sri Lanka Unites being a youth movement and vast majority of its members being school students (under 18), doubts remain whether we are mature enough to handle these questions with absolute honesty. But at some point in the future it will happen, as it should. But enough steps are taken to ensure the foundations are laid, and everyone is aware of it. Bringing down Simbarashe Mabasha, a South African who has loads of ground experience on issues related to peace and reconciliation, is an indicator and a step in the right direction.

Simba stressed that unless there is proper dialogue, reconciliation will never be a possibility. He said “Whites, with whom I was friends with for ten years, still became my enemies. They still became Whites, and I still became a Black”

Five days in comparison with ten years is nothing.

But it is highly encouraging to see that there is general willingness among the members to understand more about others, to put him/her inside the other ethnicities moccasins.

“We will not let the hatred of the past, control our present and destroy our future” is one of the fundamental principles on which Sri Lanka Unites is built. Every member makes it their conviction to remain true to it. Let us all remain true to it.

The search for the truth is more important than its possession, let us all begin that journey, the quest to find the truth, for truth alone is the way.

“If hatred can harm, love can heal. The time is now”

The author is a member of Sri Lanka Unites, St. Xavier’s Boys’ College, Mannar and a participant at the Future Leaders Conference 2009 and 2010

• Sri Lanka Unites: Our vision and work
• A critique of Sri Lanka Unites: Freedom has NOT made itself known
• A narrow escape and a great tragedy
• Blast Outside Eastern University Batticaloa
• What Is The Future Of The Eastern University?

Groundviews exclusively carried Jayantha Dhanapala’s response to erroneous and selective media reports of his submission to LLRC a few days ago, in which he promised an authoritative transcript of his presentation and of the question and answer session from the LLRC.

A covering note to the media from Mr. Dhanapala and the transcripts were sent to us today. Download the transcript here as a PDF, and another PDF noting the members of the LLRC here.

Interestingly, Shamindra Ferdinando, the News Editor of the Island newspaper mentioned on two occasions that he and his newspaper stand by the initial story on Mr. Dhannapala’s submission to the LLRC (see here, and a more detailed explanation of sorts here). Shamindra’s article in the Island, Ex-UN Under Secy General tells LLRC: Intl. laws shouldn’t apply to conflicts between States and terrorist groups published on 25 August, had Mr. Dhanapala ostensibly saying that,

“International Humanitarian Law (IHL) should not be applied to Sri Lanka’s war against LTTE terrorism and the time is opportune for the country to push for new guidelines. The former head of the Peace Secretariat says a conventional army cannot be bound by international laws in fighting a terrorist organisation, which deploys suicide cadres, child soldiers and human shields.”

The Ministry of Defence website, featuring an article from the Presidential Media Unit of Mr. Dhanapala’s testimony, noted that he had seemingly said “Armed forces should not be charged with war crimes when they launch offensives against terrorists”.

These points, amongst others made in the Island article by Shamindra and others in print and online prompted Kalana Senaratne to write Internal Armed Conflicts, Humanitarian Laws and the Curious Transformation of Dr. Jayantha Dhanapala as a response.

Tellingly, neither in Shamindra’s article nor the article that appeared in the Ministry of Defence website refers to Mr. Dhanapala’s opening comments,

“The recent history of Presidential Commissions has been a dismal and uninspiring one. We have the Udalagama Commission which was aborted and we have a number of Commission Reports which have not been implemented. Nevertheless, the personal stature of all of you as Commissioners and the integrity that is widely respected of yourselves encourages me to appear before you and speak in order that our country can enjoy a future of peace and reconciliation.”

Emphasis ours.

Shamindra notes on Groundviews that “Our report was based on what Ambassador Dhanapala told the LLRC.” However, reading through the official transcript, we can find no mention of what Shamindra, the Presidential Media Unit or the Ministry of Defence attribute to Mr. Dhanapala in their respective news reports.

• Internal Armed Conflicts, Humanitarian Laws and the Curious Transformation of Dr. Jayantha Dhanapala
• Jayantha Dhanapala responds to erroneous and selective media reports of his submission to LLRC
• Interview with Austin Fernando, a Peacetime Secretary of Defence in Sri Lanka
• A bizarre polling card: Evidence of a flawed election?
• Sri Lankan Defence Ministry suddenly wakes up to its own propaganda

Rohan Edrisinha lectures at the Law Faculty, University of Colombo and is also a Director at the Centre for Policy Alternatives. In this succinct interview conducted by Vikalpa today, Rohan flags serious concerns over the government’s proposed 18th Amendment to the Constitution. Salient points made by Rohan are,

• Significant problems with the process through which the Amendment was introduced – it was rushed, not consultative and couched in secrecy. Few outside government even had access to the proposed Amendment before it was sent to the Supreme Court.
• The Amendment goes against the promises in the President’s own Mahinda Chintanaya in 2005 and 2010.
• Completely undermines the 17th Amendment, with severe implications for, inter alia, the conduct of democratic elections.
• Cumulative effect of the proposal totally undermines the depoliticisation of democratic institutions.
• Hopes the Supreme Court will say  a referendum is needed before such a fundamental change to the Constitution is introduced.

In Strange proposals and broken promises: Constitutional reform in Sri Lanka, Rohan speaks more broadly on the significant challenges facing democracy and constitutional reform in post-war Sri Lanka.

• The 18th Amendment to the Constitution: Process and Substance
• Mahinda Rajapaksa’s second term: Opportunities and challenges for constitutional reform
• Strange proposals and broken promises: Constitutional reform in Sri Lanka
• President’s second term: Two options before the Supreme Court
• THE CONTINUING VIOLATION OF THE SEVENTEENTH AMENDMENT: YET MORE UNCONVINCING EXCUSES

On our Facebook page as well as through numerous emails sent to the Editors, many present at this session of the LLRC said that media reports, including those on the Ministry of Defence website of Jayantha Dhanapala’s submission were extremely biased and inaccurate. We publish below a response to these reports by Jayantha Dhanapala as well as his written submission to the LLRC.

Download this letter as a PDF here.

OUTLINE OF SUBMISSION MADE BY JAYANTHA DHANAPALA TO COMMISSION ON LESSONS LEARNT AND RECONCILIATION

1. My experience as a career diplomat in the Sri Lanka Foreign Service from 1965-97, and in particular my period as Ambassador and Permanent Representative to the United Nations Office in Geneva from 1984-87 and Ambassador to the USA from 1995-97, are relevant to the challenges of representing a country in conflict and defending it against allegations of human rights violations. In addition my service as an international civil servant with the United Nations for ten years provided me with a multilateral perspective which will enable me to help the Commission understand the workings of an international organization in its relations with a member state. Finally my tenure as Secretary-General of the Secretariat for the Co-ordination of the Peace Process (SCOPP) from 2004-2005 and as Senior Adviser to the President of Sri Lanka from 2004-2007 exposed me to an experience relevant to your mandate.
2. The details of my curriculum vitae and my writings and statements are available on my website www.jayanthadhanapala.com
3. At the outset may I state that I welcome the appointment of your Commission despite its belatedness. It is an opportunity to learn from the tragedy of the recent past and to establish a basis for national reconciliation and unity. The leadership of H.E. President Rajapakse and the bravery of our armed forces resulted in an outstanding military victory over a ruthless terrorist group which ravaged our nation for decades. The time has now come for a multi-dimensional political solution to consolidate that military victory addressing the roots of the conflict. I must warn, however, against a strategy of postponing Constitutional change and a political solution to the problems that culminated in three decades of conflict until the Commission concludes its work and makes its recommendations. That would only exacerbate existing grievances and widen the gulf between the Government and the public at large especially those belonging to the minority communities. It will also affect the credibility of your Commission adversely. A series of  APRC meetings have taken place and a draft report awaits action by the President and its presentation to the general public for discussion and a decision after a wide consultative process.
4. Your mandate artificially sets a time frame from 21 February 2002 to 19 May 2009. That and its restricted mandate is also a limitation in your good faith efforts to discharge your task. The lessons we have to learn go back to the past – certainly from the time that we had responsibility for our own governance on 4 February 1948. Each and every Government which held office from 1948 till the present bear culpability for the failure to achieve good governance, national unity and a framework of peace, stability and economic development in which all ethnic, religious and other groups could live in security and equality. The political expediency of apportioning blame will not serve the purpose of national reconciliation. A collective apology to the people of Sri Lanka is owed by all political parties.
5. The supreme law of the land is its Constitution and we have still not been able to frame a Constitution that elicits the confidence and trust of all our citizens. It is not possible within this brief note to outline the form of devolution that I think is vital to prevent future conflict in our land. Suffice to say that constitutional reform is vital and I trust that the excellent talent we have among our constitutional lawyers will be harnessed in this vital task.
6. Education is a primary tool in creating a tolerant society. The experts we have in this field will advise more competently than I can about the techniques of teaching the three languages in use in our country from the earliest age. This must be more than a token gesture and the need for competencies in all three languages up to the GCE ‘O’ level will be necessary to weld our nation into the harmonious multilingual society we need to be. The cost of recruiting teachers and producing the books for this is a small investment for a huge gain. The example of other countries can be studied most especially in Canada. As far as possible classes in comparative religion could be introduced at senior levels in secondary schools so that a basic understanding of the 4 religions practised in our country is imparted as a pre-requisite for tolerance and religious harmony.
7. Addressing my own experience more directly I recommend that the career diplomats in the Sri Lanka Foreign Service be trained in the representation of a multi-cultural country. All diplomatic and consular missions of Sri Lanka abroad should have officials conversant in Sinhala and Tamil to communicate with the growing expatriate Sri Lankan communities. The symbols and photographs displayed in these missions should focus on the rich diversity of our culture with representatives of all religions participating in the official ceremonies conducted by them. A special outreach effort to engage all groups within the expatriate Sri Lankan community must be organized by the Ministry of External Affairs and implemented by our missions abroad.
8. Sri Lanka is a signatory of all the major international human rights conventions and reports periodically on its adherence to these norms. It would be useful if national reports are not only co-ordinated with relevant Government agencies but also with leading NGOs as well. NGO representatives could be included in the Sri Lanka delegations to Human Rights meetings. More prominence must be given in the media to these reports and the proceedings in the international forums considering them. This transparency about the country’s performance in relation to international norms is necessary both for our own citizens and for the information of the international community
9. The armed forces of Sri Lanka are already being trained in international humanitarian law and human rights. This must be intensified and the Police and the provincial administrators brought into this training process. All police stations and government offices must have facilities to deal with citizens who speak only in Sinhala or Tamil recording statements in the language of the citizen’s choice.
10. International Humanitarian Law is work in progress. Currently there are four treaties and three additional protocols which, over approximately one and a half centuries, have set the norms. The modern experience of counter-terrorism needs to be reflected in the codification of this law and Sri Lanka is uniquely equipped to take an initiative in this respect. Armed combat with terrorist groups using suicide bombers, child soldiers and human shields make the protection of civilians and war victims very difficult for the armed forces. While in no way reducing the humanitarian aspects of the existing law some discussion could take place in the international community on how the rules of engagement between the armed forces of the state and the terrorist groups could be amended on the basis of the experience gained in Sri Lanka and elsewhere. For example, the May 2009 heroic breaching of the earth bund, behind which an estimated 300.000 civilians lay trapped by the LTTE as human shields, led to the saving of many lives and the conclusion of the conflict but the alternative scenarios and its humanitarian law consequences for Sri Lanka must also be considered. With regard to anti-personnel landmines, while the Mine Ban Convention applies to nation states the Geneva Call is a neutral and impartial humanitarian organization dedicated to engaging armed non-State actors (NSAs) towards compliance with the norms of international humanitarian law (IHL) and human rights law (IHRL). The organization focuses on NSAs that operate outside effective State control. The LTTE rejected overtures by the international community to join this Call. The point I make is that existing norms have to be adapted to new situations that arise. Sri Lanka will need to consult through diplomatic channels and especially with the ICRC to convene a diplomatic conference to formulate a new Additional Protocol on new situations arising on the battlefield when encountering terrorist groups. This would be innovative diplomacy and far more constructive than the vitriolic outburst and melodramatic demonstrations we have engaged in against countries and organizations critical of our human rights record.
11. The post-conflict situation is an excellent opportunity to de-weaponise our society. In the years of terrorism both in the South and the North we developed a gun culture. The country was flooded with small arms and weapons. Nobody felt secure without a gun. But even after the LTTE were defeated we have seen no replacement of the culture of violence with a culture of peace. There is violence at the level of the village and there is violence in cities. Guns contribute to this. We have a national campaign against the consumption of liquor led by the President called “Mathata Thitha”. Should we not also have a programme which we can call “Aviyata Thitha”? I appeal to you  to place this at the top of your priorities.  The free availability of Small arms and light weapons feeds conflict and crime. They are cheap and can be carried even by children. About 60% of human rights violations in the world have involved the use of these weapons. In Sri Lanka we need stricter laws for gun control. The existing Firearms Ordinance goes back to 1916 during the British colonial era and although penalties for offences under it have been increased the entire law relating to gun control needs revision and modernization. We do not even have reliable estimates of how many guns we have licensed and unlicensed. Some NGO surveys say there are 1.9 million in circulation.  According to news reports guns owned by the LTTE are frequently being discovered. Are we sure they go into the custody of the Government? There are guns which deserters from our armed forces have carried away from the battlefield which may have gone into the underworld. There are trap guns illegally used by farmers which are misused for criminal activities. Guns should as far as possible be owned by the security forces only and private ownership must be licensed and for justifiable reasons. In a post conflict period while ensuring that we are vigilant to prevent terrorism we must also roll back the process of militarization that has taken place in our society.
12. When I was in charge of the Disarmament programme in the United Nations in addition to urging strong action against nuclear weapons I led a campaign against small arms which was directly affecting the peace and development of developing countries. There are an estimated 875 million small arms in the world 75% in the hands of civil society. They cause the deaths of about 500,000 persons every year. The UN held a conference in 2001 and adopted a Programme of Action to prevent the illicit trade in small arms. That programme is being implemented and every two years international conferences are held to review its implementation. A Preparatory Committee met in July this year to draw up an Arms Trade Treaty which will regulate the trade in conventional weapons in the world. We can use the many experiences in other countries to mop up surplus guns in Sri Lanka. Some of them have had bonfires of surplus guns. I would like to see the destruction of surplus guns in our country. That will symbolize more effectively the end of a gun culture and the defeat of terrorism. There are international resources available for curbing the proliferation of guns which we can use.
13. Racial and religious prejudices exist close to the surface in our society and can erupt in moments of tension. We need a law banning hate speech and hate incitement so that whether by the majority or the minorities all forms of hatred based on ethnicity, religion and caste are declared illegal. A Race and Religious Relations Act patterned on what other multicultural democracies have could be introduced under the Ministry of Nation Building.

A return to basic ethical principles and values is urgently needed  in our  country today when advocates of exclusivism, prejudice, hate and violence stand in the way of rebuilding a peaceful and prosperous nation.

Let us remember the words of Buddha, as recorded in the Dhammapada:

“The others know not that in this quarrel we perish. Those of them who realize it, have their quarrels calmed thereby.”

It is time we calmed the quarrels among ourselves.

• Official transcript of LLRC oral submission by Mr. Jayantha Dhanapala
• Internal Armed Conflicts, Humanitarian Laws and the Curious Transformation of Dr. Jayantha Dhanapala
• Louise Arbour and Mahinda Rajapakse
• The promise of Citizen Journalism: Article on Madrid11
• A response to Michael Robert’s Dilemma at Wars End: Thoughts on Hard Realities

Deffa (or defa) is a word that is increasingly common in internet chatrooms etc. It is an abbreviation of the English word definitely, which is used in colloquial Sinhala as an alternative to the slightly formal anivareng. From Sinhala (via Singlish?) it has re-entered colloquial Sri Lankan English with the same meaning. Here are a few examples from the internet:

He will defa help you out.
dudes…we can all defa chip in a bit and raise 300000 bucks…
there’s deffa a chance of retrieving stuff …
we’ll deffa be there!

Another word which has taken a similar route is shape, which has a far wider range of meanings in current colloquial SLE than it has in standard English. First of all the English word shape seems to have entered Sinhala as a verb (shape karanava), presumably derived from phrases such as in shape (= fit) and getting something into shape (= getting something organised, arranging something properly). Its meaning extended to include sorting things out, smoothing things over, winning somebody over, buttering somebody up, getting out of an awkard situation, etc. And it became a one-word expression “Shape!” meaning “Great!/perfect!/sorted!”

Finally, the word shape re-entered Sri Lankan English with the same range of uses. There was once a newspaper headline “Referee blamed for ‘shaping’ All Blacks rugby captain”. And Nihal de Silva used the term in his posthumous novel Arathi:

“It’s a business thing … a supplier has buggered me up.”
“Well, shape it, … You can always fix these things, can’t you?”
(Arathi, by Nihal de Silva, page 27)

###

A-Z of Sri Lankan English is an all-new, occasional alphabetical dip into the variety of English spoken in Sri Lanka, published exclusively on Groundviews. The original A-Z of Sri Lankan English was published in the travelsrilanka magazine, and can be found here.

• A Snooty English Speaker’s reply
• Sri Lankan English: The state of the debate
• A-Z of Sri Lankan English: C is for cousin brother
• B is for balls (and bowls)
• Putting cuts, part-putting and pol symbol

Photo courtesy Global Zero

Numerous reports suggest that Dr. Jayantha Dhanapala had some interesting things to say when he appeared before the Lessons Learned and Reconciliation Commission (LLRC) recently; about aspects relating to the interference of certain States in the internal affairs of other States; about the R2P concept; about the Sri Lankan Armed Forces carrying out a daunting humanitarian operation, saving 300,000 innocent civilians kept as a human shield by the LTTE and thereby preventing a certain ‘holocaust’ (The Daily News, 26 August 2010; The Ministry of Defence (defence.lk), 25 August 2010).

Thereafter, he had said the following too: that there was a need for an international protocol to deal with Armed Forces engaged in fighting terrorism with non-State actors and that ‘many of the Rules of War and International Humanitarian Laws were based on the assumption that the warring parties were conventional armies of states but in Sri Lanka’s case the LTTE had totally disregarded those laws and principles.’

Finally, he seems to have said something that even President Mahinda Rajapaksa or Defence Secretary Gotabaya Rajapaksa would have been reluctant to claim so openly: that International Humanitarian Laws (IHL) should not apply to Sri Lanka’s war against the LTTE and that a conventional army cannot be bound by international laws in fighting a terrorist organization (The Island, 26 August 2010).

The initial questions that arise here are these: where was Dr. Dhanapala all this time? Is this the same Dr. Dhanapala who, talking about the CFA some years ago, saw light at the end of the tunnel? Is he the one who was accused of trying to appease the LTTE through the P-TOMS? Why did Dr. Dhanapala decide to remain somewhat silent during the last stages of the war? Was there any reason to wait until the war was over for him to argue that IHL did not apply to the conflict in Sri Lanka? Is he coming out so boldly against the LTTE because the LTTE was defeated and destroyed in May 2009? What then of ‘integrity’ of these learned and respected gentlemen who say (or do not say) one thing during times of war, and a completely different thing after the war?

More importantly, what happened to Dr. Dhanapala who delivered the keynote address at a seminar organized by the ICES and the UNDP in November 2007, titled “Sri Lanka as a Member of the UN”? That was a very interesting and informative speech, in which Dr. Dhanapala seemed to have reminded the audience of Article 2(7) of the UN Charter and then stated that “we must also recognize that we have willingly conceded sovereignty by joining several treaties and in these treaties we have got certain obligations that we fulfill.” And then, Dr. Dhanapala said something else too. He said that: “The fact that there is a conflict requires us to maintain the Geneva Conventions and the ICRC is there to help us.”

If so, would Dr. Dhanapala tell us why we were required to maintain the Geneva Conventions in 2007, and why he is arguing now (in 2010, one year after the war) that IHL should not have been applicable?

IHL and the deprived soldier: reforming existing laws

Firstly, the Conventions and Protocols which form the general body of IHL are old. The basic documents, in this regard, are the four 1949 Geneva Conventions (the Geneva Conventions that Dr. Dhanapala referred to in his 2007 keynote address) and the two 1977 Additional Protocols. The nature of armed conflict, especially internal armed conflict, has changed over the years. The conventional soldier is today facing unconventional and sophisticated non-state actors and very dangerous terrorist groups.

It can also be seen that some of the provisions contained in the above mentioned Conventions and Protocols do not adequately cover problems that the conventional soldier might face today. Due to the arduous task that the soldier is faced with, he might even consider these conventions to be of little meaning.

Take Common Article 3 (i.e. common to all of the Geneva Conventions), which states that persons taking no active part in hostilities shall be treated humanely. But practically, the conventional soldier faces a problem here because he cannot easily distinguish between a person who takes part in hostilities and one who does not, if, for example, the person concerned is a potential suicide bomber dressed up as a civilian. Consider for instance the video footage of a female suicide bomber blowing herself up inside Minister Douglas Devananda’s office. Certainly, until the blast took place, no one was able to identify clearly that that woman was there on a suicide mission. Consider then the enormous difficulty that the soldier or policeman would face, especially in conflict areas. Article 3 informs the soldier that if a person is not taking part in hostilities he/she should be treated humanely; but then, how do you know that the man or woman or child approaching him is not a person taking part in hostilities, in the first place?

Take the issue of indiscriminate attacks for instance (‘indiscriminate’ is defined in Article 51(4) of Additional Protocol I concerning protection of victims of international armed conflict). The soldier has to ensure that he does not resort to indiscriminate attacks, and he always needs to distinguish between military and non-military objectives. But practically, if the soldier is facing a group such as the LTTE, there are enormous difficulties here since terrorist groups use homes, hospitals and schools to train terrorists and perpetrate further acts of terrorism. Consider the difficulty that the soldier who has firm intelligence reports to conclude that that home or hospital or school under scrutiny is a military target and one which is used by terrorists.

These examples would suggest that States need to think seriously of reforming certain laws, in a way current difficulties faced by the soldier are taken into account. Importantly, States should also be mindful of the importance of concluding a comprehensive legal framework which covers all aspects of counter-terrorism, especially in an era as this when States face many problems due to terrorism. And in this regard, one part of the argument raised by Dr. Dhanapala contains much truth.

Internal armed conflicts and the application of IHL

However, whatever these problems may be, there should not be any doubt concerning the application of IHL, the Geneva Conventions in particular, in internal armed conflict situations. As the Appeals Chamber of the ICTY held in the Tadic case (1995), IHL should apply to all conflicts, international and internal; some important reasons for such an application being the cruel and protracted nature of such conflicts, the frequency of such conflicts and the importance of human rights protection during conflict situations.

To argue, like Dr. Dhanapala has argued, that the current body of international laws should not apply just because it is inadequate to cover present realities of armed conflict is a very dangerous argument; an argument that no democratic state could ever make. As Antonio Cassese once pointed out, certain rules of conduct of hostilities in international armed conflict have been extended, on a gradual basis, to internal conflicts as well. It is necessary to understand the logic behind this extension; as the ICTY in the Tadic (Interlocutory Appeal) stated, “What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife.” It follows then that the humanitarian laws that would be applicable in international armed conflicts should also apply in cases of internal armed conflicts.

It is here that one should also understand that while the present body of IHL has its weaknesses, it still plays a most important humanitarian purpose. The Geneva Conventions, in this regard, play a vital role in ensuring that there is at least some minimum protection of civilians who are trapped in conflict situations. Article 3 (quoted above) of the Geneva Conventions, it has been noted, constitute the ‘minimum yardstick’ applicable to armed conflicts of any nature; as was held by the ICJ (Nicaragua (merits), 1986).

And in this regard, it is vitally important that one approaches this issue not only from the perspective of the soldier, but also from the perspective of the innocent civilian. How preposterous would it be if a State is to argue that such international humanitarian norms do not apply in internal conflicts? What minimum relief would the innocent civilians have? Would the civilian see any difference between the terrorists who deny their basic freedoms and the State which argues that even that ‘minimum yardstick’ is not applicable? This is one of the fundamental reasons why Dr. Dhanapala’s argument is extremely dangerous. It is an argument that is made in order to evade responsibility for the mistakes that soldiers could make. This is also an argument which can be made to perpetrate indiscriminate killings; a course of action that terror groups resort to, not armed forces of a democratic state. This is also the kind of argument that the disgruntled and obnoxious officials of the US State Department can and do make, and certainly not one a distinguished former diplomat of Sri Lanka and the UN could ever make, in all seriousness.

‘Sri Lanka as a Member of the UN’

Ironically, one needs to revisit the title of the 2007 keynote address of Dr. Dhanapala and consider what Sri Lanka’s role as a Member of the UN would be if Sri Lanka is to make the argument that IHL did not apply to the conflict that concluded in May 2009 and that its armed forces were not bound by any international laws; the argument that Dr. Dhanapala has made recently.

President Rajapaksa, it should not be forgotten, has held a different view on this matter, for he has stated in his speeches that the task of his brave soldiers was difficult because they were carrying the gun as well as the Declaration of Human Rights when going into the battlefield. While this may be political rhetoric, undoubtedly, one needs to appreciate the deeper message here; i.e. that the soldiers were mindful of the international norms and standards that had to be followed, of the importance of treating civilians humanely, of the importance of protecting human rights, of the importance of all the international humanitarian obligations that soldiers of a State had to fulfill. That is the correct approach; and to retract now and argue that IHL did not apply to the Sri Lankan conflict would be a disgrace to a country and the brave armed forces which defeated the LTTE.

Sri Lanka, as a Member of the UN, should always maintain that all important moral high ground, however difficult that task would be. Sri Lanka, as a Member of the UN, should still be mindful of former UNSG Kofi Annan’s Report ‘Uniting Against Terrorism’ (A/60/825) in which it is stated that in the fight against terrorism we “must never sacrifice our values and lower our standards to those of the terrorists. International cooperation to fight terrorism must be conducted in full conformity with international law, including the Charter of the United Nations and relevant international conventions and protocols. It is an obligation of States to ensure that any measures taken to combat terrorism comply with their obligations under international law, in particular human rights law, refugee law and international humanitarian law.” (para 112, emphasis added).  States Members of the UN resolved to recognize the importance of this message when the General Assembly adopted a resolution titled ‘The UN Global Counter-Terrorism Strategy’ (A/Res/60/288), on 20 September 2006.

It should also be remembered that even the numerous conventions on the suppression of terrorist acts highlight the importance of the rights, obligations and responsibilities of States and individuals under international law, in particular international humanitarian law (for example, Article 19(1) of the 1997 International Convention for the Suppression of Terrorist Bombings).

One only hopes that the press has misquoted Dr. Dhanapala, and misquoted badly. If not, it is rather alarming to note how Dr. Dhanapala, a former Under-Secretary General of the UN, seems to have forgotten the importance of IHL, and argues that a state should not be bound by international laws when fighting a terrorist organization.

(Kalana Senaratne, LL.B, LL.M (University College London), is currently a postgraduate research student at the Faculty of Law, University of Hong Kong)

Editors note, 30 August 2010: Jayantha Dhanapala’s response to the media reportage of his submissions was exclusively published on Groundviews here.

• Official transcript of LLRC oral submission by Mr. Jayantha Dhanapala
• Jayantha Dhanapala responds to erroneous and selective media reports of his submission to LLRC
• The Government must uphold the Rule of Law
• Dr. Dayan Jayatilleka on history of power-sharing in Sri Lanka and the 13th Amendment
• Violating the Madhu Sancuary – Some brief thoughts

Currently, Muslim villages in Mannar are completely decimated, with almost no trace of the once robust and lively dwellings. Where once tall buildings stood and people mingled, trees have grown, and elephants and snakes have made their dwellings. As in the case of the men we met, the onus of restoring their lives is on those returning, even though restoring translates to transforming a jungle into a village. Assistance from the government is meager and slow in delivery. Institutions move at a slow pace and are handicapped in resources and efficiency. Therefore, severing links with Puttalam, the area  that embraced the Northern Muslims when they were ‘orphaned’ has to be postponed.  Sometimes, people have to earn in Puttalam to support agricultural work in Mannar, and until the ‘men’ of the families build suitable structures that are comfortable and secure for living, the women have to remain in Puttalam.  In this regard, the opening of the road connecting Puttalam and Mannar, has been a great support to the Northern Muslims.

However the opening of the road has become a controversial issue. Prior to the war, access to this road was restricted to private vehicles, and was commonly used by residents of Musali and Mannar as it significantly reduced travel time between Mannar- Musali and Puttalam.  The direct road shrinks the distance from Puttalam to Mannar from 210 km to 143km, from Puttalam to Musali from 185km to 100km and from Puttalam to Marichchukaddi from 235km to 77km.  Moreover  expelled Northern Muslims from other districts  also  benefit from this road, as it also connects to the Jaffna Road. Citing the need to preserve the Wilpattu National park, through which this road passes, wild life enthusiasts argue against the opening of the road. While conservation of wild life is an important consideration, the welfare of a marginalized group of people who have suffered immensely for over two decades needs immediate attention. As stated above, the road would greatly reduce the inconvenience the returning Northern Muslims would have to undergo when travelling to and from Mannar and adjacent areas.  In the context of the potential harm to the wild life of the national park, the commission appointed to probe into the expulsion of the Northern Muslims recommends a mechanism where access is granted by special permission to residents of adjacent areas for private vehicles only. Additionally, they suggest that access could be granted on a limited basis and that too at a cost, which would further restrict the use of the road. If entry to the road is barred, the people from Musali (an area immediately North of Wilpattu National Park) especially would have to travel North to Medawachiya and then travel back South to their area (Daily Mirror 25.06.2010).

The Northern Muslims were expelled with barely 48 hours notice in Mannar and just a couple of hours notice in Jaffna. They arrived in Puttalam with at most, a shopping bag full of possessions. Along with the psychological trauma of being expelled, they had to endure much hardship during their time in Puttalam. Two decades later, some of them are happy with what they have accomplished in spite of the suffering they underwent as displaced people; their hardwork and efforts have yielded material assets for themselves, as well as intangibles such as hope for a better future for their children through good education. However, for some, home is still in the North. Therefore, whatever may be their material possessions in Puttalam, they are still longing to return and resettle in their original places. The lack of assistance, both financial and non-material, is a significant barrier. Having invested their money in assets in Puttalam, they do not have cash to spend on starting life a new in the North. Building a second or third house during their life-time, is not an option for them, although housing remains an essential requirement. Therefore aid from the government or other organizations is a great need at present.

For some others, home is still the North, yet, the attachment, at this point, is only emotional. The assets they have acquired, and the lifestyle they have adapted in Puttalam, are too much to abandon. The thought of starting life from ground zero in a place where war has razed all signs of human habitation is enough to eliminate the option of returning. Poor quality of schools and availability of teachers, the severe scarcity of water and the dearth of economic opportunities add to their decision to stay back. Furthermore, some evicted Muslims are wary of their Tamil neighbours whose supposed representatives evicted them, in an act of ‘ethnic cleansing’ and assert that they do not want to make themselves vulnerable, and ‘at risk’ of being hurt again. Social dynamics that play an important role in a society have been severely disturbed and shattered. Trusted neighbours and friends who formed the community are no more. Even if people resettle in the presence of suitable infrastructure, the absence of a community that they could trust, make people wonder if resettling is a wise decision.

The twenty years that have lapsed since the expulsion has changed the landscapes in many different ways. For the displaced and the officials concerned, solving land issues is a major challenge. At the height of the war when there were no signs of peace, and life in the camps was cruel, some of the Northern Muslims sold their land, for much needed cash with the hope of a better life. Since the war is history now, those who sold their land are landless, and realize that the prices at which they sold their land are way below the actual value. However, they are unable to reverse the transactions and reclaim their land or obtain a better price for their assets already sold. They feel, therefore, that they sold their land under duress, and are entitled to compensation. In the last two decades, the population has expanded and as a result, a shortage of land in the North is inevitable, and this creates a road block for ‘return’. A filtering process of some form is necessary to determine who returns and who stays back. The people also request that the government distribute land to enable them to make an easier transition to the North.

Some who own land in the North find it difficult to claim it because of the lack of deeds and because physical boundaries and landmarks have erased or blurred over time. Due to the adversities faced during the expulsion, the journey from the North and life in displacement, some have no documents to prove ownership. Some that had permits and the promise of deeds at the time of the expulsion are unsure of their status. In some cases, authorities abuse their power and manipulate ownership and boundaries of land according to  personal interests thereby giving rise to conflicts among the communities. Many Northern Muslims felt that other than in exceptional instances, many local level representatives of government authorities were unsympathetic to their aspiration to return.

Although the practice of giving dowry was not common to Muslims of all Northern districts, as a consequence of the expulsion and the blending of various groups, it has become a popular practice. This increases the need to solve problems related to boundaries and ownership of land, as marriages are dependant on dowry. Some are adamant to resolve the resettlement process, not for their own return, but to have clear ownership of land, so that they can offer the land as dowry and arrange a marriage for their  daughters.

Due to security reasons, the state has claimed land in various parts of the North and demarcated ‘high security zones’. Some of this land is private land, and some of it is state property with important public institutions within its boundaries. For example, in Silavatura, the hospital, school and Pradeshiya Sabha building are trapped in the high security zone barring access to civilians.

The state policy for return and resettlement is not clear, it varies from district to district, and provides no structured framework within which all institutions and people can act. Government officials of some districts have been instructed to give land to those displaced in the recent years, neglecting groups such as the Northern Muslims who were displaced much before that. The expelled people sometimes compare themselves to those affected by the Tsunami.  They feel that their suffering was of a similar magnitude, yet, the compensation and assistance was much less. In the last twenty years only two housing projects have been put in place by the state for the displaced; the mid 1990s initiatives under Minister M.H.M Ashraff and the current World Bank housing project. Communication lines between the state and displaced civilians are also very weak. In some instances, the people are unaware of the status of their original land in the North (whether or not it is demined and if it is ready for habitation). The lack of assistance from the government for resettlement is one of the biggest complaints the people have. Rations, which is the only form of stable assistance they have had from the government, since expulsion, has also come to indicate the ‘status’ of the people. There are currently many problems associated with return and the access to rations. Those who are interested in returning have been informed that the first step is to discontinue rations in Puttalam.  After they cut off access to rations in Puttalam, accessing rations in the North has become a huge problem. Some who followed these instructions complain that it has been a year since, and they are yet to receive any form of alternative assistance  in their hometown in the North.

Living with disappointment, hurt, betrayal, sadness and despair, the end of the war ignited a spark in the hearts of the displaced Northern Muslims and offered them a light of hope. Yet, the flame is faint and quivering. The people who fill themselves with the grandiose plans and miraculous transformation of lives that   politicians spew generously on podiums become frustrated when the corresponding institutions stay mute. In the presence of inaction on the part of authorities, the people  take it upon themselves as the men I spoke of in the first paragraph did, and utilize the remnants of energy, hope, and resources that are left after twenty years of suffering.

Words of hope are not sufficient for people who have grown old, and have lost their childhood/youth in war and displacement. Action is needed, and it is needed now. Pointing the arrow of the compass towards the North, and claiming that it is ready for resettlement is not sufficient. The three phases of the expelled Northern Muslims’ lives need to be reconciled; the first phase of life in the North, where they belonged, followed by the life they were forced to adapt, and the new that is yet to come, either in their original place of birth, or elsewhere where they can set down roots for their futures and the generations yet to be born need to have smoother and more comfortable transitions.  Caught between the old and the new, with no comfort from either, their present is insensitive. The war is over, but where do they go from here?

Anushka Fernando is a researcher for the Citizens’ Commission on the Expulsion of Muslims from the Northern Province by the LTTE in October 1990.

• Citizen’s Commission: Expulsion of the Northern Muslims by the LTTE in October 1990
• Forgotten IDPs from the North
• The Muslim question and resettlement of Muslim IDPs in post-war Sri Lanka: Two comprehensive interviews
• The divide between Muslims and Tamils: Perspective of an IDP
• Feature story: Cries for help from Puttalam

Interview III – Tissa Jayathilaka from Young Asia Television on Vimeo.

In this interview, Tissa Jayatilaka speaks about the Ceylon of his childhood and the experience of being part of the last batch of students enrolled at the University of Ceylon. Tissa also talks about the tumultuous period during the 1970s, the roots of the conflict and flags the opportunities as well as challenges facing post-war Sri Lanka.

Finally, Tissa speaks of academia, literature and his experience as one of the first members of the Council for Liberal Democracy, a think-tank that was founded in 1981, and of his friendship with Dr. Chanaka Amaratunga, who was the founder of the Council for Liberal Democracy and the Liberal Party of Sri Lanka. Tissa also flags the concerns with liberalism in Sri Lanka and the liberal democratic movement.

Tissa contributed to the special edition on Chanaka Amaratunga compiled and published on-line by Groundviews. His article can be read here.

• The legacy of Chanaka Amaratunga and the future of liberalism in Sri Lanka
• Remembering Chanaka
• IN MEMORIAM DR. CHANAKA AMARATUNGA
• THE TRAGIC TRAJECTORY OF CHANAKA’S LIBERAL PROJECT
• Outrageous process and substance: The proposed 18th Amendment to the Constitution

No one disagrees with the proposition that the practice, not confined to the Australians or the South Africans, of making sustained appeals by a fielding side with the intention of pressuring umpires into wrong decisions is an awful distortion of the spirit of the game. We can also agree that the mixture of verbal intimidation against opponents and ingratiating badinage with officials that so often characterises the on field behaviour of its practitioners is particularly pernicious. It is only made worse by the disingenuous defence of these transgressions by sections of the cricketing commentariat, based on such cultural idioms as ‘a bit of banter’, competitiveness, ‘mateship’ and, unconvincingly, even sportsmanship. How this kind of borstal behaviour can be squared with the conception of mateship, at least in the sense it was articulated by the poet Les Murray and considered for inclusion in the preamble to the Australian Constitution in the referendum of 1999, remains to be seen.

However, to suggest, as Michael does, that this is a question of which wrong is worse is to ask the wrong question. In his letter as well as in private correspondence with this columnist, Michael has made clear his condemnation of the behaviour of Randiv and Dilshan and his endorsement of the swift disciplinary action taken by the Board. But he laments that similar outrage has not been directed at the practice of cheating by abuse of appeals. This is not only irrelevant to the matter at hand (how can two wrongs make a right?); it is also groundless.

Michael clearly posits that the practice of vexatious appeals is a more serious transgression (inter alia, ‘downright cheating’), than the gratuitous no ball deliberately bowled by Randiv at the instigation of Dilshan (a mere case of ‘tweaking the rules’). How can this be? Both are clear violations of the spirit of cricket, and had his condemnation been of a general nature accepting the approximate moral equivalence of the two violations, we might have gone along with him. Purely for the sake of letting the matter rest, that is the position I would take.

But Michael goes further in making a normative distinction between the two wrongs which, I would argue, is based on an arbitrary and untenable differentiation. In the determination of fault in this ethical conundrum, the key factor is intentionality. That the no ball bowled at Sehwag was intentional and by common design has been established. Randiv has apologised to Sehwag and both he and Dilshan have been punished. With regard to vexatious appeals, let us narrow the cases down to those not involving genuine doubt, but those in which the fielding side knows reasonably well that the batsman is not out, but makes a loud and sustained appeal regardless, with the intention of applying pressure on the umpire. In both cases, therefore, there is a clear intention to cheat. If like Michael, one must express a preference for which case represents the worse offence, it would appear that the act that executes the intention which may be carried out independently of an intervention by a third party would be the one deserving of more censure. Randiv formed the intention to commit an a priori wrong, at the instigation of or with the connivance of Dilshan, and then in fact carried it out by deliberately overstepping the popping crease. In the case of a vexatious appeal, all that the potential cheaters can do is to apply pressure on the umpire (too much of which also exposes them to penalty), who is these days a professional trained and qualified to handle such situations. Moreover, unlike a no ball which is an a priori wrong established by the Laws of Cricket, appeals per se are very much a legal part of the game, indeed a right available to both sides. It is only the abuse of this legal right that attracts legal penalties and ethical censure. Thus on the basis of intentionality, it would seem that a rational position apropos the relative gravity of the two cases would lead to the conclusion that Randiv’s violation is the graver.

Michael’s present position is consistent with a critique he has repeatedly made in his cricket writing with regard to on field aggression, and he has done so by reference to the different cultural idioms and constructs that are implicit in the behaviours and attitudes of white players on the one hand, and those from South Asia on the other. He has argued that the culturally specific assumptions about what is acceptable in the blokeish dressing rooms of Australia, England, New Zealand and South Africa is completely at odds with those of the South Asian nations. If I recall correctly, an example Michael has given is of the use of a particularly unedifying English swearword, which is not only offensive generally, but because of its invocation of motherhood in conjunction with sexual intercourse, is particularly violative of Asian cultural mores (this is at one level is a touchingly innocent argument: during his childhood among the Galle ramparts, Michael seems not to have encountered the infinitely more creative uses of this motif in the Sinhalese argot of the Southern coastal belt). The result, Michael says, is a level of mental intimidation and distraction that materially and unfairly affects performance.

This is unpersuasive. Native cricketers of South Asia during the colonial and immediately post-colonial period were mostly anglicised pukka sahibs who were more at home in a county cricket club than anything to do with their socially subaltern compatriots. It was not only the Indian princelings among colonial cricketers who were socially and intellectually superior to working or middle class white players, which thus inverted imperial political structures upon the cricket field at least. In the kind of cricketer of that era exemplified in F.C. de Saram, for example, it is difficult to imagine a wilting flower, and even more difficult to imagine any inherent ethno-cultural or linguistic disadvantage in an exchange of colourful contumely.

To be sure, in the Sri Lankan case at least, there has been a class transformation in the cricketing establishment in line with the democratisation of culture and politics we have seen since 1956. The national cricket team is more representative of our society nowadays, and this means that, notwithstanding such fluent exponents of stylistic elocution as the present captain, English is not the mother tongue of the majority. It may also mean that their cultural reference points are less westernised than their predecessors. I do not think, however, it follows from this that these players are babes in the wood of international cricket.

The professionalisation of cricket especially after 1996 makes it a path of instant socioeconomic upward mobility, with all the cultural transformations that that brings to the individual. Sri Lankan cricket has mirrored the transformation of political power in the country with the exit or relegation of the ancien regime of old schools and clubs and its replacement with a new power elite that emerged after 1956. This has been an intensely political process, and the regime change within cricket was something wrought by the deliberate and capable exercise of power by people like Arjuna Ranatunga, who is in more ways than one an exemplar of the post-1956 elite. In their approach to power relations, therefore, modern players are not so much noble savage or innocent villager as politically literate free agents, who understand the value of power and know how to use it. It is this that makes them equal players in the parallel power game of sledging and brinkmanship that characterises an international cricket match these days, and Sri Lankan players are second to none in the business of vociferous appeals and sharp practice.

Moreover, there is an unappealing subtext of small island jingoism in Michael’s position, which in many ways echoes the prevailing political zeitgeist of Sri Lanka in the Chintana era. The reference to vexatious appeals by the Australians and South Africans implies that this is an unacceptable practice indulged in mostly by white players, and furthermore, the complaint that those transgressions are not met with the same extent or depth of condemnation as one committed by a poor Asian. I would not go so far as to draw an analogy here, but there is a conspicuous comparison between this and how the Sri Lankan State reacts to international criticism, but that is another conversation.

More to the point, we cannot achieve respect either for the positive rules nor the more amorphous spirit of cricket, by complaining about the conduct of others and glossing over our own. No individual country has a monopoly in the determination of how cricket should be played, but it is worth pointing out that the Sri Lankan cricket team has won the ICC Award for the Spirit of Cricket twice. The Board acted correctly in swiftly disciplining Randiv and Dilshan, and Michael Roberts was right in endorsing those actions. I wish, however, that he resisted the urge to ethical judgement in the pursuit of some notion of misplaced, if sincere, paternalist patriotism. Kant, not Carlyle, should guide us here.

• B is for balls (and bowls)
• Misguided cultural policing in Sri Lanka: Where’s the morality amongst politicians?
• Headlines
• Does cricket have a citizenship?
• A public apology to Michael Meyler