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