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Sri Lanka: A Mounting Tragedy of Errors

Report of a Mission to Sri Lanka in January 1984 on behalf of the International Commission of Jurists and its British Section, JUSTICE

by Paul Sieghart, Chairman, Executive Committee, JUSTICE.,
Published by the International Commission of Jurists and JUSTICE, March 1984

In this report, I am mainly concerned with the content and operation of laws which may put at risk the proper respect for the Rule of Law and the legal protection of human rights which Sri Lanka is bound under international law to observe and ensure to its inhabitants....it is necessary first to give an outline of the ethnic tensions which have been developing in Sri Lanka for some time, and which have evoked mounting violence in the period since the general election of 1977....

The Tamils see themselves as persecuted by the Sinhalese, and oppressed by a Government dominated by Sinhalese, dependent for its survival on the Sinhalese vote, and therefore concerned only for Sinhalese interests; even well-educated Tamils will speak seriously of a concerted plan of "genocide" against them....

The last outbreak of communal violence began on 24 July 1983. For day after day, Tamils (of both the "Sri Lankan" and "Indian" varieties) were beaten, hacked or burned to death in the streets, on buses, and on trains, not only in Colombo but in many other parts of the Island - sometimes in the sight of horrified foreign tourists. Their houses and shops were burned and looted. Yet the security forces seemed either unwilling or unable to stop it - indeed, in Jaffna and Trincomalee, some members of the armed forces themselves joined in the fray, claiming an admitted 51 lives. Seen from the Tamil point of view, either the Government had lost control of the situation, or it was deliberately standing by while they were being taught a lesson...

Communal riots in which Tamils are killed, maimed, robbed and rendered homeless are no longer isolated episodes; they are beginning to become a pernicious habit.

In many respects, the Tamils' response to these events, and to the more chronic discrimination to which they feel subjected, has been remarkably restrained....

It is these two specific Tamil responses, reflecting in very different ways the collective desire of the Tamil community to resist what they perceive as their oppression by the established authorities, which have in their turn led to the counter-measures adopted by the Government: a massive deployment of its security forces in the predominantly Tamil areas of the Island, and especially at the Elephant Pass army camp straddling the isthmus of the Jaffna peninsula: the Prevention of Terrorism Act of 1979; and the effective proscribing, through the Sixth Amendment to the Constitution enacted in 1983, of even peaceful and previously legitimate advocacy or support for the establishment of a separate Tamil State within the Island.

Preface

In 1981 the International Commission of Jurists (ICJ) published a report by Professor Virginia Leary on Ethnic Violence in Sri Lanka, which Mr. Paul Sieghart describes as 'essential reading' for a full understanding of recent events in Sri Lanka. A second edition of that report was published in August 1983, updated by the ICJ staff with a summary of subsequent developments, including the tragic outburst of communal violence in July, 1983.

Sri Lanka : Mounting Tragedy of Errors Paul Sieghart March 1984 International Commission of Jurists Shortly before this outburst occurred the ICJ, aware of the increasing tensions, approached the Sri Lanka Government with a view to sending another mission to the country. A few days before the events of July 24, the Government replied that it could not entertain such a mission. However, some months later President Jayewardene, in response to an inquiry, renewed an invitation he had previously made to Mr. Sieghart, the Chairman of the Executive Committee of Justice, the British Section of the ICJ, to visit Sri Lanka as a guest of the Government. Like the ICJ, Mr. Sieghart has over the years taken a keen interest in Sri Lanka, a country which, in spite of all difficulties, has persistently maintained since Independence a parliamentary democracy dedicated to upholding freedom under the Rule of Law.

During his brief visit in January 1984, Mr. Sieghart had unparalleled opportunities to discuss the present situation concerning the Rule of Law and the legal protection of human rights in meetings with President Jayewardene, the Ministers of Foreign Affairs and Internal Security, the Chief Justice, the Secretaries of the Ministries of Defence and Justice, the Additional Solicitor-General and others. In consequence, he has been able to set out authoritatively the Government's standpoint on many important issues.

The section of his report dealing with the law and institutions contains a clear analysis and critique of the constitutional provisions for the protection of human rights, the emergency legislation in force, the powers and role of the armed forces and police, and the independence of the judiciary. In particular, certain police powers under the Prevention of Terrorism Act, which has now been made permanent, are shown to be a serious violation of the Rule of Law and of Sri Lanka's obligations under the International Covenant on Civil and Political Rights. The same conclusion is reached in relation to the recent amendment of the Constitution which penalises anyone peacefully advocating separatism by depriving him of the right to be a member of parliament, to hold public office, or to engage in any trade or profession which requires a licence, registration or other authorisation.

Equally interesting and persuasive are Mr. Sieghart's reflections upon the wisdom and efficacy of the draconian measures the Government has introduced to deal, as it claims, with the terrorist activities of the minute organisation of Tamil extremists, the self-styled Tamil Tigers, which the Government itself estimates at only 25 to 30 hard-core members and no more than 100 or 150 on the periphery. He finds some of these measures to be counter-productive as well as being contrary to international law.

Although being at all times outspoken, Mr. Sieghart has confined his report and his conclusions to strictly legal matters, and when he has made judgments they are made strictly in relation to the principles of the Rule of Law and Sri Lanka's legal obligations. Like all questions of human rights they do, of course, deal with issues which are highly sensitive politically, but we trust that the Government and citizens of Sri Lanka will understand and accept that he writes as a friend of Sri Lanka over many years, seeking to remain objective and impartial insofar as that is humanly possible.

Two days before Mr. Sieghart's visit there began an extremely important series of all-party talks, which offer the best hope for a resolution of the long-standing conflicts which have plagued Sri Lanka with increasing frequency and severity since Independence. The International Commission of Jurists, like Mr. Sieghart, hopes that these talks, which are likely to be prolonged, may succeed in ushering in a new era for Sri Lanka. His report is published as a modest contribution to the process of understanding and reconciliation.

Niall MacDermott Geneva, March 1984

1. Introduction

The interest of the International Commission of Jurists in the observance of the Rule of Law and the legal protection of human rights in Sri Lanka (previously Ceylon) goes back over many years. As long ago as 1962, the ICJ expressed its concern over the enactment there of a Criminal Law (Special Provisions) Act, a statute which the very Court appointed under its own provisions courageously held to be unconstitutional later in the same year. On several occasions since then, the ICJ has expressed both praise and criticism of the actions of Sri Lankan governments, of all political complexions, in the field of its special concern.

My personal interest in Sri Lankan affairs began more recently. I first visited the country in 1976, and again in 1981, and met politicians, Ministers, Judges, officials, and practising lawyers. In May 1981, I wrote on behalf of Justice (the British Section of the ICJ) to the President of the Republic, His Excellency Mr. J.R. Jayewardene, to express concern about reports that a number of people had been arrested, that they were being held incommunicado without access to lawyers and without their families knowing where they were, and that there were grave misgivings about their safety. In reply, the President invited me to visit Sri Lanka as a guest of the Government.

At the time, I was unable to take up this invitation. However, in the following month Professor Virginia A. Leary, of the Faculty of Law and Jurisprudence in the State University of New York at Buffalo, USA, carried out a mission to Sri Lanka on behalf of the ICJ, which published her very comprehensive report under the title "Ethnic Conflict and Violence in Sri Lanka" in December 1981, and reissued it with a supplement by its staff in August 1983. In January and February 1982, an Amnesty International mission visited Sri Lanka; its report was submitted to the President on 7 February 1983 and published on 6 July of that year. In June 1983, Mr. Timothy J. Moore, Ll.B., a Member of the Parliament of New South Wales, Australia, visited Sri Lanka on behalf of the Australian Section of the ICJ, which published his report in the following month.

At the end of that month, there was another tragic outbreak of communal violence in Sri Lanka. Houses and shops were burned and looted, and there was much loss of life - some at the hands of members of the security forces. At its height, 53 Tamil political prisoners were murdered in two separate massacres in Colombo's Welikada prison. In November 1983, I wrote to ask whether President Jayewardene's invitation was still open. I was assured that it was, and accordingly I visited Sri Lanka for a further short stay of four days from 12 to 15 January 1984, on behalf of both the ICJ and Justice.

Notwithstanding the brevity of my visit, I was able to see many people at the centre of Sri Lankan affairs. The Protocol Division of the Ministry of Foreign Affairs was unfailingly helpful, and with very few exceptions I was able to interview everyone I asked to see: the President himself on two separate occasions, Ministers, Judges, and high officials. A list of these appears in the Appendix. All of them were most courteous, and answered my questions with as much candour as their official positions allowed, and sometimes more - even though I had made it clear that I did not wish to receive any confidences, and considered myself free to publish anything I was told. I was also able to meet many people outside Government; some in Colombo, some in Jaffna (where the Government transported me in an Air Force plane), and others outside the Island - none of whom had participated in, or would support, the use of violence for political ends. I should like to express my thanks to all of them for their help and co-operation in my mission.

Clearly, in four crowded days and as a foreigner, I was not able to investigate a wide variety of allegations and counter-allegations which have been made in various quarters about recent events in Sri Lanka. In any case, these ought to be investigated in the first instance by the competent institutions and individuals in the country itself, and later in this report I shall make certain recommendations to that effect.

There are countries where such institutions no longer exist, or where there is no one left whose findings could be sufficiently trusted. But Sri Lanka is not - or at least not yet - in that category.

It may be that what I have to say here will disappoint various interest groups, and perhaps also some individuals, in or out of Government, who have taken trouble to help me on this mission. If that is so, I shall naturally regret it. But in the last analysis I can only report my own observations and conclusions which, like the perceptions of any other individual, will necessarily be both selective and incomplete.

2. The Background

For a full understanding of the background to recent events in Sri Lanka, Professor Leary's report is essential reading, and Mr. Moore's report two years later also contains much useful information. Where possible, I have tried not to cover the same ground, but rather to bring their work up to date and to add my own findings, conclusions and recommendations. However, for anyone who does not have ready access to their reports, here is a summary of the salient facts.

2.1 First Impressions

Tourist brochures rightly describe Sri Lanka as an island paradise. It is blessed with a benign tropical climate, and much fertile land. Apart from the fabled palm-fringed beaches, it has cool hills, great areas of forest, much wild life, a profusion of ancient monuments, many towns and villages of great charm, as well as a modern airport and an increasing number of well-situated and comfortable hotels.

Sri Lanka is blessed in other respects too. Its civilisation is at least as old as Europe's. Buddhism arrived there around the third century BC, and founded a lasting tradition of courtesy, friendliness and tolerance. Statistically, the country is still very poor: according to the World Bank,[1] the gross annual per capita product in 1981 was a derisory US$ 300. But such figures can be misleading, as they can only count goods and services that are commercially traded, and leave out all private consumption such as of that of the subsistence farmer, and all local barter, which account for much of the real production and exchange in such a country. Though far from rich by Western standards, Sri Lanka displays none of the grinding poverty, or the massive urban or rural slums, which are such a conspicuous feature of many other developing countries. Instead, what the tourist will see is a land of friendly, healthy and well-fed people, and the bustling social life of the streets and markets. Though smiling children may ask him for "school pens" with some persistence, it will be rare for him to see a beggar or a cripple.

2.2 Legend and History

In Sri Lanka, legend and history are often difficult to disentangle. Before either the Sinhalese or the Tamils arrived there, there must have been some aboriginal inhabitants, whose modern descendants may be the few primitive Veddha tribesmen still to be found in the forests of the South-East. The Sinhalese believe that their own ancestors arrived in the first millenium BC. Their language belongs to the Indo-European (or "Aryan") group, and they are therefore apt to think of themselves as belonging to the Aryan "race" - though in fact, outside the Nazi imagination of half a century ago, there is no such thing. Successive waves of Dravidian Tamils also arrived over the centuries, conquering parts of the Island, settling there, and establishing independent kingdoms. In the early 16th century AD, the Portuguese came and set up trading posts, expanding from these to colonise the coastal areas. In the following century, the Dutch ousted the Portuguese from these places.

Neither the Portuguese nor the Dutch ever penetrated far inland. But at the end of the 18th century, the British in their turn ousted the Dutch, and by a treaty of 1815 made with the dissident nobles of an unpopular King of Kandy in the central hill country, they became the first Europeans to bring the whole of the Island under their control. It is noteworthy that this treaty contained one clause guaranteeing respect for "the religion of Boodoo", and another guaranteeing freedom from torture, of which the ousted King had evidently been guilty.[2] These were precursors of guarantees for human rights in the Island, but they were by no means the first; for the notions of the dignity of the individual, respect for minorities and the rights of others, and the fair and impartial application of laws, are to be found deeply embedded in both Buddhism and Hinduism - which after all spring from the same roots.

Before the British arrived in Sri Lanka, relations between the Sinhalese and the Tamils had alternated between peaceful coexistence and intermittent warfare. Feudal kings and lesser nobles in each group were apt to take up arms against each other, as well as against others of their own group, to advance their particular interests. But these skirmishes eventually came to an end under British rule: when the Tamil province of Jaffna in the North was merged in 1833 with the other British administrative units into a single Government of Ceylon, the whole Island came under a common administration for probably the first time in its history, and so remained until Independence in 1948.[3]

2.3 Independence and After

This independence was not the outcome of a bitter and bloody liberation struggle as in so many other colonial territories, but was achieved by peaceful negotiations. Elected members had served in the Legislative Council since 1911, and universal adult suffrage for elections to the State Council had been in effect since 1931.

A report by the last British Governor, Lord Soulbury, led to the grant of Ceylon's first independent Constitution by an Order in Council taking effect on 4 February 1948, which has ever since been Sri Lanka's national day. For the next thirty years, Sri Lanka strove to follow the Westminster Parliamentary model, with more success than some other members of the "new" Commonwealth. Almost every general election has resulted in a change of government.

A new Republican Constitution was introduced by a Constituent Assembly in 1972, but maintained the Parliamentary system. There have only been two attempts (in 1962 and 1971) to seize power by force, both mounted against the administration of Mrs. Sirimavo Bandaranaike's Sri Lanka Freedom Party (SLFP). Both proved unsuccessful - though the second induced her to rule for nearly another six years under emergency powers, holding some thousands in detention at a time. At the last general election in 1977, Mr. J.R. Jayewardene's United National Party (UNP) was returned with an overwhelming majority, taking 140 Parliamentary seats out of 168.

These two parties have alternated in power in Sri Lanka ever since Independence. Very roughly, the SLFP favours state intervention, subsidies, and a high level of social services, especially in the fields of health and education; the UNP favours liberalisation, the dismantling of unnecessary State controls, and the encouragement of free enterprise. Neither of the parties is extreme in these respects, and each accepts the principle of a mixed economy, though in rather different proportions. The favourable effects of both these policies are visible throughout the Island: at 85% or more, adult literacy is one of the highest in the developing world, and rivals that of many much richer countries; so does an expectation of life at birth of 69 years, and an infant mortality of only 37.7 per thousand. At the same time plantations, farming, industry, trade and commerce all appear to flourish remarkably well.

2.4 Recent Events

From that general survey, I must now turn to the matters with which my mission was more specifically concerned.

After almost six years of emergency rule under Mrs. Bandaranaike, President Jayewardene evidently began his first term of office with a positive distaste for it. Soon after he came to power in 1977, he made the following speech in Parliament on the occasion of the repeal of one of the previous administration's more illiberal Acts:-

"When you have these powers hidden away somewhere, in some wardrobe or closet, one feels like using them. I do not want that temptation in our Government. When these are repealed, all the laws that will be operative in Sri Lanka will be normal laws. No man can be locked up by the police for more than 24 hours. He must be brought to court ... This is the only piece of legislation that now exists on our statute book under which the police can keep a man indefinitely without any recourse to advisory boards or to anybody except the Criminal Justice Commission, which never goes against the advice of the police. For days and months they can be kept, they can be harassed. When you are arrested by the police under the normal law you are not taken to this place or that place ... There are legitimate and recognised police stations, there are legitimate and recognised prisons and jails. Under this law the Minister can declare any place to be jail ... All such powers will be done away with once this Bill is passed."

Those were fine words, and there is no reason to doubt that they were sincere. Unfortunately, however, the performance of President Jayewardene's administration has in the event not lived up to this promise. True, emergency rule has only been invoked on six occasions since it came to power, and on most of those there was a clear case for doing so: indeed, on one of them it was accused with some justification of waiting too long before using emergency powers to quell some very unpleasant communal violence. But since taking office in 1977, the President and his overwhelming majority in Parliament have introduced the following new measures:-

(1) A new Presidential-style Constitution, adopted by Parliament in 1978 (after earlier amendment of the old one) without any endorsement by referendum, which confers very wide executive powers on the President and renders him immune from legal proceedings, both in his official and his private capacity, while he holds office (see section 3.3 below);

(2) A Special Presidential Commission of Inquiry set up under a new law of 1978, which retrospectively found Mrs. Bandaranaike and some of her followers guilty of "acts of political misuse or abuse offences under any law) during her administration, whereupon Parliament stripped them of their civic rights, so depriving them of the right to hold or campaign for public office, or to support anyone else who did;5

(3) The Prevention of Terrorism (Temporary Provisions) Act of 1979, which conferred on the Executive powers of detention, without charge or judicial review and without access to relatives or lawyers, as well as other powers, far more sinister even than those castigated in the President's speech less than two years before, and which was made permanent rather than temporary in 1982 (see section 3.2 below);

(4) The Third Amendment to the Constitution of 1982, which enabled the President to be re-elected (in the event by a majority of 52.9%, while Mrs. Bandaranaike was still prevented from standing against him) for a second six-year term, before the first had expired;

(5) The Fourth Amendment, also of 1982, under which the life of Parliament was extended for a further six years without any general election (which would, under the new Constitution, have been the first to be conducted by proportional representation), but by a vote of 54.66% in a referendum held under emergency rule, during which some important opposition printing presses were sealed, and a number of publications were banned;

(6) The Sixth Amendment, passed in the immediate aftermath of the communal violence in the summer of 1983 and during the next period of emergency rule, which has effectively excluded the remaining largest opposition party from Parliament (see section 3.5 below).

In this report, I am mainly concerned with the content and operation of laws which may put at risk the proper respect for the Rule of Law and the legal protection of human rights which Sri Lanka is bound under international law to observe and ensure to its inhabitants, and I shall therefore have little more to say about items (2), (4) and (5) in this list, which are predominantly matters of politics. But in order to understand why President Jayewardene and his Government have felt impelled to undertake the others, despite the good intentions announced on coming into office, it is necessary first to give an outline of the ethnic tensions which have been developing in Sri Lanka for some time, and which have evoked mounting violence in the period since the general election of 1977.

2.5 The National Minorities

Of Sri Lanka's total population of around 15 million, some 74% are Sinhalese, a little over 18% are Tamils, and about 7% are "Moors", who claim descent variously from Arab traders or Indian Muslims. There is also a small group of Malays, as well as a few "Burghers" who claim Portuguese or Dutch ancestry.

Within these groups, there are important sub-groups. The Sinhalese divide themselves into a low-country and a slightly smaller Kandyan (hill-country) group, while around 70% of the are described as "Sri Lanka" Tamils, the rest being called "Indian" Tamils, or Tamils "of Indian origin". The for the latter distinction is the fact that the so-called are the descendants of indentured labourers brought to the Island by the British in the 19th and early 20th centuries to work in the new plantations, first of coffee and later of tea, in the central hill country, while the ancestors of the "Sri Lanka" (or previously "Ceylon") Tamils arrived in the Island many centuries earlier. The label "Indian" or "of Indian origin" for one of these groups is in fact profoundly misleading, since all Tamils are descended from people who originally came from India - as, come to that, are all Sinhalese.

The Sinhalese are concerned to differentiate their origins from those of the Tamils by claiming that they came originally from North India, and not from the South, which may well be true; but how they arrived in the Island is a matter of legend rather than history. Their legend has it that they came by sea, but it is quite as likely that they in fact came overland, by way of South India. Likewise, the Tamils can hardly have sprung into spontaneous existence in South India. If one goes back far enough, just about everyone's ancestors must have come from somewhere else.

Nor are there any true racial distinctions between these two communities - that is, genetic differences which are objectively ascertainable. They do not differ in size, shape or physiognomy; their hair is uniformly black, and either straight or wavy; their eyes are dark; and their skins range through many shades of brown. (I have myself heard one Sinhalese refer to another as "black as my hat".) A foreign visitor certainly cannot distinguish between Tamils and Sinhalese, and even Sri Lankans themselves are forced to admit under pressure that they cannot make reliable distinctions by physical appearance alone, but go largely by dress, speech, and other more subtle "acquired" indicators.

But although there are no strictly racial differences between these two communities, there are others which give each of them a strong sense of collective identity. They have different cultures, and different tastes in food and clothing. The Sinhala language is quite different from the Tamil one, and so are their respective scripts. In Sri Lanka, Buddhism is to all intents and purposes unique to the Sinhalese, and Hinduism to the Tamils. But there are also over a million Christians in both communities, of whom about 80% are Catholics; and both Sinhalese and Tamils have a caste system, though Buddhists in other countries normally do not.

Geographically, the Tamils in 1981 constituted around 86% of the population of the Northern province, centered on the Jaffna peninsula, and around 41% of that of the Eastern province, which includes the ports of Trincomalee and Batticaloa. In those two provinces, the Sinhalese population was only 3% and 25% respectively - outnumbered in the Eastern province not only by Tamils, but also by a 32% proportion of Moors. But many Tamils are to be found outside those two provinces: in 1981, for example, their proportion in the Colombo administrative district was over 11%, and at that time most of the "Indian" Tamil community was concentrated in the central highlands.

One of the most striking features of ethnic relations in Sri Lanka is that members of each of these communities are apt to see themselves as an oppressed minority. That seems at first sight startling in the case of the Sinhalese, who after all constitute nearly three quarters of the population.

But to many of them, "the Tamils" are not confined to the 2.7 million in the Island: these are seen as forming only an advance guard of the 50 million or so Tamils in the Indian State of Tamil Nadu, just a few miles across the Palk Strait, at the other end of the chain of shoals and reefs known as Adam's Bridge.

Both Tamils and Sinhalese are apt to invoke Northern Ireland or Cyprus as parallels of their circumstances, but in each case the parallel is false: to make the situation truly comparable, one would have to imagine (if one could) Northern Ireland without Great Britain, or Cyprus without Greece.

The Tamils see themselves as persecuted by the Sinhalese, and oppressed by a Government dominated by Sinhalese, dependent for its survival on the Sinhalese vote, and therefore concerned only for Sinhalese interests; even well-educated Tamils will speak seriously of a concerted plan of "genocide" against them. In their turn, some Sinhalese are possessed by an atavistic nightmare of being driven into the sea, with no other homeland to go to, by a massive horde of 50-odd million Tamils: and even well-educated Sinhalese will construct fanciful scenarios of the State of Tamil Nadu forcing the Union of India, by threats of secession, to invade Sri Lanka in defence of the Tamil interest.

Such fears are plainly irrational and lack any real foundation, but they deeply pervade some sections of the population, and an appreciation of them is essential for any understanding of the roots of ethnic conflicts in Sri Lanka today, which lie deeply buried in emotional anxieties, and the misperceptions of fact which necessarily flow from these.

Among those misperceptions is a widespread belief, held by Sinhalese and Tamils in equal measure, that the other group enjoys some special and inequitable privileges. For this too there is, with one exception, no foundation in fact. A recent discussion paper by the respected and independent Marga Institute[6] shows that there are no statistically significant differences between the two communities in any of the critical social and economic indicators - infant mortality, nutritional status, life expectancy, literacy rate, educational index, average income of households, ownership of consumer durables, or unemployment rate. In none of these respects is either of the two communities collectively disadvantaged in relation to the other, and the grievances voiced about them are in fact quite illusory.

The single exception is in the provision of tertiary education. For climatic reasons, the traditional Tamil lands of the North and East are less fertile than those of the rest of the Island; farming and fishing alone have therefore never sufficed to maintain the Sri Lanka Tamil community; and as a consequence there has been greater pressure among them than among the Sinhalese to train for white-collar jobs. That pressure, combined with the activity of some Christian missionaries during the British colonial period, led to much greater provision for higher education in the predominantly Tamil Jaffna peninsula, both in universities and in vocational institutions. As a consequence, Tamils obtained a disproportionate share of administrative, professional and clerical jobs in the British administration, so understandably evoking the envy of the Sinhalese. Some time after Independence, the Government sought to restore the balance, first by a system of "standardisation", and more recently by a "quota system", to regulate admissions to institutions of higher learning. Not unnaturally, the Tamils have perceived this as a form of discrimination against them, though it was in fact designed as "affirmative action" to rectify an existing [12] imbalance.

However, far worse than this was the institution, in 1956, of Sinhala as Sri Lanka's only "official" language - that is, the language in which the official administration was to be conducted. Since 1972, this provision has even enjoyed constitutional status, as has the "foremost place" accorded to Buddhism among religions (see section 3.1 below).

Though English continues to be one of the media of education, and many Sri Lankans of all communities are therefore bilingual in Sinhala and English, or in Tamil and English, very few are bilingual in Sinhala and Tamil. If you are a Tamil, you will be educated in the Tamil language and probably also learn some English; if you are Sinhalese, you will be educated in Sinhala and may learn some English too. But no one will be formally educated in both Sinhala and Tamil: if one of these is your native tongue (as it is in fact for every Sri Lankan), it will require an exceptional motivation, and a substantial effort, to learn the other. One consequence is a chronic shortage of Sinhala/Tamil translators, which adds to the difficulties experienced by Tamils in dealing with the administration.

However, there is one community in Sri Lanka that has every justification for seeing itself as a grossly underprivileged minority, and that is the so-called "Indian" Tamils. The bulk of these continue to work on the tea estates, and by their labour make a vast contribution to the national income. Yet they continue to be miserably paid, miserably housed, and Miserably deprived in the provision of food, health and education

For none of these deprivations do they have any remedy, since most of them cannot now even be represented in Parliament, or in local government: although virtually all of them today were born in Sri Lanka, the great majority do not now even have Sri Lankan citizenship.

That extraordinary state of affairs came about as follows. Immediately before Independence, these estate workers - like everyone else born either in India or in Ceylon - were British subjects, and therefore full citizens with a vote. The Soulbury Constitution of 1948 said nothing about citizenship, but shortly after it came into effect the newly-independent legislature enacted two laws, of which the first conferred citizenship of Ceylon only on those whose fathers, as well as themselves, were born in the Island. (If they were not themselves born there, their fathers and grandfathers had to be.) The second law made Ceylon citizenship also available, in limited circumstances, by registration; but not many of the "Indian" Tamils took advantage of this provision - partly for lack of knowledge, literacy or initiative, and partly because their own leaders (by hindsight, probably foolishly) discouraged them from doing so. In the result, out of approximately 825,000 "Indian" Tamils today, only around 150,000 are citizens of Sri Lanka, and so entitled to vote at elections. The rest are effectively stateless.

If one takes the view that all residents of Ceylon who were British subjects immediately before Independence became citizens of Ceylon on Independence, then these people were deprived of that citizenship through the enactment of the new law; if the status of citizen of Ceylon did not come into existence until that law was passed, then they were deliberately excluded from its automatic acquisition at that time. Whichever view one takes, the result today is a wholly arbitrary deprivation of the fundamental right to the citizenship of one's country for a group of people almost all of whom were born there, who have lived there all their lives, who have never been anywhere else and have no other allegiance, and who have made an immense contribution to that country's wealth while being themselves allotted only a derisory share of it.

One might have expected the Sri Lanka Tamil community to espouse the cause of their "Indian" colleagues. Sadly, they have not, for reasons which are obscure but can scarcely be creditable. The blame for this particular injustice therefore rests originally on the British Government of 1948, and has today passed equally to all communities and political parties in Sri Lanka: neither the SLFP nor the UNP, and neither the Sinhalese nor the "Sri Lanka" Tamils, have taken any effective Steps to redress it in the 36 years since Independence.

2.6 Growing Ethnic Conflict

Whatever the reasons, and regardless of whether the perceived grievances have been real or imagined, it is undoubtedly and sadly the case that relations between the Sinhalese and Tamil communities have progressively deteriorated since Independence. The first serious communal violence erupted in May 1958 (while an SLFP Government was in office); the next Came in August 1977, soon after the present UNP Government was elected; then again in August 1981; and most recently in July/August 1983. The intervals between these episodes have become shorter; their extent over the Island has become wider; and the violence has become more intense. All these are characteristics of a situation that is getting worse rather than better.

Communal riots in which Tamils are killed, maimed, robbed and rendered homeless are no longer isolated episodes; they are beginning to become a pernicious habit.

In many respects, the Tamils' response to these events, and to the more chronic discrimination to which they feel subjected, has been remarkably restrained. One of the most striking features of the episodes of communal violence, for instance, has been the lack of retaliation by Tamils against the Sinhalese in their midst, with the result that virtually all the victims on each of these occasions have been Tamils. But there have been other kinds of response, and two of these have proved exceptionally important because they have led to an increase in  the polarisation not only between the two communities, but between the Tamil community on the one hand and the Sri Lanka Government on the other.

The first was a resolution, at the first national conference in 1976 of a political party called the Tamil United Liberation Front (TULF), proposing the establishment of a separate Tamil State in the Island, to be called "Tamil Eelam". The TULF's support for that objective has been consistently expressed as advocating its achievement only by legitimate, open, democratic and peaceful means, within the framework of Sri Lanka's established institutions, and none of its leaders has ever publicly advocated any form of violence in support of that aim. This is also the position of the overwhelming majority of TULF supporters within the Tamil community - but unfortunately not quite all of them. After some sporadic violence in the mid-1970s, including some on the part of police officers, certain disaffected Tamil youths banded together in 1978 in a group which they called the "Liberation Tigers of Tamil Eelam", explicitly committed to the pursuit of that objective by armed violence. Other similar small groups have since then been
formed under different names, but here I shall call them all collectively "the Tamil Tigers". Between them, these groups have over the last six years perpetrated a series of assassinations of policemen, soldiers, potential witnesses or informers against them, and Tamil politicians who support the Government and whom they therefore regard as traitors to their cause. They have also damaged property, and carried out several bank robberies.

It is these two specific Tamil responses, reflecting in very different ways the collective desire of the Tamil community to resist what they perceive as their oppression by the established authorities, which have in their turn led to the counter-measures adopted by the Government: a massive deployment of its security forces in the predominantly Tamil areas of the Island, and especially at the Elephant Pass army camp straddling the isthmus of the Jaffna peninsula: the Prevention of Terrorism Act of 1979; and the effective proscribing, through the Sixth Amendment to the Constitution enacted in 1983, of even peaceful and previously legitimate advocacy or support for the establishment of a separate Tamil State within the Island.

I deal with these in more detail in Chapter 3 of this report, but it is important to understand from the beginning how a sequence of discriminatory measures at comparatively low level, with only very occasional outbreaks of violence, eventually evoked two forms of response which the Government of Sri Lanka has found intolerable - the first because it challenges the very concept of the Unitary State of the Republic, and the second because it challenges the State's fundamental monopoly of force.

These challenges have then provoked counter-measures from the Government which, in Tamil eyes, can only appear as a major escalation of the discrimination and oppression practised against their community by the official authorities of the State. Taken together with the increasing frequency, extent and level of the outbreaks of communal violence, this escalation of response and counter-response has led to divisions and perceptions of hostility which are now so deep that it is becoming increasingly difficult to bridge the widening gaps peacefully.

Undoubtedly, an independent Tamil State (the expression Tamil Eelam is increasingly going out of fashion among moderates) symbolises the aspirations of some Tamils. Professor Leary and Mr. Moore have dealt adequately in their reports with the legal arguments which have been advanced for it, based respectively on the right of self-determination and on the proposition that Tamil sovereignty has never in fact been abandoned, and I express no view of my own on either of those questions. Whether an independent Tamil State would be a feasible and workable proposition at a level of reality below the realms of aspiration and legal theory is quite another question, on which I have no particular competence to expressany views. But the views of others to whom I have spoken seem to range between two extremes which may be caricatured as follows:-

For: Tamils work hard, have well-developed commercial skills, and are apt to become enterprising and successful traders. Jaffna, Batticaloa and Trincomalee are good deep-water ports. A Tamil State could therefore ultimately rival Singapore and Hong Kong as a free trade area, commercial centre, and entrepot. It might even develop profitable industries.

Against: The North and East of Sri Lanka are many hundreds of miles off the beaten track, and no one would have any commercial incentive to use them. Partition would entail large-scale communal violence, ending in a mutual expulsion of the remaining minorities, as in the case of India and Pakistan. A land frontier between two different ethnic States on the same island would be a frontier of chronic hostility, permanently or at least frequently shut; at worst exchanging sporadic gunfire, and at best exacting retributory tolls, and restricting trade and other beneficial exchanges. Tamil Eelam's only supporter would be Tamil Nadu, and its position would therefore more closely resemble that of Israel than that of Hong Kong or Singapore: surrounded by enemies on all landward sides, and depending for its survival on a single overseas ally.

Between those extreme positions, there are of course others. It is difficult to predict which of them would most closely reflect reality, if such a reality ever came to be enacted. But whether the dream of an independent Tamil State in Sri Lanka could in fact be realised in social or economic terms seems questionable.

Meanwhile, the increasing divisiveness between the two major Sri Lankan communities is reflected in a variety of symbolic products. There is, for example, a species of mutually hostile propaganda as pointless as it is unedifying. It may be exemplified by two apparently matching pamphlets: one entitled "Sinhala People - Awake, Arise, and Safeguard Buddhism", and the other "Sri Lanka: where the State is at war with Tamils". The parallels between these publications are at the same time frightening and pathetic. Each displays a pictorial stereotype of the opposition: "Sinhala People Awake" has a cartoon of a Sinhala farmer in a loincloth spearing a Tiger (the animal, as a symbol for the human one); the Tamil confection has a photograph of a helmeted soldier about to bayonet a defenceless half-naked youth.

But one crucial feature distinguishes these two unappetising productions: while the Tamil item comes from theTamil Eelam Information Unit in Madras, "Sinhala People Awake" turns out to be the work of Mr. Cyril Matthew, occupying the responsible post of Minister of Industries and Scientific Affairs in Sri Lanka.

The Tamil confection was produced in India, evidently in order to enlist international support for the Tamil cause; but the Sinhalese one was concocted at home, for home consumption, by a senior Minister of the Republic who is also the leader of the principal UNP trade union.

The attitudes of successive Sri Lanka Governments since Independence to what they sometimes call "the Tamil question" have displayed some curious ambivalences. There have, for example, been several negotiated "Pacts",7 each welcomed as heralding the final resolution of all ethnic problems, but for one reason or another they never seem to have been fully carried out.

Sri Lankan Governments are always careful to include Tamils in their administration: the present one has three Cabinet Ministers, the Attorney-General (who also served in the previous one), the Inspector-General of Police, and several other high officials. But even that does not seem to be enough to reassure the Tamil community of the benevolence of their Island's elected government.

There is of course one recent event that was scarcely calculated to instil such confidence. The last outbreak of communal violence began on 24 July 1983. For day after day, Tamils (of both the "Sri Lankan" and "Indian" varieties) were beaten, hacked or burned to death in the streets, on buses, and on trains, not only in Colombo but in many other parts of the Island - sometimes in the sight of horrified foreign tourists. Their houses and shops were burned and looted. Yet the security forces seemed either unwilling or unable to stop it - indeed, in Jaffna and Trincomalee, some members of the armed forces themselves joined in the fray, claiming an admitted 51 lives. Seen from the Tamil point of view, either the Government had lost control of the situation, or it was deliberately standing by while they were being taught a lesson. The first massacre in Welikada jail took place on 25 July, and claimed another 35lives. The second - allegedly foreseen by the prison staff - came two days later, and claimed another 18. Not until the very end of that second episode was a special army unit sent in, to save the lives of the few remaining Tamil political prisoners.8

And not until the fifth day, on 28 July, did President Jayewardene finally appear on national television. In a brief address, he blamed the violence and destruction exclusively on the reaction of "the Sinhala people" to the movement for the establishment of a separate Tamil State, and announced a Cabinet decision to bring in what in the event became the Sixth Amendment, designed to ensure that even peaceful supporters of separatism could not sit in Parliament, and that "those who advocate the separation of the country lose their civic rights and cannot hold office, cannot practise professions, cannot join movements or organisations in this country."

In the course of that address, the President did not see fit to utter one single word of sympathy for the victims of the violence and destruction which he lamented. If his concern was to re-establish communal harmony in the Island whose national unity he was so anxious to preserve by law, that was a misjudgment of monumental proportions.

 I have yet to meet a single Tamil at any level in Sri Lanka or out of it who does not remind me of this glaring omission at the first opportunity. Nor are they reassured by the programmes for relief and rehabilitation of the victims which the Government has in fact since installed: at the time of my visit, six months later, around 10,000 homeless Tamils were still in refugee camps.

For months after the violence, the President consistently refused to hold any discussions with the TULF leaders, in or out of Parliament, unless they first formally abjured a separate Tamil State - something they clearly could not do, whether they privately believed in it or not, since they were bound by their party's explicit resolution of 1976 on which they had been elected. Not until after the Commonwealth Heads of Government Meeting in Delhi later that year, and some delicate diplomacy on the part of India, did the President finally agree to a round-table conference of all the political parties in Sri Lanka (including the TULF), as well as some other interest groups. Those talks in fact began, after some last-minute brinkmanship by Mrs. Bandaranaike, on 10 January 1984 - two days before my arrival - and they are still continuing, now in two Committees with complementary terms of reference, as this report goes to press. One can only hope that they will at long last produce a truly comprehensive "Pact" - and this time one that is carried out in full.

2.7 Goondas

There is one more political and social - albeit wholly unofficial - feature of Sri Lankan life which must be mentioned here, and that is the so-called "goondas". These are, essentially, organised gangs of hooligans available for hire by anyone whom it happens to suit to foment trouble in the streets. It is freely admitted that every major political party has its own rented or rentable goonda contingent: there are SLFP goondas, UNP goondas, and doubtless goondas serving other political interests. In private discussion, their employers seem to regard them as regrettable necessities on the political scene, and to play down the importance of the harm they can do; by contrast, those against whom their hooliganism is from time to time directed are apt to play up their importance, and to describe them as "private armies", in the pay and at the service of named politicians. That they exist is not disputed: what is less clear is the extent of the damage they can inflict, and how it comes about that their paymasters seem to enjoy a surprising degree of immunity from prosecution.

For example, the disturbances outside the private houses of Some Supreme Court Judges referred to in section 3.4 below were undoubtedly mounted by goondas in somebody's pay. In the event, no one was killed or even hurt, but even so the episode was clearly intended and seen as an overt threat to the independence of the judiciary, and so a criminal offence under the Constitution, yet to this day no one has been able to establish who was behind it. Likewise, the communal violence which began in Colombo on 24 July 1983 bears every appearance of having been done by hired groups of goondas, and that led to much loss of suffering, and destruction of property. Yet here again, despite long-drawn-out police enquiries, no one has yet been able to establish the hand behind that initial episode, a matter to which I shall return in section 4.1 below

Report Continued...

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