Nelum Deepika Udagama **
“ … if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law…” With that simple yet elegant phrase the preamble of the Universal Declaration of Human Rights captures the essence of a timeless truism. As I survey the political debates and events unfolding in post-war Sri Lanka, the wisdom of those words constantly comes to mind.
Where the human spirit can soar free there is very little inclination to rebel. Where it is suppressed through tyranny and oppression, rebellion is inevitable. Salvation lies in protecting human dignity and liberty through a political system that is based on the will of the people. If governance is bullish and not sensitive to the human condition, we cannot expect anything other than unrest and turmoil. I am convinced more than ever, that our actions in this crucial period will come to nought unless we recognize that democratization of the state and polity should be our first priority. Demanding a wish list of post-war goals will be a futile exercise if we fail to set the correct political backdrop or framework within which we can work effectively to achieve these goals.
Absence of a National Ideology of Reconciliation:There are many views about what we must achieve in post-war Sri Lanka. There appears to be a general acceptance that reconciliation among the various ethnic groups in the country is the top most priority. Some think that for reconciliation to be realized we must primarily focus on economic development; others think that we must focus on a political solution; yet others think that what is of crucial importance is the investigation of alleged war crimes and establishing the truth; some are of the opinion that all those measures are necessary. There are indicators and bench marks developed to measure reconciliation. Most are about specific deliverables—devolution of power, resettlement of IDPs, demilitarization, equitable land policy, depoliticization of institutions and so on.
But have we, as a society, sufficiently invested our efforts at adopting a philosophy or fundamental principles on reconciliation that should inform our efforts in the post-war period? I do not think so. We have only the same fragmented and hackneyed political rhetoric of our troubled past. There is a palpable absence of a national ideology that guides us in our efforts today. Even if the goal posts for reconciliation are identified, I wish to pose the question whether we can meaningfully achieve any of those goals absent the establishment of a dominant ideology of reconciliation? Can there be reconciliation in an ideological vacuum? Can reconciliation be achieved through clinical and technical policies not accompanied by an overarching spirit of reconciliation? I think not.
Recently I was asked by a multi-ethnic group of Sri Lankan expatriates in Australia what reconciliation really means. The dictionary informs us that reconciliation is “ to cause to be friendly or harmonious again”. What exactly is the measure though I was asked. My gut response was that it is about creating a genuine sense of equal belonging. Reconciliation is a process that should address the psychological than the physical. It is not about the written agreements, handshakes or the visuals. It is about, especially in the context of societies with cleavages, a process whereby collectively and individually people feel a visceral sense of equal belonging to a given society—a sense of genuine acceptance by others as equals who belong. It is this belief that drives me to say that adopting an ideology of reconciliation, with clearly identified constituent principles, should have been our first priority.
South Africa: The Transformative Power of “Ubuntu”:
Millions around the world were intellectually and emotionally swayed by the South African “revolution”. It saw the state transitting from a racist entity to one which sought to create that sense of equal belonging among all racial groups. The South African transition moved and inspired us because those who sought change, in particular the ANC, did not do so only through hard nosed politics. There was a lyrical quality to their politics—humane, inclusive and vibrantly democratic. When the transition was negotiated and Nelson Mandela was sworn in as president of the now multi-racial republic, ANC functionaries did not go on triumphant victory romps displaying black power. As Albie Sachs, the prominent South African jurist and “legal brains”of the ANC, once famously said at the Harvard Law School–“I hate it when people call the South African transition ‘a miracle’. It was not a miracle; it was hard work. Especially so, to convince the young ANC cadres that when change comes we have to build an inclusive society, a rainbow nation, not one of black power”.
That vision was translated into constitutional terms in the Transitional Constitution of South Africa (1993) through the following memorable lines:
This Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex. The pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society.
The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.
These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation…
With this Constitution and these commitments we, the people of South Africa, open a new chapter in the history of our country.
That section of the constitution entitled “National Unity and Reconciliation” articulated the ideology of reconciliation in South Africa. The concept of “ubuntu” which encapsulates African traditional ideas on humanism and co-existence, though eluding precise definition, has now become a constitutional principle that guides judicial philosophy in interpreting the constitution. In the ground-breaking Makwanyane judgment (1995), Justice Langa of the South African Constitutional Court found the death penalty to be unconstitutional because, among other grounds, it was against the values encompassed in ubuntu. That concept, not explicable in tangible terms but rich in symbolism, nontheless created the texture and tone for reconciliation.
Post-War Sri Lanka: Politics Without Poetry: Unlike in South Africa, however, there was no political transition in Sri Lanka when hostilities between the armed forces and the LTTE ended in May 2009. The armed forces decisively defeated the LTTE destroying its military capability. There was then a clear victor and a vanquished. Instead of change, the political status quo at the centre got further entrenched. If there was hope for a progressive vision for reconciliation and reconstruction, such a vision did not emerge following euphoria over the military victory. The imagination of the political establishment seemed to go only so far as embracing triumphalism. No lyrical politics here. No poetry in the heart.
There were no public moments devoted to reflecting on what went wrong; on why a ruthless group like the LTTE won legitimacy even for a moment; on why Sri Lankans killed each other for nearly three decades; on whether indeed there can be a victor at the end of a war that could only be described as a national tragedy; on why generations of political leadership could not address the causes of conflict through prolitical means. There were no moments of silence or days of mourning to remember the thousands of citizens killed on both sides of the conflict. There were the good ones and the bad ones; a clear victor and a vanquished; patriots and traitors. In such a polarized political backdrop, the creation of a new constitutional order enabling reconciliation was certainly not in the cards; nor was a well thought out vision on reconciliation.
Instead what we got was the Eighteenth Amendment to the 1978 Constitution. Even those jubilant over the war victory were troubled both by the Amendment’s contents and the process followed for its adoption. The Amendment, as we all know well, further concentrated power in an already powerful executive presidency. The presidential term limit was removed, and the president got virtually unlimited authority to decide on the composition of the higher judiciary, the Election Commission, the Human Rights Commission, the Police Commission and other institutions the independence of which is crucial to providing checks and balances in government. Further, the powers of some institutions were diluted. The Eighteenth Amendment Bill was rushed through parliament as an urgent Bill, thereby denying consultation and debate. Mysteriously, around that time several opposition parliamentarians joined government ranks swelling its parliamentary majority to the required two-thirds majority. All those events left a bad taste in the mouth of the alert citizen, whether belonging to the majority or a minority. The international community got worried. Things were moving fast, but in a very problematic direction. The historic Moment was being squandered on hard politics.
What was the message that the Eighteenth Amendment sent to the people, especially the minority communities? Certainly not one that instilled confidence in the state as an entity that would ensure democratic safeguards, display a willingness to share power and respect different points of view. The state seemed even more monolithic and unyielding than before. Where were the messages of humanism, democratic guarantees, of confidence building and healing? The Eighteenth Amendment was the very antithesis of all those ideals.
Our hour of ubuntu was yet to come.
Political idealism is imperative for positive change. I’ve always wondered why, for example, the Charter of Rights already drafted and awaiting public debate and presentation to parliament was ignored by the government? If it was keen to grasp this historic Moment that arose after the war, presenting the draft Charter for public debate and adoption by parliament would have been a warm and meaningful political gesture. It would have gone a long way in confidence building among the various communities.
The Charter of Rights was envisioned by the Mahinda Chinthana (2005) and was drafted by a sub – committee appointed by the then Minister of Constitutional Affairs & National Integration, D.E.W. Gunasekara. It was an expansive Charter that incorporated international human rights norms and the best features of comparative constitutions–such as those from South Africa and India. It guaranteed not only civil and political rights, but also economic, social and cultural rights; and not only individual rights but also group rights. A commitment on the part of the government to expansive protection of rights through a constitutional amendment would have sent just the right type of message to facilitate reconciliation. Instead it was to choose a path that would only give rise to insecurity and suspicion. The Draft Charter must be lying in some bureaucrat’s drawer gathering dust.
Unfortunately for us, the Eighteenth Amendment was not an ill-concieved measure that stood in isolation. It was clearly a flagbearer of a pattern of erosion of democracy and the rule of law in the post-war period. The creation of a monolithic executive presidency and the weakening of independent institutions through the Eighteenth Amendment took place in a backdrop of public violence and impunity. Continued abductions (“whitevanning” as it is called today) and involuntary disappearences, assaults on journalists and media institutions, assaults on opposition political personalities and gatherings–and all accompanied by a daring degree of impunity – had created a sense of public fear and insecurity that ought to have belonged only to the dark days of the war. Admittedly, the people are greatly relieved at the silencing of the guns of war and the dreaded suicide bombs, and a large proportion is glad the LTTE was dismantled. But the expectation was that there would be a sustained consolidation of democracy and the rule of law once the war ended. That was the peace we wanted.
Nonetheless, a major problem facing the citizenry today is the lack of faith in public institutions. People constantly pose the question as to who they can turn to for redress with confidence. For those who do not depend on political patron saints the choices are very limited. Weakening of public institution through systematic politicization, coupled with fear in an environment of intolerance, does not speak of a healthy system of governance. Civil society institutions registered strong protests, for example, when the Attorney-General’s Department was brought under the office of the president, but to no avail. Partisan actions of the Department that followed confirmed public fears. Similarly, serious doubts remain about the credibility of other institutions which are expected to be independent in a functioning democracy. That is so not only in regard to institutions pertaining to administration of justice and law enforcement, but also with regard to regulatory bodies.
Reconciliation without Democratization? In this climate of intolerance, impunity and political brashness can one expect reconciliation? Is it possible to create a sense of equal belonging when the rule of law, which operates on the principle of equality of all, is constantly under attack? When people feel particularly vulnerable because they believe that there are no public institutions to protect them, and the law is not enforced with an even hand, can they view the future with confidence?
For example, even though the rehabilitation programs for LTTE cadres including child soldiers have drawn positive responses from various quarters, there are serious concerns about the problematic circumstances they return to upon completion of the programs. Problems faced on return home are not limited to economic deprivation and social dislocation; issues arising from heavy military presence, violence unleashed by political goons with patronage, a culture of impunity and tight control over many aspects of life by the centre plague the lives of the returnees. The ensuing sense of personal insecurity and lack of political agency is hardly conducive to entertaining hopes for a bright future.
It is this stark reality that makes me maintain that democratization of the state and governance should be our primary goal today. Without democracy and the rule of law, there can be no effective reconciliation. Assurances given by democracy is the glue that holds fractious parts together. An ideology of reconciliation cannot be built without the basic ingredients of democracy and the rule of law. Economic development is important, but that process alone cannot achieve reconciliation. In the first place, all communities must have the ability to meaninfully enagage in the decision making process in order for development to touch the lives of the people. That is why the likes of President Mandela first invested in a vibrant democratic constitutional order that guaranteed equal protection of rights through the rule of law.
What is interesting in the context of Sri Lanka, however, is that demands for post-war justice (read in a broader sense), whether at the national or international level, have almost assumed democratic guarantees. As I read it, the major demands are threefold—
a) resettlement of IDPs and their protection;
b) investigation of alleged war crimes; and
c) working towards a political settlement to address minority grievances.
It is almost as if those goals could be achieved effectively in the existing political climate. The primary demand does not appear to be the need to consolidate democracy. When, for example, issues of institutional independence arising under the Eighteenth Amendment or attacks on media institutions and personnel are raised, they are raised as a parallel or secondary set of issues/demands. In other words, the demands do not make the necessary linkage with democracy as a pre-requisite.
But can alleged war crimes be locally investigated and prosecuted effectively without the required democratic institutions and guarantees? Can weakened institutions and processess suddenly come alive and become robust for that purpose? Recall what happened to the Udalagama Commission of Inquiry. Will political manipulations suddenly disappear? Similarly, can a meaningful dialogue be conducted to reach a political agreement on minority demands in a backdrop of intolerance and intimidation? Perhaps, it could be said that the need for democratic institutions and processes are inherent in those demands. But the point I wish to make is that democratization should be the primary demand, because it is that that will set the stage for achieving post-war goals meaningfully. Without a commitment to democratization can we construct a pathway to reconciliation?
My own set of immediate demands as a citizen are as follows—roll back the Eighteenth Amendment; restore the Seventeenth Amendment and the Constitutional Council with improvements; guarantee judicial independence and independence of all oversight bodies; stop political interference in and politicization of public institutions; take strong measure to prevent discrimination based on ethnicity, gender, language and religion; let law enforcement (meaning the ordinary law–not exceptional laws) take its own course, do not provide protection to erring political favourites; respect and protect free expression, association and assembly– adopt a policy of ‘let a thousand flowers bloom’; adopt a zero tolerance policy on torture, abductions and involuntary disappearances; permit free and fair elections and respect the people’s will.
That is already asking for a great lot. But without those fundamentals I doubt very much that we can progress in the right direction, both nationally and internationally. My own view is that if the government could have demonstrated a genuine commitment to fundamentals of democratization in the post-war period, most probably the recent Human Rights Council Resolution on Sri Lanka (A/HRC/19/2 of 3 April,
2012) may not have gone through.
Post-War Advocacy: Championing “Local Solutions”: Advocacy of post-war demands by civil society organizations and the international community have generally elicited defensive or confrontational responses from the government. Often there is recourse to rhetoric invoking national sovereignty or references made to national or international conspiracies. There is constant reference to “local solutions” as the acceptable path. Therefore, it is important to examine and refer to, as extensively as possible, voluntary undertakings made by the government when making our demands. Perhaps, we may get a better hearing that way.
First, we must take a close look at the Human Rights Council Resolution (A/HRC/S-11/2) adopted at a special session on 27 May, 2009 in the immediate aftermath of the end of the war. The Permanent Mission of Sri Lanka to the UN in Geneva openly declared the resolution as a victory for Sri Lanka (as it edged out a critical resolution sponsored by the EU), and even hinted at responsibility for its drafting. If so, the government cannot quarrel with its contents. The resolution contains, among others, the following:
- 2. Welcomes the continued commitment of Sri Lanka to thepromotion and protection of all human rights and encourages itto continue to uphold its human rights obligations and the norms of international human rights law;
- 11. Welcomes the resolve of the Sri Lankan authorities tobegin a broader dialogue with all parties in order to enhancethe process of political settlement and to bring about lastingpeace and development in Sri Lanka based on consensusamong and respect for the rights of all theethnic and religious groups inhabiting it,and invites allstakeholders concerned to actively participate in it;
The resolution makes it clear that the government of Sri Lanka had assured the Council of its “continued commitment” to the promotion and protection of all human rights and also of its “ resolve” to begin broader dialogue with all parties.
Secondly, the voluntary undertakings of the government made to the international community in 2008 in the UPR (Universal Periodic Review) process are significant. The UPR process is a novel mechanism employed by the United Nations( pursuant to adoption by the General Assembly) to review the human rights situation of every UN member state under the auspices of the Human Rights Council. It involves peer review by fellow member states and is meant to be constructive in approach rather than confrontational.
The following voluntary UPR undertakings by Sri Lanka are significant:
- 89. Sri Lanka will take necessary measures to enable the reconstitution of the Constitutional Council which will facilitate the strengthening and effective functioning of national human rights mechanisms, including the National Human Rights Commission.
- 90. A Witness and Victim Protection Bill will be introduced in Parliament shortly and measures will be taken to implement the legislation including the establishment of the necessary institutions.
- 93. Sri Lanka has commenced work on drafting a constitutional charter on human rights that will strengthen the human rights protection framework in the country and bring Sri Lanka’s constitutional human rights guarantees in line with its international obligations. The process includes engaging in consultations with civil society. The draft charter and the process of consultation will foster a national discourse on human rights
- 94. As a part of its commitment to guarantee civil and political rights as well as economic, social and cultural rights of its people, Sri Lanka will continue to align its development strategy within the larger framework of promoting local values and social protection for women, children, elderly and differently-abled people and other vulnerable groups in society and respect for human rights and good governance.
- 103. Sri Lanka will take measures for the effective implementation of the 13th Amendment to the Constitution.
- 104. Sri Lanka will continue to work towards the economic development of the Eastern Province [note: in 2008 the government forces had secured only the Eastern Province], which will uplift standards of living and the realization of social, economic and cultural rights, and also assist strengthening and smooth functioning of democratic institutions. Sri Lanka will also promote the dissemination and inculcation of best practices, good governance and political pluralism, as well as take measures for the rehabilitation and reintegration of ex-combatants, particularly children and young persons.
- 105. Implementation of the official languages policy and continuing encouragement of bilingualism, in particular in the security forces, police and within the public service.
(See Report of the Working Group on Sri Lanka on Universal Periodic Review, A/HRC/8/46. The paragraphs above carry numbers assigned in the original report.)
Sri Lanka is due to go through the second cycle of UPR review in October, 2012 and will have to report on measures taken to implement the previous cycle’s undertakings.
Thirdly, there are the recommendations made by the Commission of Inquiry on Lessons Learnt & Reconciliation (LLRC) appointed by the president himself. Belying expectations to the contrary, LLRC has made a series of strong recommendations in regard to achieving reconciliation. They are based on the premise that reconciliation and democratic governance are intrinsically inter-linked. The report notes that “[i]t was stated that lack of good governance, and non-observance of the Rule of Law coupled with a lack of meaningful devolution were causes for creating tension between communities”(para 8.185).
The LLRC recommendations on reconciliation pertain to:
- Political responsiveness to grievances of various communities
- Rule of law/human rights protection
- Governance issues/political culture
- Institutional reform
- Devolution of power
- Language policy
- Equal opportunities
- Religious freedom
- Cultural activities to promote reconciliation
- National Anthem
(Report of the LLRC (2011) 288-325)
We are not quite certain about which LLRC recommendations have been accepted by the government for implementation. However, the LLRC itself was constituted as a “local solution” to counter calls from the international community for an international commission of inquiry. In the long run, the government will be hard pressed to reject its own local solution.
The Need to Rediscover Citizenship: The above sources provide a rich reservoir of recommendations and public undertakings by the government that can be used by citizens to buttress calls for change. But the question is, are we doing enough about it?
I do honestly believe that Sri Lanka is losing the Moment not only because of the undemocratic nature of the state and government, but also to a great extent because we, as citizens, have failed to take the lead in setting the post-war agenda. Unlike in neighbouring countries, political apathy within the Sri Lankan polity is legion. Some of us view social movements taking place elsewhere with envy and longing.
On the whole, the public agenda of Sri Lanka is essentially based on the whims of powerful political personalities. We, as citizens are mostly content to respond to whatever agenda that is set. Except for public advocacy by a few non-governmental organizations and citizen groups there is not much organized civil society engagement on public issues. Our political culture then is a classic case of the tail wagging the dog.
Weak citizenship and the absence of sustained social movements in Sri Lanka are twin factors that have failed to move governance in the right direction. Over the years, especially after the crushing of the trade union movement in the early 1980s, we have been content to be mere voters. It is time that we set our minds to rediscovering full blown citizenship and our own worth. Through organizational strength and public debate we must set our own public agenda. We must now work toward demanding democratization of the state, acquire our own democratic spaces and get down to work. We must set the post-war agenda. We must create an ideology of reconciliation. We must work toward establishing the truth. We must contribute to establishing the contours of a political solution.
The need for us to empower ourselves cannot be more keenly felt than in the post-war period. Failure to do so will make us add another failed Moment (an extraordinarily unique one at that) to a long list of missed opportunities.
** Deepika Udagama, Law Faculty, Peradeniya University, presented this address at the Inaugural Public Forum of the “Forum for Democracy & Social Justice” held at the Russian Cultural Centre, 2 June, 2012,. This essay has been serialized in The Island, 18 October et seq