Changing course towards ethnic stability

by Bruce Mathews

2015 has been a significant year for Sri Lanka's political destiny and well being. Crucial factors include the necessity to hold an honest and acceptable accounting of alleged war crimes and the presidential and parliamentary elections held in January and August.

It's a time of uncertainty, as grassroots nationalist passions, particularly on the Sinhalese streets, have the potential to disrupt the prospect for real stability and prosperity. This will require careful political management and international good will.

A legacy of conflict

In 2009, Sri Lanka emerged intact but traumatized from a vicious 26-year-long war between the State (with its dominant Sinhalese majority) and the Tamil minority secessionist, Liberation Tigers of Tamil Eelam (LTTE). The events of that war even now overshadow the future of Sri Lanka.

Over the course of the war, various unsuccessful ceasefires each marked the beginning of four so-called Eelam Wars. Military engagements during this quarter century of conflict were often horrendous.

With the election of Mahinda Rajapaksa as Prime Minister and his United Peoples Freedom Alliance (UPFA) in 2004, the stage was set for the no-holds-barred final five years of struggle to defeat the LTTE militarily. Diplomatic and international efforts to intervene in the conflict were rejected. The last few months of the war -particularly the final battle in the northeast - became extremely controversial because of the involvement of innocent civilians. In April-May 2009, beside a remote lagoon Nanthi Kadal, some 330,000 Tamil civilians found themselves entrapped by leaders of the LTTE and at the same time, relentlessly attacked by a well-armed Sri Lankan Army. Thousands died in so-called No Fire Zones.

The LTTE was finally defeated and it brought an end to frightening security emergencies and disruption of normal life in the largely Sinhala south. Rajapaksa was able to translate these events into a parliamentary victory in 2010. Not unexpectedly, political hubris and Sinhalese triumphalism followed.

This was a time when the government could have attended to the serious international human rights charges associated in particular with the final months of conflict, and, by extension, with the whole unresolved matter of Tamil civil rights and regional autonomy. But the opportunity to do so slipped away, with the government ignoring international demands for accountability.

International monitoring

Rajapaksa's government was never accommodative of international efforts to monitor violence and investigate wartime abuses. Prior to the conflict's climax in 2009, the government's N.K. Udalagama Commission, which led an investigation into human rights abuses, had an international component.

Attached to the 'Presidential Commission of Inquiry to Investigate and Inquire into Alleged Serious Violations of Human Rights' was an International Independent Group of Eminent Persons (IIGEP) under the chairmanship of P.N. Bhagwati, former Chief Justice of India.

The IIGEP was present from 2006-2007 in Sri Lanka and was accorded polite assistance with its labours. But the agency resigned in due course, due to a near complete absence of co-operation from the armed forces and government agencies.

International demands for an investigation into wartime abuses increased following the fighting of 2009.

To its minimal credit, the Sri Lankan Government established a Lessons Learnt and Reconciliation Commission (LLRC) in 2010, which provided a list of features deserving of implementation technically based on the principle of restorative justice, but with no inherent individual reckoning. At best, the LLRC experience opened a national dialogue on the sensitive topic of justice and reparations.

Another missed opportunity was the complete failure to assist the 2011 UN Secretary-General's Panel of Experts on Accountability in Sri Lanka, chaired by Marzuki Darusman. The UN Panel was refused entry into the country. Their report remains the single best description of what was involved on the part of both the government forces and the LTTE, providing credible eyewitness accounts of the grim circumstances experienced by the entrapped civilians.

Chance for reform

The election of Maithripala Sirisena as President on January 8 -described aptly as a silent revolution - triggered unexpected and positive changes. A 10-year period of increasingly authoritarian and lawless State-military rule by Rajapaksa and his powerful family was abruptly terminated. Ended as well were the growing diplomatic isolation for the island nation and the 'days of terror.'

Rajapaksa's political legacy is generally regarded as negative, though he could claim some measures of success. He did preside over the defeat of the LTTE. Despite the huge disruption resulting from years of recent armed conflict, economically the nation has achieved a GDP growth rate of 6.5 per cent and a controlled inflation of two per cent (ADB September 2015). Rajapaksa's outreach to Chinese investment did much to help rebuild parts of the economy and physical infrastructure, especially roads and ports.

Yet Rajapaksa's abuses of office accumulated with time. Particularly troubling was his seizure of the judiciary and the outrageous removal in 2013 of former Chief Justice Shriani Bandaranayake, as well as the manipulation of the constitution, especially the infamous 18th Amendment permitting a presidency of more than two terms (now repealed). His accomplishments eventually became overshadowed by the regime's general corruption.

When Maithripala Sirisena, a mild-mannered former Cabinet minister in Rajapaksa's UPFA presented himself as a presidential candidate who could also appeal to the main opposition United National Party (UNP), he won the office by the slimmest of margins. The armed forces resisted Rajapaksa's requests to intervene with the election. The outcome signalled that Sri Lanka is indeed a democracy.

The parliamentary elections of August 17 underscored the momentum for reform. It also introduced the UNP to the Prime Minister's Office, led by a highly-experienced, non-abrasive, non-confrontational 'problem-solver,' Ranil Wickremesinghe, a former Prime Minister.

With 106 seats out of a parliament of 225 seats, the UNP can govern only by means of coalition with one wing of the UPFA, a couple of small Sinhalese parties, including the Janatha Vimukthi Peramuna, the Tamil National Alliance and the Sri Lanka Muslim Congress.

Technically, the UPFA is under the chairmanship of President Sirisena, but half of the party remains loyal to former president Rajapaksa who got himself elected to parliament as an ordinary MP, taking with him a destabilizing clique.

As in Thailand and Myanmar, two states with similar large Theravada Buddhist majorities, Sri Lanka has seen a spike in ethno-communal nationalism, with Buddhists fearful of seeing their religious heritage diluted and threatened by the rise of strong minority cultures and secularism.

There are Buddhist prelates who entirely reject religious political activism, but at the grassroots level, these religious identities can be quickly harnessed for political aims.

The spectre of Sinhala Buddhist nationalism looms through such movements as the Bodu Bala Sena. Sinhala Buddhist nationalists contested under their own party but fared poorly, though several slipped into parliament by attachment to the Rajapaksa clique of the UPFA.

President Sirisena and Prime Minister Wickremesinghe face a substantial challenge to keep a thin parliamentary majority from slipping away, as members who are currently loyal may possibly be enticed to cross the floor to join the Rajapaksa faction. Another consequence is a jumbo cabinet of 90 ministers and junior ministers, described as "a colossal and shamefully male-dominated Cabinet" with some offensively unworthy appointments from the pro-Rajapaksa camp.

At the same time, the unique feature of a coalition parliament provides a rare opportunity to come to grips with longstanding ethnic communal challenges and problem-solving.

Of special importance is the appointment of the Tamil National Alliance as the official parliamentary opposition, and of Kanagasabapathy Sripavan, as Chief Justice.

New opportunity

During the post-war six years, international pressure has only increased for a credible protocol to investigate and bring to justice those involved in fateful decisions on both sides pertinent to the final months at Nanthi Kadal.

Two recent UN documents with a focus on an appropriate judicial mechanism to address these matters have been released: the OHCHR report and the UNHRC's draft resolution on promoting reconciliation.

The High Commissioner's report calls for a hybrid judicial mechanism with participation of international and domestic judges, lawyers, prosecutors and investigators.

The UNHRC draft resolution does not specifically demand a hybrid judicial mechanism, although it recognizes the importance of participation of Commonwealth and other foreign judges.

Advocates of the hybrid or 'international' court model definitely include the minority communities. They can point to the absence of former credible national commissions on civil war-related matters, even those with international participation, such as the toothless N.K. Udalagama Commission.

The prospects for an affirmative response are now better than ever due to the new government's acceptance of the need for disclosure.

But the nationalist sentiment in the Sinhalese south will make it strategically impossible for the Sirisena/Wickremesinghe parliament to allow the judicial process to be overseen or governed by foreign officials.

Prime Minister Wickremesinghe has provided a blueprint for a four-tier indigenous 'truth seeking' system, including a Commission for Truth, Justice and Reconciliation, Offices of Missing Persons, Reparations and an appropriate domestic judicial procedure to bind all these elements together. There is as well the all-important acknowledgement that the process will have recourse to international experience and advice, notably South Africa's 1996 Truth and Reconciliation Commission.

But what is described as the most vital part of that resolution, the matter of the possible role of foreign judges and legal personnel, is still not completely resolved. Wickremesinghe has indicated Sri Lanka can only support 'consultations' with foreign legal figures, and even this will require new parliamentary support. This is the potential worrisome flashpoint that is still to be addressed by the Sinhala majority.

Towards reconciliation

Sirisena and Wickremesinghe have been given nine months to provide an "oral update" to the UN High Commissioner for Human Rights, and 18 months to give a written report on the progress. Any public rejection of direct foreign involvement with a UN-sponsored commission works to the advantage of former president Rajapaksa, who seethes with fury at his ousting.

It is yet to be determined whether the new government has the political will to press on in this sensitive but ultimately unavoidable matter if the country wants to regain its former respectable place in the international community.

In the past 10 months, Sri Lanka has returned to the democratic world, has shed itself of the odious Rajapaksa regime with its associated diplomatic opprobrium, and re-engaged with the international community.

The immense loss of Tamils over the course of a quarter century has resulted in a sturdy, generally well-off international diaspora - most of it interested in participating in the wellbeing of Sri Lanka if the state will address outstanding grievances. This has ramifications in Canada, where a large Tamil community form a constituency that continues to have profound importance to the ultimate outcome of Sri Lanka's future.

They could add tremendously to the prosperity and integrity of the country, and there are already indications that events favour their inclusion in the country's destiny.

Perhaps this sea change in Sri Lanka's attitude towards its complex and painful past is best seen in how the former May 18 'Day of Victory' public celebration marking the Sinhalese triumph in the civil war is now much more appropriately called the Day of Remembrance, embracing the LTTE and all others who died in the horror of Nanthi Kadal and other battles over close to three decades. This is the affirmative spirit that will transport the nation into a new and much more progressive era.

(Bruce Matthews is Professor Emeritus at Acadia University in Nova Scotia. He was the Canadian appointment on the International Independent Group of Eminent Persons, which was mandated to observe investigations into human rights abuses in Sri Lanka.)

- asiapacific.ca