25 July 2011

Representations to the LLRC

~ Transcipt of evidence ~
Colombo, Sri Lanka
14th January 2011


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My representations are framed by my understanding of the teaching of Siddhartha Gauthama, in particular the Charter on Free Inquiry, the Kalama Sutra.  As such I would hope that my submissions privilege reason over emotion and moreover call for the same privileging in the matter of learning lessons and imagining and implementing measures of reconciliation subject to the caveat that conclusions drawn are regularly verified in practice and adjusted in accordance to flaws discerned.  My appeal is further framed by the two principle drivers proposed by the Buddha: wisdom and compassion.
Reconciliation connotes a bridging of difference, a coming together.  It assumes therefore disjuncture, disunity, dissatisfaction and disagreement.  In the matter at hand the operative term would be ‘grievance’.  I am of the view that if grievance is perceived then it is real.  Grievances can be imagined of course, but to the extent that even such constructions factor into real life politics and provoke outcomes, they need to be treated as real for the aggrieved.  To the extent that such grievances are felt by a citizen then it is incumbent on the state to ensure that there is a mechanism to address these grievances, ascertain their true dimensions and deliver redress. 
Grievances, as articulated by Tamil representatives, self-appointed or otherwise, are broadly of two kinds: the traditional homeland claim and inequalities or anomalies pertaining to citizenship. 
With respect to the first, that of traditional homelands, I submit the following:
On February 14, 1766, Kirthi Sri Rajasinha, the King of the Kandyan Kingdom ceded a stretch of land in the Eastern part of the island, 10 miles in width from the coast to the Dutch East India Company.  The relevant maps are contained in Fr. S.G. Perera’s ‘The History of Ceylon’.  Prof. James Crawford refers to this treaty in his book ‘The creation of states in international law’ as one of the earliest such agreements recorded.  Prof. S Arasaratnam’s work on the Dutch Period refers to the details of this treaty and points to the issues pertaining to sovereignty.
The implication is that the Kandyan Kingdon had the right to cede that portion of land and that it continued to have sovereignty over the rest of the territory until the British obtained full control of the island in 1815. 
In 1766 therefore there was no question of sovereignty of any other polity and when the relinquished sovereignty was recovered and reasserted in 1948 by the State of Ceylon it naturally reverted to the political geography prior to the signing of that treaty. 
That treaty, moreover, is the genesis of the demographic realities of today’s Eastern Province where the bulk of the Tamil population lives on that 10 mile wide strip of coastal land.  Their ancestors were brought there by the Dutch to grow tobacco. Even today the majority of the Grama Niladhari divisions contain a Sinhala majority population. 
If the issue of homeland requires a longer throw back into the past, we can go to the 10th Century, to the golden period of Chola expansion/invasion and the invasion of the island by Raja Raja Chola in the year 993.  Raja Raja Chola is also known as a builder of Hindu Temples.  The inscriptions at these places, according to the Archaeological Survey of India, resolve all doubts about traditional homelands and sovereignty.  The inscriptions at the temples in Tanjavur and Ukkal speak in glorifying vein that Raja Raja Chola conquered many countries, including one ‘Ila-mandalam’.  The inscription elaborates that this ‘was the country of the warlike Singalas’.  The plunder of wealth, one notes, is not from ‘Singalas’ who lived in ‘Ila-mandalam’ (which is a corruption of ‘Sihala’ or ‘Hela’) but the land of the ‘Singalas’, whether they were warlike or not being irrelevant to the issue. 
The archeological evidence shows that what is today called the Northern and Eastern Provinces were at one time the heartland of Buddhist civilization in the island.  Although there have been claims that these were the work of Tamil Buddhists, the thesis is not supported outside the rhetoric. 
I conclude that the claim is a fiction and one which was not only a key element of Tamil chauvinistic propaganda but a notion that stands squarely in opposition to reconciliation among communities. 
I submit however, that to the extent that history is version, there is a manifest need to have the issue cleared once and for all so that no doubts remain regarding the issue of sovereignty, ownership and claim. I propose that a historical audit be administered where all claimants are required to provide adequate substantiation divested of rhetoric and buttressed by independent authority and corroboration.  I submit that reconciliation requires a resolution of competing theories about exclusive rights to territories, while offering the caution that the notion of ethnic enclaves rebels against reconciliation and moreover is not supported by demographic and geographical realities. 
In this regard, let me speak to the much-bandied term pertaining to ‘resolution’, i.e. devolution and within it in the 13th Amendment to the Constitution. 
I submit that devolution as a constitutional and political mechanism for resolution makes sense only if history, geography, demography and economic/development prerogatives support it. I submit that devolution fails on all counts and as such the 13th Amendment is an aberration for all these reasons, not to mention its illegality, its violation of democratic spirit in enactment and implementation and delivery failure. 
Even if ethnic enclaves do not exacerbate mutual suspicion among communities, they need to exist for devolution to sit in concord with reconciliation.  The demographic reality is that the majority of Tamils live outside the Northern and Eastern Provinces and this face cannot be attributed to the conflict alone.  The geographical reality includes the fact that in the Eastern Province that majority of the land area is inhabited by communities where the Sinhalese form the vast majority. 
Devolution, as per the 13th Amendment, has been proven an economic and political failure, with two-thirds of monies allocated being spent on maintaining political structures with the benefits accruing in proportions horrendously skewed in favour of politicians. 
Devolution, moreover, rebels against current economic thinking on development. The unequal distribution of resources does not support development models that envisage multiple economic and commercial hubs. 
Devolution, if its logic is played out to the end, could for example result in vast regional anomalies, with the Western Province, for example objecting to surpluses generated therein being handed out to non-performing or less affluent provinces. 
Accordingly, I submit that the 13th Amendment be reviewed in its entirety, especially on its predicate, that of claimed grievances.  If grievances pertaining to territory are found untenable then all territory-based proposals, I submit, are unscientific and therefore require rejection.  A pandering to political realities based on constructed mythologies can tide a country over in the short term but necessarily generate further rupture down the line.  Constitutional enactment should not be frivolous and should not pander to the whims of the most skillful rhetorician.  It should rather be sober, realistic, reference the past and look to the future.   
My contention is that the traditional homeland thesis is flawed and therefore resolution on relevant lines doomed to failure.  In the absence of a robust case for devolution, minority grievances must necessarily defer to the notion of citizenship. Let me therefore comment on the second element of the grievance thesis, that of citizenship anomalies.   
I have no doubt in my mind that there have been numerous instances where minorities, particularly Tamils have suffered injustice and been at the wrong end of citizenship anomalies in terms of access to services, language-related obstacles and opportunities.  In many instances, constitutional provision has proven inadequate in resolving inequities.  Sloth, lack of political will, inefficiency, lack of resources including skilled personnel and also racism have resulted in ensuring that minorities are short-changed in many areas of social, economic and political life.   
Let me interject here the caveat that citizenship anomalies are not the preserve of any particular community.  Who after all talks of the grave injustices done to the Kandyan Peasantry and the related dispossessions?  Who talks of regional disparities and class-related anomalies?  Who talks about the injustices done to Buddhists and the vandalism, dispossession and cultural genocide they’ve been at the receiving end of?  The truth is that societies are not flat, they are made of hierarchies. There are institutional and processual factors that privilege some and marginalize or irrelevance large sections of the population.  It is true also that many of these anomalies are ethnic-free. 
On the other hand the existence of one disjuncture does not justify the perpetuation of another. We are talking about reconciliation here and it pertains principally to the issue of inter-ethnic harmony.  I submit that there are three areas that require urgent attention and relevant resolution: citizenship rights, security and sense of belonging. 
Citizenship rights
Citizenship is a notion that derives principally from constitutions and legal provisions. It also pertains to administrative sensitivity to particularities and mechanisms to address these.  I contend that resource lack is a factor, but nevertheless insist that not all delays and non-implementations can be attributed to this.  A more robust regime of implementation is required to resolve the day-to-day problems of the citizenry which find exacerbated articulation among minorities in certain instances. 
Citizenship rights can resolve many anomalies but subject to the qualification of adequate constitutional provision to insulate the citizen from the politician or the powerful.  They therefore are predicated on there being adequate systemic checks and balances to correct institutional flaws in terms of transparency and accountability.  They are not about special privileges for anyone but about ensuring equality across the board. 
I submit that the 1978 Constitution is patently anti-citizen and that well-being is largely dependent on the benevolence of the powerful.  Given power imbalances across society the overall health of society is therefore a lottery.  This needs to be corrected immediately so that institutional arrangement is sturdy enough to override whim and fancy of particular ruler.  I submit that the 18th Amendment was a step back in terms of this objective and that whatever ‘resolution’ of minority grievance that ensues would be in the form of ruler-largesse and not citizenship right. 
It is natural that security is a serious concern for Tamil people, given the context in which these hearings are being held.  Propaganda-led suspicion and the reality that the vast majority of personnel engaging the LTTE were Sinhalese overrides often the reality that the very same personnel rescued a population largely made of Tamils from the clutches of a terrorist and the agonies of protracted war.  The degree of threat required part suspension of normal legal provisions and the law turned a blind eye to a lot of informal processes.  I submit that while such departures are inevitable in times of war and create and feed a culture of lawlessness, post-war realities require a return to and a more stringent reiteration and enforcement of the law. This has to include a correction of flaws existing in the overall framework. 
The issue of ‘security’ is not a concern peculiar to minorities. It is a concern for all citizens. In this regard due acknowledgement is necessary of the fact that destabilizing forces exist and exist in vibrancy, both here and abroad, and that they operate in concert and possess a well-oiled mechanism to paint fiction as realities, exaggerate anomalies, and move powerful players in the international community against the state and by extension the people of this country. 
While the end of war considerably alleviated the sense of insecurity among all communities and especially Tamils in the Northern and Eastern Provinces who were unfortunately resident in the principal theatre of conflict, this fact is only consolation and relative merits should not and cannot be allowed to be turned into perpetual excuse for system-leak.
I acknowledge that courtesy of rabid pro-LTTE propaganda and meanness of spirit of certain key players in the international community, serious questions have been raised about the conduct of the military operation to eliminate the terrorist threat. Although these allegations even in aggregate do not indicate systemic violation of accepted practice, although they are utterly insignificant when one compares the track record of countries that have been raising shrill objections and demanding investigations, I submit that they need to be addressed in order to ward off unnecessary and distracting pressure on the country as it strives to move forward in the aftermath of a long and bloody war and in order to ensure more stringent submission to the basic norms of humanity in the future.  I submit the following points in this regard.  
1.      One of the important and critical issues that the LLRC has to address is the issue of ‘accountability’; i.e. how proper investigations and inquiries into allegations of crimes committed by all parties during the last stages of the armed conflict are to be conducted.
2.      I strongly believe that the Armed Forces of Sri Lanka did not pursue a policy of intentional and systematic harming of civilians. There is no evidence to prove that the Armed Forces carried out such a policy. And, the massive and remarkable humanitarian mission of saving the lives of some 300,000 civilians from the clutches of the LTTE during the last stages of the conflict could not have been carried out so successfully had the government pursued a barbaric policy of killing or harming innocent civilians.
3.      But we need to understand that given the nature of the terrorist group that the Armed Forces had to confront and given that group’s tactics and mode of operation, there could have been instances when the Armed Forces would have been faced with the enormous difficulty in distinguishing combatants and civilians. This is natural in any type of armed conflict and in one especially between forces of a State and a terrorist group which contains combatants (and suicide bombers) dressed as civilians.

4.      In such a context, there could have been instances when innocent civilians were harmed. And where allegations and accusations have been leveled (and these allegations, accusations and concerns relate in particular to those raised before this Commission by people especially in the Northern and Eastern parts of Sri Lanka), such allegations should be properly investigated.
5.      In addressing this issue of ‘accountability’, there are, I believe, two important issues that ought to be borne in mind. Firstly, that investigating alleged violations of international humanitarian law and human rights law does not diminish, but only enhances, the image of Sri Lanka. Investigating allegations of crimes and prosecuting those who may have committed those crimes is something that responsible States do. It is something that irresponsible States do not do. And there are plenty of examples of powerful States which have, and are, acting in such irresponsible ways in this world.
6.      The objection to outside investigation is a question of sovereignty, for it assumes that all allegations leveled against a state, include petty pilfering from the Treasury, needs to be appraised by a neutral umpire. On the other hand the absence of adequate and reliable independence in arbitration can and does give strength to the call for such interference.
7.      Secondly, Sri Lanka should not be seen to be a State which is unable or unwilling to carry out domestic investigations when and where necessary. The inability or unwillingness to investigate allegations through domestic investigative mechanisms gives rise to a consequence that Sri Lanka should do well to avoid: ‘international investigation’.
8.      I am referring here to the notion of ‘complementarity’; one frequently referred to in the discipline of international criminal law, and one which is referred to even in the Statute of the International Criminal Court (e.g. in Article 17(a) of the Statute). Therefore, a State should not be “unwilling or unable genuinely to carry out the investigation and prosecution” that is made necessary when allegations are leveled by people, especially, in those areas where the armed conflict took place. Also, to carry out such investigations, the State should have proper, credible and independent institutions and mechanisms.
9.    Therefore, I believe it is the duty of this Commission to come out with clear and concrete suggestions as to how such investigations should take place. This is of utmost importance. The LLRC comprises of distinguished members who are qualified and experienced to make such recommendations and suggestions to the government.  
Reconciliation is a matter that can flounder on inadequacies in dealing with mal-intentioned entities as such level these allegations.  One lesson that cannot be dismissed is that the LTTE’s intransigence and power derived to a large extent from its success in one particular sphere of operation: propaganda.  A comprehensive mechanism needs to be established to counter outrageous claims as being part and parcel of the overall national security requirement. 
In addition, it should be recognized that one of the most effective means of rendering such moves ineffective is a happy and thriving Tamil community living in harmony with their brethren among the Sinhalese, Muslims and other communities. Development is only one part of the answer. 
Sense of belonging
Let me touch upon the issue of belonging.  This is a matter that constitutional amendment alone will not resolve.  I believe that we have a long tradition of compassion, forgiveness and accommodation that makes inter-communal embrace possible.  Regardless of histories, regardless of wrong done to one another, regardless of vandalism and desecration, the validity or otherwise of claim, the name, identity and political persuasion of wrong-doer it is clear that this island belongs to all the citizens resident in it and that progress in any sphere will be hampered if we cannot live together and respect one another. 
Wars are about the clash of arms among parties at odds with one another. And yet, wars produce commonalities that are largely unrecognized. There is commonality in the suffering, the loss of life, dismemberment, displacement, orphaning, widowing, destruction etc.  There are also commonalities in hope and fear, sorrow at the loss of comrade, outrage at atrocity perpetrated. There is commonality in heroism too.  Such things don’t have an ethnic identity. They have a human quality; that of inadequacy as well as ‘exceptionalism’. 
Close to a hundred thousand people died over the last 30 years.  Regardless of who fought who over what and with whom, there is a need to recognize that there was heroism among all groups involved in the conflict.  There is a need to recognize that every person who died, every person who lost a limb or an eye or was in one way or another incapacitated and every person who was dispossessed in one way or another, was born on this land; that everyone had a mother and a father and perhaps a son, daughter, lover, spouse or friend.  They are lamented as son, daughter, father, mother, brother, sister, wife, husband, lover or friend more so than as champion of cause or defender of principle. 
In addition to all mechanisms and processes of reconciliation stated above, I propose that a monument be designed and constructed dedicated to what I would call ‘The Unnecessarily Dead’.  It should contain the names of everyone who died an unnatural death directly consequent to the conflict, not just the combatants but those who were at the wrong place at the wrong time or was thought to have spoken out of turn or opposed when support was considered non-negotiable and regardless of name, identity and political affiliation of assassin, manner, place and moment of death. Side by side.  They were all our fellow-creatures regardless of arguments over claims and counter-claims, right and wrong, the justice or otherwise of particular strategies and their implementation.
There are everyday acts of rebellion. There are everyday acts of rupturing inter-ethnic amity. There are everyday acts that enhance our worth as human beings. These cannot be legislated.  They are born, nurtured and find articulation based on the individual’s particular understanding of the eternal verities. 
As a Buddhist I can do no better than referring to the Word of the Buddha, in particular to the Sathara Brahma Viharana or the four sublime modes of living: Metta, Muditha, Karuna and Upekkha (Loving kindness, compassion, the ability to rejoice in the happiness of others and equanimity).  Even as we employ wisdom and reason, the unguent that heals terrible wounds must contain the ingredients of compassion and humility.  That is something every individual would do well, I believe, to take cognizance of. 
I thank you for your patience and once again express my gratitude for giving me this opportunity to share my thoughts.
Sabbe Satta Bhavantu Sukhitatta.
May all beings be happy.

Malinda Seneviratne
January 14, 2011



Hiranya Malwatta said...

Malinda Words - a blog that undoubtedly will do a great service to the nation.

It is great to finally see one URL that has all the words by you Malinda.