Some reflections on political structures and accountability
| by JS Tissainayagam
( October 30, 2014, Colombo, Sri Lanka Guardian) It gives me great pleasure to speak to you today as part of this distinguished panel. I wish to thank the International Association of Tamil Journalists – or IATAJ – which has organised this forum. I also wish to thank the individual sponsors who back this effort through their varied contributions, all coming together to create this event.
So why are we here? We are here because such an exchange of ideas and opinions is impossible in Sri Lanka today. The trend of suppressing free institutions, including the media, which began in the 1970s, has continued, reaching an all time high in the past five years or so. Therefore, any exchange of political ideas other than those which the Colombo regime supports is best undertaken overseas.
Having said that, we have to also understand that sections of the Tamil media which are strongly critical of the Sri Lanka Government’s handling of the Tamil question have come under particularly vicious attack. The reason for such sustained attack is obvious.
Sri Lanka’s ruling establishment believed that Mullivaiykal had sounded the death knell on any Tamil future other than a future dictated or supported by the majority Sinhalese. What emerged when the fighting ended came as a surprise to Sri Lanka’s Sinhalese leaders. Because not only did the Tamils pursue their right to determine their political future more keenly, but they also focussed their unremitting attention on something else – accountability: Accountability for the multitude of human rights violations committed and continuing to be committed against them.
So the Sri Lanka Government targets the Tamil media because it plays a crucial role in keeping in the public sphere certain central Tamil political concerns despite the harsh restrictions imposed by censorship. I think we could examine these concerns under two headings: a) the quest for robust political institutions that better protects Tamil freedom and allows them to participate better in the political process and b) Tamils’ campaign for accountability for the violation of their rights.
But we should know Tamils’ aspiration to determine their political future and to see that their tormentors are held accountable does not involve only the media. It can be realised only through social and political processes in which the media play a part. It might be an important part and guiding role but it will be in conjunction with other forces also at work.
The process, if we simplify it, has basically two important set of actors playing critical roles. These roles are not mutually exclusive but are interconnected – each supporting and enriching the other. The first set of actors of course is Tamils living in the island of Sri Lanka and Sinhalese and Muslims who support them; the second are Tamils living outside Sri Lanka. This group include Tamils living in Tamil Nadu, Malaysia, Mauritius and other countries with significant Tamil populations, but also the Diaspora of the Tamils from Sri Lanka and important pockets of Sinhalese – many of them activists and journalists – who support them.
I am conscious of the crucial – indeed seminal – role that is played by Tamils within Sri Lanka and their brethren who support them from among the Sinhalese and Muslims in their quest for more meaningful political institutions and accountability. But my speech will not be focussed on that. There are many people here who either live in Sri Lanka or have visited Sri Lanka more recently than when I departed from its shores, and who are better placed to give more comprehensive accounts as to what that role should be.
What I would like to do in the rest of my time, is to speak a little about the Tamil Diaspora and how we could enrich the social and political processes towards the twin goals of effective political structures and accountability. To do that I will use some of the experiences I have had when speaking about issues concerning Tamils of Sri Lanka in the US. I do not think that my experience is necessarily universal, nor do I have a tightly knit argument to put forward. What I hope is that this would provoke some questions in the audience. Such a dialogue will, I think, contribute, if in but small measure, to the conversations we should be having: And which the media should lead.
One of the issues that come up when you try addressing the Tamil question in the US and I suspect in other parts of Western Europe as well, is the centrality of the 13th Amendment to any political settlement to satisfy Tamil aspirations. It is sacrosanct. It is the pivot around which the debate revolves. Many believe that the 13th Amendment is the mantra for Tamils to win back their rights and equip them with adequate political power to participate as equal citizens in the political process.
What many people fail to understand is that the 13th Amendment is already in the statute books and has been in existence for most part of Sri Lanka’s civil war. But it has proved utterly inadequate as power-sharing mechanism. In fact, even those who seriously believed that it might provide some answers to power-sharing if fully implemented have recommended substantial changes such as the recommendations of Committee ‘A’ of the All Parties Representative Committee or APRC in 2006.
What we have to understand is that fundamentally the 13th Amendment to the Constitution of Sri Lanka merely devolves power in certain areas of competence to the nine provinces of which only two are majority Tamil-speaking. The powers include some control over the recruitment of junior ranks of the police and over provincial lands, both which the Government is refusing to allow implementation at this time. The public debate today is that if these functions are allowed, the Northern and Eastern provinces will be able to pursue their developmental and political goals without interference from the centre.
I do not want to spend time on arguing the merits and demerits of different types of political power-sharing. Suffice it to say that devolution under a unitary constitution as Sri Lanka’s is, does not satisfy Tamil aspirations to participate meaningfully in the political process or help Tamils exercise their rights in a substantially better way. That is because final control of even the devolved subjects remains in the hands of central government. This includes the power of the Governor – who is the representative of the central government – to veto bills passed by the elected provincial assembly; emergency rule to suspend the legislature if the governor feels there is a necessity and impose central government rule, and others that limit development to goals set up by the central government. We have seen the control the governor exercises over the NPC in the past year as an example.
While legal and constitutional powers are one issue, the other is political culture. The sixty plus years of independence has witnessed governments in Colombo pursuing a policy of repression and discrimination against the Tamils. At times they have intensified, at others waned. But Colombo’s ruling establishments have regarded the Tamils as the ‘other’ and Tamil leaders as troublemakers. In a country where such a political culture rules, to believe that Sinhala presidents and Sinhala-majority parliaments will not use their power to dominate the Tamils – especially the Northern and Eastern provinces – is naïve. What are needed are checks and balances in the provincial council system to prevent such a culture from corrupting the independence of institutions, not weak institutions that succumb to that culture.
To my mind the 13th Amendment is inadequate as a system of power-sharing for the Tamils to be able to participate meaningfully in Sri Lanka’s political system. But the international community perceives it as the yardstick to measure whether there is adequate power-sharing or not. To them the “full implementation” of the 13th Amendment means that Tamil political aspirations have been met.
I believe there are two reasons for the unshakable faith the international community seems to be having in the 13th Amendment. The first is that India’s consistent advocacy that devolution within a unitary government as per the 13th Amendment is all that the Tamils could be permitted to enjoy. Changing that perception will require a huge effort, in which, hopefully, our brethren from Tamil Nadu will play a big role.
The second reason for the international community to be fixated on the 13th Amendment is because many organisations in the Tamil Diaspora look at the answer to inadequate devolution under the 13th Amendment only as a separate state. No alternatives in between are offered.
The problem is that the moment a separate state is mentioned in the US – and I believe in other parts of Western Europe too – you have lost your audience. Now I am not suggesting even for a moment that peaceful secession is not an option. I am not suggesting that there are no precedents in history that make it unjustified for Tamils to have a state of their own. Nor am I saying there is no moral argument for a separate state. All I am saying is that we should be more inclusive in types of political models we are prepared to examine, to debate and comment on. That gives out political worldview greater sophistication.
Eventually it might be secession that Tamils choose. But the Tamil Diaspora organisations, pushing secession to the exclusion of other options to decision-makers in the international community right now, only makes both parties speak past each other. Therefore the Diaspora – and hopefully Tamil political parties working in Sri Lanka – while showing up the 13th Amendment for its hollowness as a model for effective power-sharing could be open enough to say that other models should be tried, while of course keeping secession as an option.
Now let me go to the second issue that is of paramount concern to Tamils: accountability. Now as we all know the Government of Sri Lanka, the Liberation Tigers of Tamil Eelam and other Tamil guerrilla groups, as well as paramilitary forces working with the government, have committed grave human rights violations throughout the 30-year civil war. As such they all should be held accountable. Further, and worse, rights violations by the Government and paramilitaries continue.
However, due to the sheer level of savagery during the final few months of the civil war it is this period that has kindled the public’s abhorrence and called for investigation into war crimes and crimes against humanity. The evidence gathered by sections of the Tamil Diaspora and the many Sinhala journalists and activists in support of this is, in many ways, unprecedented.
This has today resulted in an investigation by the Office of the High Commissioner for Human Rights (OHCHR) of the conduct of both the LTTE and Government troops. The interim report was presented in September and the final report is expected in March 2015.
As we all know, while the international investigation is important it is not the be all and end all in accountability. What is unfortunate is that the international community – meaning in this instance the western democracies and their supporters – appears to be quite content to allow the OHCHR probe but little else. And that, as we all know, is hardly sufficient. That is because even after the report is presented in March, the UN Human Rights Council is expected to vote on the follow-up action. That will involve diplomatic manoeuvring and political bargaining and the Government of Sri Lanka has begun doing that already.
With Sri Lanka not a signatory to the Rome Statute, the case cannot go directly before the International Criminal Court. Therefore, dealing effectively with the perpetrators will depend on the vagaries of international politics. So what we can see is that as for the near future, other than a credible, legitimate international panel (as the OHCHR panel is), listing patterns of deliberate violations and chains of command in its report – very little more is going to happen.
Hopefully the perpetrators will at least be named, but we do not know for sure. If they are indeed named and shamed, it will undermine the credibility of the Rajapakse regime and its legitimacy in the eyes of his constituency. But realistically, if advantage is to be taken of that situation to bring about accountability there have to be other diplomatic and political initiatives set in motion by the international community.
Let me go back once again to my US experience to illustrate. When you speak to diplomats, legislative staffers and others in Washington DC about applying pressure on Colombo, they point to the UN Human Rights Council resolution sponsored by the US government.
Now that was a great initiative and we are grateful for it. But that cannot be the be all and end all of diplomatic efforts concerning the Government of Sri Lanka. What is amazing is that when you try to steer the conversation to what steps other than the UNHRC resolution can be taken, you hear the refrain “The US no has leverage.” That just cannot be! While the UN is a collective multilateral body, individual counties have bilateral leverage as well.
There are number of areas where the US does have leverage. The US, and western European countries are the biggest importer of Sri Lanka’s largest export: garments. Travel bans could be imposed on a much wider range of Sri Lankan Government officials than it is today. At present under the Leahey Amendment, military personnel involved or units accused of war crimes cannot enter the US for training. But that has to be expanded to include more people for which legislation is already in place in the US such as the expansion of the Magnitsky Act.
To US diplomats and the few US legislators interested in Sri Lanka the phrase “The US has no leverage,” is usually followed by “We have to engage.” This means that rather than treat the Sri Lanka as a pariah they wish to resume business as usual while preaching to Colombo the error of its ways. In fact there is a US Senate resolution before the Senate Foreign Relations Committee calling upon the President of USA “to develop a comprehensive and a well-balanced policy towards Sri Lanka that reflects US interests including human rights, democracy, rule of law as well as economic and security interests (my emphasis).”
Now we know that does not work. The more pressure applied on the Colombo regime by exclusion, sanctions and travel bans by the international community the better it is, and not the other way around. But there it is. I am told there is similar resistance in countries in Western Europe despite the enormous leverage they possess by threatening to impose wider travel bans, and sanctions through trade in garments and tourism.
So why is this? Why is it that western democracies, by and large, believe a accountability only the OHCHR investigation? The reason is very simple. As in other situations there is a contest whether individual national interest lies in enforcing norms for bad behaviour by blacklisting a country for the criminal conduct of its leadership. Or take the easy way out by being pragmatic, which means invest, trade resume diplomatic relations etc with a regime of war criminals with a wink and a nod.
It is the second that the Rajapakse regime is hoping for and for which it is using Chinese investments, arms exports and regional presence as bait. India has long fallen for it – grumbling that Colombo is moving deeper and deeper into Beijing’s sphere of influence but in its actions giving into the whims of the Rajapakses. It appears that important groups in the West believe this too, and could very well follow New Delhi and its new BJP ministry’s lead. Of course the other reason is that India is always wary of international investigations on sovereign countries in its region because it’s a precedent for its own violations in Kashmir and other places to be examined.
It is here I think that the Tamil Diaspora and sections of Sinhalese who have supported it can do much.
I think every opportunity should be used to lobby countries in Western Europe and the US that “engaging” with Sri Lanka by enhancing their ties with the Rajapakses is not going to work. The structures and institutions in place in Sri Lanka today have been perverted by a long war, impunity and systematic abuse and cannot be undone by calling for cosmetic changes. If there is going to be real emancipation for the Tamil people change has to be effective. It has to be an effective check on the central government’s powers by the provincial authorities, at least in some areas. This can be done either by either creating strong institutions of checks and balances under the present constitution, or devising a new product with shared sovereignty and other federal features, which admittedly is more difficult.
This role of pressuring international governments can be played by the Tamil Diaspora. Because, do not forget, how far it has come from when soon after the fighting ended in May 2009 it was portrayed as unreliable, politically immature and at best only a tool in the hands of governments and international NGOs to do their bidding. Today that has been disproven.
If political change as to come in Sri Lanka the most important thing is that pressure has to be relentless. And while governments and even some international NGOs have flip-flopped on some crucial issues it as been the consistence of the Diaspora that has channelled energies and arguments that has, in fact, forced the international community to even to do this little. And just how formidable the Diaspora has become for the regime in Sri Lanka is seen by the new laws that sought to place 16 organisations and 424 individuals on a list of terrorists.
You might ask: where does all this fits in a meeting of journalists? I think it does. It does because journalism engages the public to have conversations. And more people engage in the conversation the better. And newspapers, the internet, television and radio are ideal vehicles for those conversations.
But there have to be other instruments too. The Diaspora has to have multiple voices through organisations, media outlets and personalities. All opinions have a right to be expressed and have to be respected. But unless we realise the importance of forging common understanding – but not a single position – on important issues, we will find it difficult to influence international actors decisively, which will only be detrimental to all Tamils.
JS Tissainayagam, a senior journalist and former Sri Lankan political prisoner, is a Nieman Fellow in Journalism at Harvard. He won Peter Mackler Award for Courageous and Ethical Journalism (2009) and the CPJ Press Freedom Award (2009).