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yajitha's Blog
NORMALISING THE EXCEPTION: THE STATE OF EMERGENCY IN PEACETIME
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In response to a call by the Opposition and civil society to lift the state of emergency and to repeal the Prevention of Terrorism Act (PTA) in consequence of the end of the war, the Leader of the House Nimal Siripala de Silva informed Parliament last Tuesday, 26th May 2009, that the Government has no intention of doing so at present. The stated reasons are that the threat of terrorism continues, remaining LTTE cadres in hiding need to be weeded out, and investigations regarding those already in detention are incomplete.
This is a predictable and even unsurprising response from the government, because as students of states of emergency will know, the present government is acting in broadly comparable terms with both its predecessors as well as many other governments elsewhere. This is due to what I have described elsewhere as the ‘normalisation of the exception’.
Implicit in the central tension between order and democracy which pervades the constitutional and legal treatment of states of emergency is the notion that crises and emergencies are the ‘exception’ to the norm of constitutional government, and accordingly, that legal provision for emergency measures be presumptively based on a return to ‘normality’ as quickly and with least damage to the democratic order as possible. This recognises that some of the ordinary checks and balances as well as certain liberties may be restricted or even altogether suspended during a crisis, but it does not mean granting a constitutional carte blanche to the executive in perpetuity.
However, in the Sri Lankan experience, what is immediately clear is that the presumption of exceptionalism with regard to emergencies cannot form a comprehensive basis of an account of states of emergency, because the exception has quite clearly become the norm. From the early 1970s, responding to two insurgencies in the South and the protracted civil war, Sri Lanka has been governed under emergency powers more or less continually. Thus the constitutional and legal regulatory framework embodied in the Constitution and in the Public Security Ordinance (PSO) must be assessed as more or less permanent power-conferring provisions for general governance, notwithstanding their intended purpose as occasionally invoked, special and temporary measures. Until such time as the government determines that the last LTTE cadre has been captured, killed or otherwise dealt with, it is no surprise at all that it will continue to avail itself of extraordinary powers conferred under both the state of emergency as well as the PTA.
In contemporary experience, the normalisation of the exception has several characteristics. The first is that each precedent sets a higher bar for the next, which inflates the scope and nature of extraordinary powers with each successive emergency. That is, powers that are granted to government during an emergency set precedents not only for future emergencies, but also for the notion of normalcy itself. Whereas the nature and scope of the powers deemed necessary to deal with the original crisis would have been judged according what were the normal conditions preceding that crisis, in subsequent emergencies, this question would be decided by reference to the powers of preceding emergencies. A good contrast would be between the (what seem now like quaint and rather innocuous) emergency powers granted during the communal riots of 1958, with the vast array of powers now available to the government under various emergency regulations. To be sure, the threat posed by armed conflict in the recent past was exponentially larger than the civil commotion of 1958, but that does not vitiate the broader observation.
As the acceptable boundaries of emergency powers become redefined in this way, the public becomes accustomed to the expansion of government, as well as to measures they would ordinarily have rejected. This ‘getting used to’ effect, for obvious reasons, starts with government and officialdom. There are several characteristics of this dynamic. First, it is easier to enact new measures than to review whether what is already available is sufficient, resulting in an accumulation of a complex web of emergency laws and powers. Secondly, officials grow accustomed to the convenience of lesser legal restrictions and limitations on their scope of action, resulting in an unwillingness to give up that freedom of action when the threat abates. Thus when powers of detention without charge for long periods in terrorism related matters have been made available during the war, it is unlikely that law enforcement authorities would willingly subject themselves to the procedural and substantive constraints of the Penal Code and the Code of Criminal Procedure, as long as the spectre of terrorism remains. Thirdly, we have seen the use of emergency powers used for purposes other than for which they were enacted. A comprehensive study of emergency regulations in force in 1992 by the University of Colombo found that they were used for regulating such matters as the adoption of children, edible salt and driving licenses.
Another feature of how the exception becomes normalised is in the role of the judiciary. In Sri Lanka we have time and again seen how judges are generally reluctant to second-guess the executive during an emergency, the time ironically that their role as guarantors of fundamental rights assumes the greatest significance. Among many, one example of this is how the Supreme Court last year refused to intervene in the detention of the journalist J.S. Tissainayagam, despite his claim that even the attenuated procedural safeguards under the emergency regulations had been denied him.
Apart from this is the, often imperceptible, occurrence of transubstantiation, whereby due to the constant state of emergency, provisions of ordinary law and even the constitution come to be continuously interpreted in the light of emergency rule. A very good example of this is that a large segment of the fundamental rights jurisprudence of the Sri Lankan Supreme Court concerns violations of fundamental rights through the exercise of emergency powers. Especially in the case of infringements of critical civil liberties such as the freedom of expression, many of the Supreme Court’s most important pronouncements have been concerned with resolving emergency regulations, or executive action thereunder, inconsistent with fundamental rights. Without belittling the Supreme Court or its many important determinations, the point remains that an important source of law in a common law system, in this respect the case law of the highest court in the land deciding the reach of the constitutional bill of rights, has not evolved under normalcy, but rather, under a normalisation of the exception.
If this helps explain the normalisation of the exception, it does nothing to exonerate government from continuing to use the spectre of terrorism to perpetuate the ‘National Security State.’ In any event, the normalisation of the exception in the past three decades has been due to the undeniable existence of armed conflict of one kind or the other throughout that period. Recognising that the State should be empowered to deal with these armed challenges, certain special powers were given to it. Now, though, rid of the scourge of terrorism, we have peace. So what’s the argument? Extraordinary powers under a constitutionally regulated state of emergency are conferred on government to deal with grave and exceptional challenges threatening the life of nation; not to allow it to habitually override the core democratic values of the constitutional order such as fundamental human rights, the rule of law, and the separation of powers, or for use during peacetime. If the State uses emergency powers to institutionalise authoritarianism, then the moral and political justification for constitutionally providing for emergency powers is fatally undermined, and there would be nothing left worth defending in the constitutional order.
The powers that the government has arrogated to itself under various emergency regulations (especially since 2004) and the PTA are extraordinary, extensive and intrusive, so inconsistent with international standards regarding both human rights and states of emergency, and applied with such arbitrariness and insensitivity to civil liberty that there were legitimate questions even at the height of the war as to whether they were really legitimate in a democracy. The government will use the consensus generating effect, at least among the majority community, of its military success to perpetuate not only the state of emergency but also the specific powers currently available to it. But the question is whether if the intention is to really return to normalcy, all of the powers currently in force are necessary. Given the crushing military defeat of the LTTE (thus removing the clear and present danger threatening the life of the nation), many of the more pervasive emergency powers may and must be repealed, leaving only those, within a stated and limited timeframe, that are absolutely necessary for dealing with the remaining members of that organisation. If not, valid questions can be raised regarding both good intentions as well as commitment to addressing the rights abuses that occurred under emergency, and worse, the institutionalised impunity for extra-legal action that has to be urgently addressed in a return to civilised normalcy.
If nothing else, it ought to be the inexorable logic of the government’s own public presentation of victory in the war against the LTTE that the state of emergency must come to an end sooner rather than later. That the government refuses to lift the emergency, or at the very least, give a concrete and reasonably proximate date for its removal is, therefore, cause for disquiet.
A martially victorious government is still the government of a democracy, accountable and changeable, and the celebrating people of Sri Lanka would do well to remember the salutary words of John Stuart Mill: “Evil for evil, a good despotism, in a country at all advanced in civilisation, is more noxious than a bad one; for it is far more relaxing and enervating to the thoughts, feelings, and energies of the people. The despotism of Augustus prepared the Romans for Tiberius. If the whole tone of their character had not been prostrated by nearly two generations of that mild slavery, they would probably have had spirit enough left to rebel against the more odious one.”
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An After Thought by an Inside Outsider
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After a war is won, there is always the after thought. Leaders from conflict parties, either dead or living, will be portrayed either as martyrs, heroes, traitors, terrorists….the list is endless. Which ever side one takes on the debate of romanticising the vanquished or demonising him, it is always interesting to see what the other party has to say.
Have been observing the way in which people reacted in the post-war (can we say that yet?) context. Nationalistic spirit knew no bounds. Even the ardent opponents of the government praised its military campaign and the subsequent victory of annihilating the LTTE. The President would have been in a mental state, where ANY world leader would aspire to be in. Enviable position. It would have been the proudest moment for the Commanders of the forces. The least that the soldiers who fought and found the dead body of VP could do was to fire in the air. The mirth; The victory of three decades. The majority of people would have had a sigh of relief. The Colombo metropolis, where the heavy weight of elites - the intellectual and all the other varieties - of Sri Lanka reside, would have had more than a sigh of relief. Every one had a reason to rejoice for theirown reasons.
I had my position on this conflict - lived in the country for nearly 13 years; have seen many heightened forms of terrorism; lived through the insecurity and unpredictability of each moment; days where bombing takes place 200 meters away from you and you wonder, that you could have been 10 meters away and got caught; days where you decide to take a route and then for some strange reason take another one and be in awe to hear that there had been a blast down the road, which you have just decided to avoid. Unpredictablity of life; and the morbidity of death. But still my views would have just been that of an outsider. My anguish too must have been that of an outsider; who had a choice, if I wanted to make one. But there was a country at large, which had no choice, caught up in a protracted armed conflict of the deadliest kind. Many children were panic stricken in the nights when LTTE carried aerial attacks in Colombo; they hated and dreaded an army check point after that. A child of 6 years of age stops talking because of terror; what chance was left for him to grow up as a normal adult?
I have friends who were born at the time of the beginning of the conflict; their reactions are notable. They are adults, intelligent enough to understand and rationalise the belligerence of armed fighters. Their entire childhood, adolesence and youth had been caught up in the conflict. Their minds hardly knew a chance to know what it meant to be secular (well, Sri Lanka is not a secular state). They had less chances of making good tamil friends - quite contrary to John’s generation where he says he had close Tamils friends (still continue to be so) in the University and work places, who shared a drum stick curry and cracked a joke on each ethnicity’s idiosyncrasies and eccentricities. Friends of my generation lack that - probably, if they did crack a joke of the kind, it would have been termed as ‘ethnic polarisation’ or ‘marginalisation’ or something to that effect. These are times I am glad that I was born and bred in India, where we can have Mallu, Sardar, Tamil jokes, enjoy the spirit of it in perfect abandon, laugh at ourselves and yet not be bitter. What a lot they lose, who have never known how elating that feeling is!!!
My thoughts and experiences are all about Colombo and it suburbs. My sentiments are built on my own experience of agonizing moments of waiting for a husband (or another extended family member) who had gone down town where there had been a blast. The moment a connection is made which assures his safety, my problem was over. Life got back to normal when he reached home. Meaning, I am a Colombist (if I can coin a term). A Colombist’s view can be very distorted and far removed from the reality out there. It could be narrow; nevertheless, it is a view, it is an experience lived through my own reality. Each one has his or her own reality and that is their truth.
All what one could do is to imagine the untold misery and hardships of the innocent people who get caught between the firing lines. The feeling of discrimination and having to feel a second citizen in one’s country of birth. The feeling of disowning. The feeling of fundamental rights being violated. The lack of opportunity to make a police complaint in one’ own language! Serious matters. Will these be addressed?
I wonder what a genuine Tamil sentiment is, at this time of Sri Lankan history. I do have friends - but somehow I always feel, they do not speak the way they truly feel; probably due to their own reasons of ‘having to exist’ as some one once said.
Just an after thought. I know I have more to write on this.
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Holding Out For a Hero
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Well it’s not exactly a hero. What we are really holding out for is a statesman - but that wouldn’t have made a catchy title. Yet it is a statesman that is needed in Sri Lanka at this juncture in its history. Having finally made it over the daunting hurdle of terrorism, which had us mired in a mud heap for so many decades, Sri Lanka is now emerging, scarred but optimistic, out of the wasteland of war. As flags fly in a uniting show of joy - a vast majority of people look forward with hope to a new dawn - a new country and another chance to catch up with the economic success of the nations around us.
To reach this destination we need to step on the right road - for there are many roads leading in diverse directions and it is easy to get lost once again. To find the right path and keep us on track we need a leader who is capable of rising above the fray, in order to meet the gargantuan task that lies ahead of this nation. Mahinda Rajapakse’s victory speech in Parliament indicates that he is aware of what is required to put us on the road to a pretty future. But words are hollow if not followed by deeds.
“Those who love the country and those who do not” - are now apparently the only two groups that exist in this country. A wonderful statement - but one that should not be used to stifle dissent - whether the dissent originates from the opposition political parties, or from the media, or even from disgruntled but innocent members of the minority community. A statesman should be capable of cleverly deflecting the balls of negativity pitched at him - without losing his cool - or his opponents losing their lives. A statesman should also be able to discern the difference between the empty rhetoric of his distracters, and the constructive criticism of those who do love this country - but who have a different opinion to that of our leaders.
A statesman should not permit violence against foreign embassies in our country - even if the violence is only aimed at the walls of these embassies. A statesman does not stoop as low as the posturing, two-faced behemoth that is known as the “International Community”. A statesman wins them over with actions that indicate that we are a step above - that we abide by the tenets of peace and tolerance that is the basis of Buddhism.
When I try to think of world statesmen - very few come to mind - but the one’s who do are Abraham Lincoln, Mohandas Gandhi and Nelson Mandela. These are men who stood for lofty goals - who dreamt big dreams - the noble Gullivers who strode amongst us Lilliputians. These are men who stood for equality, peace and non-violence - whose achievements we all like to emulate, but which many of us don’t have the will to attempt. It is easier to give into greed, to give into power, to give into long festering preconceptions. But what made these men stand out is that they put their nations before themselves - despite the many physical and mental hardships they underwent, and the loud opposition they faced.
So Mr. Rajapakse - this is your moment. You have the approval of the majority of this nation. You, at this point in history can do no wrong - and as such you have the ability to do so much that is right. You have the opportunity to steer Sri Lanka away from racial distrust, to rise above petty politics. You alone, with the support of your lieutenants in Parliament and within the armed forces, can prove to the world that Sri Lanka is capable of moving beyond its dark past, to a society that is truly accepting of its racial diversity. It’s a tough call. As I pointed out - in history there are very few who were capable of transforming themselves into statesmen. Yet there were those who did - and their stories will never die.
Even within our history we fete King Dutugemmunu. He too united this country after winning his battle against Elara. But what we remember most about him was his respectful treatment of his slain enemy - and THAT is a true sign of a statesman.
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THE STRUGGLE FOR EQUALITY, JUSTICE AND DEMOCRACY IN SRI LANKA
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This year marks the twentieth death anniversary of Rajini Thiranagama, doctor, lecturer, feminist and human rights defender, and the first death anniversary of human rights lawyer and political activist Maheshwari Velauthan. The former was shot dead by the LTTE as she cycled home to her children after presiding over an Anatomy examination, the latter shot dead by the LTTE as she cared for her sick mother. They were among thousands of Tamils killed by the LTTE simply because they did not agree with it. For Tamil progressives like them, the defeat of the LTTE mitigates one source of terror.
The LTTE’s claim to be the sole representative of Sri Lanka’s Tamils could be sustained only by the physical liquidation of all those who disagreed with, criticised, or simply posed a challenge to its leadership, even from within the organisation. This meant that all Tamils with a different vision of the struggle for equality, justice and democracy had to choose between risking their lives (and, like Kethesh Loganathan and T. Subathiran, all too often losing them), accepting security cover from the government of Sri Lanka (which obviously crippled their capacity to criticise that government), and exile. Any Tamil who believed in the possibility of Tamils living alongside people of other communities in a united Sri Lanka was considered a traitor and sentenced to death. Probably the first of such ‘traitors’ to be executed by Prabakaran was Alfred Duraiappah, the popular Mayor of Jaffna, who was killed in 1975; Neelan Thiruchelvam and Lakshman Kadirgamar came later. Standing up for freedom of expression, freedom of association and the right to vote in free and fair elections were all aberrations punishable by death. Parents who resisted the forcible conscription of their children received violent punishment. Indeed, questioning the decisions of the Supreme Leader in any way was an act of treachery. In fascist Tamil Eelam, internal terror was all-pervasive.
Could an organisation which destroyed the freedom of Tamils fight for their liberation from oppression? Clearly not. Could an entity which stood for an exclusively Tamil nation, in which Muslims and Sinhalese would be massacred or ethnically cleansed, pose an ideological challenge to exclusivist Sinhala nationalism? Hardly. The LTTE was simply a Tamil translation of the most reactionary Sinhala fascist politics. Where Sinhala nationalists stereotyped all Tamils, Tamil nationalists stereotyped all Sinhalese. Where the former claimed exclusive ownership of the whole of Sri Lanka, the latter claimed exclusive ownership of a third of the island. The politics of both harked back to the days of absolutist monarchies. Far from helping Tamils in their struggle for democracy, the LTTE created a further obstacle to be overcome. From this perspective, although its demise has occurred in the most horrific circumstances, prospects for the struggle for democracy in Sri Lanka have improved.
Conditions for a Successful Struggle
However, the success of this struggle would depend on several factors. The reactionary mirage of a totalitarian, exclusively Tamil state needs to be laid to rest once and for all. Such an agenda does not acknowledge the reality in Sri Lanka, where diverse communities are represented in all parts of the island – indeed, the most oppressed of the Tamil-speaking communities, the Hill-country plantation workers, did not fall within the proposed Eelam at all – and diverse peoples and cultures are inextricably intertwined. The incredible violence required to tear us apart cannot be allowed to go on. Whether we like it or not, we sink together or swim together.
Instead, Tamil progressives would need to fight for a vision of a democratic Sri Lanka which is a homeland for all its diverse peoples. They would need to fight for this in alliance with other minority communities as well as Sinhalese progressives. And they would need to win over a majority of Tamils to this vision: not so difficult within Sri Lanka, harder in the diaspora, much of which is disconnected from the reality in Sri Lanka in many ways. This effort would need support from Tamil and Muslim political parties and other formations which have hitherto tended to remain in the government fold out of fear of reprisals by the LTTE. Now that this threat no longer looms over them, they need to come out and present their demands to the Rajapaksa regime and ruling party, threatening to withdraw their support if the demands are not met.
The same is true of Sinhalese progressives in Left parties and other formations. While some have consistently supported the struggle of Tamils for justice, others have veered to one side or the other. We do not need to go as far back as the 1960s and 1970s, when Left parties which had previously stood up for minority rights when Upcountry Tamils were disenfranchised and the Sinhala Only Act was passed joined the Sinhala nationalist bandwagon. As recently as January 2008, Tissa Vitharana of the LSSP – who had earlier laboured conscientiously to produce a viable political solution based largely on the excellent proposal presented by a multi-ethnic majority of the Panel of Experts to the All Party Representative Committee (APRC) – lost his nerve, and instead of presenting the real APRC proposals to President Rajapaksa, presented him with a mutilated version of the 13th Amendment (introduced as a result of the Indo-Lanka Accord) which had just been given to him by the president! This bizarre farce was yet another instance of Sinhalese Leftists aligning themselves with a government dominated by Sinhalese fascists. If these Leftists wish to redeem themselves, they too must threaten to withdraw their support to the government unless it accepts and implements far-reaching political reforms that redress the genuine grievances of minorities.
On the other side, some Sinhalese Leftists, who had split away when their parties embraced Sinhala nationalism, subsequently provided implicit support to the LTTE’s fascism in the name of supporting ‘the right of Tamils to national self-determination’, ignoring Rosa Luxemburg’s pertinent question: who determines the will of the ‘nation’? In this case, the answer, clearly, was the Supreme Leader, Prabakaran, who took it upon himself to determine the lives – and deaths – of all Sri Lankan Tamils. Was this a worthy cause for socialists to support? Surely not, given that it involved slaughtering Tamil socialists! Paradoxically, their implicit support for the Tamil fascist agenda indicated unconscious Sinhala chauvinism (or, in the case of their European comrades, racism): the belief that Tamils are inferior beings, not yet ready for democracy. Furthermore, even Lenin did not argue for the ‘right to national self-determination’ in circumstances where an oppressed community was dispersed among a national population. Creating ethnically ‘pure’ enclaves, as the LTTE attempted to do in 1990, involved massacres and ethnic cleansing on a massive scale, defined in international law as crimes against humanity. A genuine liberation movement, which is supported by the people, cannot be defeated militarily. The military defeat of the LTTE occurred because it and its agenda were rejected by the Tamil people in Sri Lanka whom it claimed to represent.
These Leftists, along with Sinhalese liberals who followed a similar path, have to redefine ‘self-determination’ to mean real control over their own lives for all Tamils – and other minorities – in all parts of Sri Lanka. They could then play a much more useful role, persuading the Sinhalese masses to support this cause too. There is certainly a minority of rabid Sinhala chauvinists, but the majority of Sinhalese do not hate Tamils. Celebrations of the government victory over the LTTE have been interpreted as an expression of Sinhala chauvinism, and some of them have certainly been orchestrated by chauvinist elements. But Nirupama Subramanian pointed out that there were similar celebrations when the Cease-Fire Agreement was signed in 2002 – indeed, celebrations began in December 2001, when the UNP was elected and promised to bring peace – and Chandrika Kumaratunga swept to victory in 1994 on a promise of bringing peace through negotiations. What the war-weary people (including Sinhalese people) of Sri Lanka wanted, and still want, is peace. At that time, they thought that negotiations with the LTTE would bring peace, but they were disappointed. Now they think that a military victory over the LTTE will bring peace, but are likely to be disappointed again, unless Sinhalese progressives can convince them that only equality, justice and democracy can bring a lasting peace.
A precondition for this is that they must be made to understand that there is a problem which has not been solved by the military victory, since recognition of a problem is a necessary step for its solution. Many Sinhalese – including members of the English-educated diaspora – are astonishingly ignorant about what has been happening in Sri Lanka since Independence, taking the position that the only problem has been one of terrorism. Educating them about the persistent discrimination and violence against Tamils, which led to and fuelled the conflict, would be a vital contribution for Sinhalese progressives to make. It is also worth reminding Sinhalese people in Sri Lanka that equality is the bedrock of democracy, and that they allow democracy to be undermined at their own peril. The last time they allowed state security forces to torture and kill Tamils on a large scale, in the late 1970s and early 1980s, this was followed by the same security forces torturing and killing an estimated 40,000-60,000 Sinhalese between 1987 and 1990. The Rajapaksa regime shows disturbing signs of sliding into the same totalitarianism unless it is halted by the public. The struggle for justice and democracy is a programme which can unite working people of all communities, rather than dividing Tamils from Tamils, Sinhalese from Tamils, and Tamils from Muslims.
Immediate Programme for Progressives of All Communities
The most urgent priority is to ensure the survival and fundamental rights of all the civilians displaced by the war. Failing this, the death toll will mount catastrophically,
and this time, the government alone will be to blame. Food and water, medicines and doctors, clothing, shelter and so on must be procured from all agencies which are offering to provide it, and distributed in a rational manner which does not simply ensure the survival of the strongest, as some women in the camps have complained. The government itself has appealed for help, making it clear that it cannot cope with the task, so international agencies should be involved in the relief effort. Unless they and independent reporters are allowed in the camps, sickening stories of rapes, killings (especially of women and girls), abduction of children, and starvation deaths cannot be discounted. After all, senior citizens were released from the camps only after the District Magistrate in Vavuniya determined that 30 of them had died of starvation and malnutrition, and more were dying on a daily basis, so there is official confirmation of this particular story.
This is not just a matter of humanitarian concern. These people are citizens of Sri Lanka, and incarcerating them in prison camps, as has been done so far, is a violation of their fundamental rights. If the government fears that terrorists are hidden among the civilians, they need to screen them rapidly, move LTTE fighters into prisoner-of-war camps, register both civilians and fighters, provide civilians with identity cards and freedom of movement, and provide fighters with humane conditions and rehabilitation. All this needs to be monitored by the UN and ICRC. Unfortunately, we cannot trust the government, given several high-profile killings (like the killing of five students in Trincomalee in 2006, the massacre of 17 ACF workers, and the murder of Lasantha Wickrematunge) and thousands of less-publicised ones, all of which bear the mark of state-linked death squads. Unless some agency other than the state monitors the screening and the camps, and keeps lists of both civilians and LTTE cadres, there is every possibility that thousands of camp residents will be abducted and killed.
Keeping a register of people in the camps and giving them freedom of movement is also vitally important for families that have been separated, and people desperately trying to locate loved ones. The President, in his address to parliament, referred to mettha (loving kindness) and karuna (compassion), but there is little evidence of these Buddhist values in the way that these traumatised civilians have been treated by the state. Running the camps by a civilian administration, access to them for international and local aid workers, and freedom of movement for the inmates would be preconditions before we can talk of mettha or karuna.
In the slightly longer term, all the displaced should be assisted to resettle back in their original towns and villages by the end of the year. Now that the war is over and terrorism, according to the president, has been vanquished, there is no need for High Security Zones, and industrial zones and the Indian-built power station also should not be located on the land of displaced people, neither in the North nor in the East. It is important to emphasise that the displaced include tens of thousands of Muslims, some of whom have been languishing in camps since 1990, and any resettlement programme must cater to those Muslims who wish to return to their original habitats.
The end of the war and defeat of the LTTE also demolishes the excuses for various other ‘special measures’, among them: carrying of arms by cadres of other Tamil groups, supposedly in order to defend themselves from the LTTE: all these cadres should be disarmed; the emergency provisions and anti-terrorism legislation which have destroyed the rule of law in our country and allowed the state to act in a dictatorial, brutal and corrupt fashion: all these should be withdrawn forthwith; and the silencing of the press and imprisonment of journalists, which should be replaced by the immediate release of journalists like J.S.Tissainayagam and the restoration of freedom of expression. All these special measures promote state terrorism, and what is the point of eliminating LTTE terrorism only to fall prey to a different band of terrorists?
In the longer term, it is crucially important to introduce and implement a new, democratic constitution, without which the cycle of violence will simply begin again. Mahinda Rajapaksa’s speech indicates that he has no intention of introducing a political solution to the conflict; his reference to respect for ‘the principle of the unitary state that has been established in our Constitution’ shows that he has failed to learn from history, and is therefore quite capable of repeating the mistakes that led to the war in the first place. When Sri Lanka was first defined as a ‘unitary state’ in 1972, there was no separatist movement, no militant groups; soon there were both. The same Constitution confirmed Sinhala as the only official language, gave a special place to Buddhism, and removed protection from discrimination for minorities: in other words, it was clear that a ‘unitary state’ was synonymous with a ‘Sinhala-Buddhist state’. The 1978 Constitution, which introduced the all-powerful Executive Presidency, turned this into a totalitarian Sinhala-Buddhist state.
Since 1995, there have been several attempts to formulate and put in place a new, democratic Constitution, yet the President seems to be ignorant of all these efforts, including his own creation of the APRC, when he talks about the necessity to ‘find a solution that is our very own’. Where was he when the APRC crafted an excellent political solution well over two years ago? Or was that not a ‘solution that is our very own’ because it was based on the proposals of a multi-ethnic panel of experts? Does ‘our very own’ mean ‘Sinhala-Buddhist’?
A credible political solution would need to abolish the Executive Presidency and special place for Buddhism in the Constitution; ensure real parity for Sinhala and Tamil; put in place a Bill of Rights that rules out discrimination on any grounds whatsover in all parts of the island, and guarantees other rights like freedom of expression and association; includes the right to life, which is missing from the existing Constitution; devolves power to the Provincial Councils to a much greater degree than the 13th Amendment; and ensures greater representation of minority communities at the centre through a bicameral legislature.
The minority and Left parties that are currently part of the government must give Mahinda Rajapaksa and the SLFP notice that they will quit unless he implements the measures outlined above, and thus force him to choose between them and the Sinhala Right. In the event that he chooses the latter, they should form a third front – since the UNP is as compromised as the SLFP – and start campaigning for this programme as soon as possible. Whether they win or lose the next elections is less important than demonstrating to the people of Sri Lanka – and especially the minorities, who have suffered so much – that there are political leaders in Sri Lanka willing to stand up for equality, justice and democracy.
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Monster
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The degree of denial of Prabhakaran’s death within the expatriate Tamil consciousness is the best evidence of the pathology of Tamil ultra-nationalism. Rohana Wijeweera’s followers were fanatics, but when their leader was gone, they did not go into mass denial. The hardcore elements of the Tamil Diaspora really have to get their heads around it: Elvis has left the building. The Sun God has set, and his son won’t be rising either.
The Tigers were among the best known brands in the terrorist universe and by defeating them so completely and utterly Sri Lanka and its armed forces have made a contribution to regional and global security and stability. They have made an example of the Tigers and thus made the world a safer place. Precious little thanks we have got for it.
In the movie Lethal Weapon, when the villains take his partner’s family hostage and he plans to rescue them, Mel Gibson (playing Martin Riggs) tells Danny Glover (playing his cop partner Roger Murtaugh) “we’re going to get bloody on this one – you know that don’t you?”. Well, we were always going to have to get bloody on this one, the final battles to destroy Prabhakaran, and that’s the way it played itself out. From Berlin to Grozhny such endgames are anything but pretty but that’s the way it goes when the enemy is fascist or simply fanatical. We did it much better than most – no extensive use of airpower and no antipersonnel bombs – and the only ones I can think of who have done better, were lead by someone that the UN General Assembly President Miguel D’Escoto has recently called “a saint” : Fidel Castro. Fidel is an exception. (But let me not mount my favorite hobby horse – my views on Fidel’s ethics of violence are critically discussed in the current issues of Radical Philosophy and the International Journal of Zizek Studies).
Prabhakaran was a monster who laid waste to the land and tormented its people, and he was slain, as monsters should be. It will be argued that Prabhakaran was made into a monster by the Sinhalese. That’s a cop out. As I told an audience at Jaffna university in 1982 which almost certainly included LTTE cadre, the National Guard of Nicaraguan dictator Somoza was in the habit of applying lard on the genitals of political prisoners and unleashing attack dogs on them – and yet, the Sandinista guerrillas were among the most humane and discriminating in their use of violence, which greatly contributed to their victory. Furthermore, the nature of Sinhala oppression does not in any way explain Prabhakaran’s war against the IPKF and the Indo-Lanka accord, followed up by the assassination of Rajiv Gandhi. In a Karmic cyclical coincidence, Prabhakaran paid the price as Rajiv’s family was swept into office and that too, just days before Rajiv’s 18th death anniversary. (By the way, the humanistic Sandinista revolution crested with the bazooka shell fired by Gorriaran Merlo, the leader of the Argentinean ERP, destroying exiled dictator Somoza in his armored Mercedes in the capital of Paraguay a year later.) Prabhakaran had piled up too many blood debts, in more than one party, community and country, and his fanatical fans overseas had made too much of what he and his core cadre would be capable of when they slipped the Sri Lankan cordon, for things to end in a less complete and final manner.
The call for “humanitarian access” must not be a cover for peaceful R2P or incremental “humanitarian interventionism”, achieving through the back door that which was repelled at the front gates. Those who dream and conspire of war crimes tribunals, which would punish Sri Lanka for having decapitated their favorite terrorists, have to dust off their political science (or at least in one case simply consult their illustrious father). Such international kangaroo courts succeed with defeated states and leaderships, or leaders of fragmented, failed or failing states — not a strong successful unified one like Sri Lanka, which has just won a war, exhibiting steely determination. Sri Lanka is also in the wrong continent and the wrong neighborhood for vicious nonsense of this sort to have more than nuisance value and prove anything much beyond a heuristic device to educate a nation. How can one describe and define the friends of our mortal enemy the Tigers?
So where are we now? Forget the grudging assessments of wiseacres that it is only the “conventional war “or “territorial war” that is over. The national territory of Sri Lanka has been reunified after a quarter century or more, but that is not all. The Tiger army lies destroyed on the battlefield (the stragglers are being hunted down) and the Tiger leadership has been eliminated even more thoroughly than the JVP’s was.
In 1988 I published a series entitled Unfinished War, Protracted Crisis, in the Lanka Guardian, which reappeared as a book, Sri Lanka: the Travails of a Democracy, published by Vikas, New Delhi in 1995. In it I made the basic point that while Prabhakaran always fought a total war, his enemies, the Sri Lankan state and the Indian state fought a limited war. For me, this was the secret of Prabhakaran’s success and the central weakness that we had to overcome. In these writings, and in commentaries over the last ten years in the (now defunct) Weekend Express and The Island, I drew attention to three other points: though tactically and organizationally brilliant, Prabhakaran, when viewed from a comparative international and historical point of view, was a strategic failure even in comparison with the Hezbollah, let alone the Vietnamese; the need to follow General Giap in privileging the “annihilation of the living forces of the enemy” over territorial acquisition; and the fact that Prabhakaran had never really faced simultaneous offensives on several fronts.
With the Rajapakse administration it all came together and fused: a leader and commander in chief with the requisite political will; a recomposed power bloc with a hegemonic fraction that had a strongly nationalist and even a martial tradition and came from a province with a patriotic-martial heritage and consciousness; the leadership in all three services, especially the army, which had joined a military in combat and had matured in war; public opinion that rejected appeasement and had learned the hard way that only the military defeat of the Tigers would set the nation free at last.
Prabhakaran’s monstrosity had its roots and sources, and these are not located in Sinhala oppression but closer home. When an authentic reformist option is proffered (and in September 1987, after the Thileepan fast, the LTTE was conceded 7 out of 12 seats including the chairmanship, of an interim council of a merged Northeast, with the Sri Lankan army confined to barracks), fanatics tend to reject these and continue the struggle for the original maximum objective. However, they lose the support of the bulk of the people who then shift to the side of the ex- terrorist militants striving to work the system. The most revealing moment of Tamil ultranationalist consciousness came when the LTTE fought India and later, murdered Rajiv Gandhi. Prabhakaran was not marginalized within the Tamil community. The ultranationalist Tamil mainstream stuck by him and the Tigers in a war that was not against the Sinhala foe but against a secular quasi federal democratic republic, in which Tamils had a linguistic region.
That takes us to the heart of the problem. The self image of Tamil ultra-nationalism is such that it is hostile to India when the latter does not simply forgive and forget the Rajiv murder and extend unconditional patronage to the Tamil secessionist cause. This is clear from the demonstrations in the Diaspora to the street attack on an Indian army truck in Tamil Nadu. What the Indian people in general and the Tamil Nadu people in particular thought about it is evidenced in the voting patterns in the recently concluded Indian elections.
It is the hubristic arrogance of Tamil ultra-nationalism that saw demoniac incarnation in Prabhakaran, and brought on itself crushing defeat under the guns of the Sri Lankan armed forces.
The truth is that Tamil ultra-nationalism (even in the peaceful form of the TNA) is rejectionist, in that it rejects the limits of the possible as defined by the Indo-Lanka consensus: “maximum devolution within the Sri Lankan constitution” (as Pranab Mukherjee puts it), starting with the reactivation of the 13th amendment. Thus there is a contradiction between Tamil ultra-nationalism and the existing state system of South Asia. The former demands a rupture of and with the latter, but has no capacity of enforcing it, while the sole realistic option is the reform of and within the existing state system.
For their part the Sinhala nationalists and ultra-nationalists must know that joint Indo-Lanka press statement of May 21, 2009, which must be prudently read as almost a coda or annexure to President Rajapakse’s May 19th and 22nd speeches, also represents the minimum commitment that has to be kept, the lowest price that has to be paid, for the assurance of neighborhood and regional support without which Sri Lanka cannot offset Western pressure and the Western-Tiger Diaspora bloc.
Tamil nationalism has failed in its successive projects: 50:50, federalism and nonviolent agitation, full-on secessionist war, incarnated in the Tamil Congress, the Federal party and the TULF, the Tamil Eelam armed movement and the Tigers. No return to any of these is going to work. Even decades down the road, any attempt to revive terrorist or guerrilla war will result in a swift and decisive State response informed by the lessons of temporizing that cost us dearly. The Sri Lankan armed forces is saturated with officers and men steeled in the experience of successful warfare, and this will give us a formidable military machine for many years, even decades, to come.
This leaves the famous Diaspora option. While the Tiger army has been decimated, the Tiger movement still exists, is global, and has a higher profile than ever before. It is a threat to the Sri Lankan state and society but it cannot deliver Tamil Eelam because a small minority really cannot carve out a separate state on a small island on which the vast majority is unalterably opposed to the idea, is willing pay a heavy price and wage war to prevent such an outcome, and will always throw up a leadership capable of doing so. If there is another Prabhakaran, as some portentously claim there will be, there will also be another Mahinda Rajapakse, another Gotabhaya Rajapakse and another Sarath Fonseka.
The details are now beginning to leak (see reports in the Telegraph, UK and the Weekend Australian) of last ditch, high level efforts in certain Western quarters to save the Tiger leadership. These pressures and conspiracies probably sealed the Tigers’ fate ever tighter. They give us a glimpse of the networks out there and the games some people play. The external danger should neither be underestimated nor overestimated. Prabhakaran’s Tigers could not prevail but they damaged our country and its prospects; distorted our lives. So also the globalized Tiger movement: it cannot prevail but it must be combated and defeated. The crisis of Sri Lanka’s external relations is a post-Kadirgamar crisis. The external threat to Sri Lanka will require the maturation of conditions and consciousness to the precise point that it did in the case of the military threat posed by Prabhakaran, which led to the evolution and emergence as a vanguard, of the most able elements available.
External pressure, especially extra-regional pressure (involving or based in ex-colonial states) hardly ever causes the widening of political space in a Third World country. In most Asian contexts it generates a backlash and de-legitimizes the cause it espouses, discrediting perhaps unfairly, the minorities and minority politicians as allies of hostile external forces. Even where the context is not one of ethnic polarization, patronage from adversarial external sources only de-legitimizes local actors.
If the Tiger Diaspora wants a separate state or a confederation, it had better seek it in one of the countries in which they are concentrated, because it is certainly not going to be achieved either on the island of Sri Lanka or the soil of India. If any elements in the West sympathize or support such a cause they had better grant it on their soil, because it ain’t gonna happen anywhere in South Asia. Overseas Tamil secessionism and its neo-imperialist patrons will find that Asia is a continent too far.
(These are the strictly personal views of the writer)
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