By Nihal Jayawickrama –
Dr. Nihal Jayawickrama
I am deeply honoured by the invitation of the Lanka-Japan Friendship Society to deliver the Deshamanya Dr P.R. Anthonisz Memorial Lecture this evening. I was intrigued by the subject that was assigned to me, since a surgeon’s approach to healing a patient is usually to cut and remove a part of his or her anatomy. I wondered whether I was expected to advocate the same approach to healing the nation. Coming, as I do, from a family of lawyers, with only one doctor of medicine produced in several generations, it was my brother who knew and worked with Dr Anthonisz over many years. He mentioned to me that Dr Anthonisz, when 90 years old, had arrived late for a meeting of the Diabetes Association to which he had been invited, and explained that the delay was because he had to remove a patient’s gall bladder. He had said that he proposed to break the world record held by a Russian surgeon by removing another gall bladder after he reaches the age of 92. I do not know whether he achieved that distinction. Dr Anthonisz was one of a small group of brilliant surgeons of the 20th century that included Dr Noel Bartholomeusz and Dr M.V.P. Peries. I have had the good fortune never to have been subjected to Dr Anthonisz’s scalpel, but I have had the privilege of meeting him socially, often in the home of Felix and Lakshmi Dias Bandaranaike, and also elsewhere, and he always treated me with the utmost kindness. To the memory of that remarkable surgeon, I dedicate my own thoughts on the subject I propose to address, with respect and affection.
‘Healing the Nation – A question of leadership’ immediately raises the question: what is expected of a political leader in a democratic society? Should the leader reflect the views, the fears and the prejudices of the electorate to which he has to return for re-election; or should he determine a path according to his own vision, his own values and his own judgment, and endeavour to lead his electorate along that path? President Jayewardene ruminated on this issue some years after he had left office, and wondered how long one could go along with the wishes of the electorate. A military leader or a dictator does not have to worry about that, but a democratic leader has to because the electors are his main and only support. He recognized that it was very difficult to win an election again unless the leader continued to enjoy the continued support of those who had placed him in that position. However, he was willing to make an exception in regard to economic matters where external factors often determined what could or could not be done, however much that might displease the electorate. Incidentally, he had some sound advice for those aspiring to be leaders. Politics, he said, was a “stayers race”; a race where a man or woman who does not try to kick his neighbour or jump over him, but stays on till all the others disappear, wins the race. Therefore, he advised aspirants for political leadership that good health was vital: “look after your kidney, nurse your heart, eat little, don’t exercise too much, and in the end you win the stayer’s race and you become the leader”.
Not being a politician, and not intending to be one at this stage of my life, I am free to disagree with President Jayewardene. I believe that a leader must possess a vision that he pursues with wisdom and integrity, and it is his responsibility to convince his electorate that he is on the right path. At the height of the American civil war, when things were not going well for the North, members of his political party advised Abraham Lincoln that he might need to compromise on slavery. Lincoln held firm on the issue of the abolition of slavery and turned away from that advice. More recently, Nelson Mandela’s decision to be magnanimous in victory must have enraged tens of thousands of black Africans who had been subjected to oppression and brutality at the hands of the previous white apartheid regime. Yet, both Lincoln and Mandela achieved peace in their respective countries, and the North was able to co-exist with the South in one, and the Blacks were able to begin to co-exist with the Whites in the other. That, in my view, was the result of leadership. President Obama’s success in re-establishing relations with Iran and Cuba, after over half a century of acrimony, and despite vehement opposition from Congress and Cuban immigrants, is another very recent example of leadership.
To establish the parameters for my presentation, I need to define the expression “healing the nation”. To heal is to mend, to reconcile, to rectify, or to restore. It presupposes that the nation is wounded, hurt or broken. In this context, “the nation” must mean Ceylon or Sri Lanka. However, about a hundred years ago, Anagarika Dharmapala began writing aggressively of the “Sinhala nation”, and in course of time “Sinhala” became the equivalent of “jathiya” or “Lankika”. In 1944, the Communist Party made the first reference to the “Tamil nation”, a term that was finally affirmed in the Vaddukoddai Resolution of 1976. In the contemporary world, this is not a matter for any real concern. For example, over several centuries “English” was considered to be synonymous with “British”, but today, the nation known as “Great Britain” comprises at least three nations: the English nation, the Scottish nation and the Welsh nation. Each has a distinct language, religion and a proud culture. Scotland and Wales have their own legislative assemblies and their own chief ministers, and are represented in Westminster in both the Parliament and the Cabinet. Together with Northern Ireland, these three nations constitute the United Kingdom. In fact, the former Prime Minister Gordon Brown was a Scot, representing a constituency in Scotland. Similarly, the nation of Sri Lanka includes the Sinhala nation and the Tamil nation and several other communities, and it is to the break-up of that nation that I now turn.
The Break-Up Of The Nation
When did the break-up of the Sri Lankan nation occur? I would submit that it was not a single event, but a series of events that led to the nation being wounded, hurt or broken. In the first quarter of the twentieth century, all the different ethnic communities stood together as Ceylonese in agitating for constitutional reform. In 1931, universal adult franchise was introduced, together with a State Council and a Board of Ministers. With impending self-government, it was natural that minority communities would become apprehensive of majority rule. There was cause for this. The Sinhala Maha Sabha, established by S.W.R.D. Bandaranaike in 1937, was already engaged in creating a national consciousness among the Sinhalese. The Kandyan National Association was agitating for a federal political structure in which the former Kandyan kingdom would be the component unit. Meanwhile, following the election of the second State Council in 1936, the Low-Country and the Up-Country Sinhalese members, together with the European members (whose support was secured through promises that were made but not honoured: they were promised two ministries, but that promise was not kept once the objective had been achieved) succeeded in electing a Board of Ministers that was exclusively Sinhalese – the so-called “Pan-Sinhalese Board”.
The 1946 Constitution
The fears of the minority communities were set at rest by the Soulbury Commission which recommended the inclusion in the constitution of a package of safeguards. These were:
a) Multi-member constituencies in those areas in which a substantial racial or religious minority lived.
b) Six nominated members of the House of Representatives to represent any inadequately represented interests.
c) The Senate, which would serve the minorities as an instrument for impeding precipitate legislation, as well as a forum for handling inflammatory issues in a cooler atmosphere.
d) An independent Public Service Commission which would guarantee strict impartiality in public appointments.
e) A prohibition on Parliament from enacting any law which seeks to make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions were not made liable, or to confer on persons of any community or religion any privilege or advantage which was not conferred on persons of other communities or religions: the future section 29.
The 1946 Constitution, containing as it did, these safeguards, was described by one commentator as having “entrenched in it all the protective provisions for minorities that the wit of man could devise.” The Privy Council later observed that these safeguards represented “the solemn balance of rights between the citizens of Sri Lanka, the fundamental conditions on which they accepted the Constitution; and these are therefore unalterable”. Earlier, in May 1944, the State Council had resolved that Sinhala and Tamil would be declared the official languages of Ceylon within a reasonable number of years.
The 1947 General Election and Independence
At the conclusion of the first general election of October 1947, D.S. Senanayake, the leader of the newly formed United National Party which secured 42 of the 95 seats, formed a 14-member Cabinet in which he included two independent Tamils elected from the northern province: C.Sittampalam, a former civil servant, from Mannar, and C.Suntheralingam, the professor mathematics, from Vavuniya, and one Muslim, T.B. Jayah, from Colombo. Suntheralingam had reportedly assisted Senanayake in 1936 to configure how to establish a Pan-Sinhalese Board of Ministers. Apparently his objective and that of Senanayake at that time was to demonstrate to the British Government that the Executive Committee system established under the Donoughmore Constitution afforded no protection to minority communities, and should therefore be replaced with cabinet government.
Was the formation of this multi-ethnic Cabinet an act of leadership on the part of D.S. Senanayake, designed to consolidate the multi-ethnic, multi-religious and multi-linguistic nation of Ceylon? Or, was it an act of political expediency which he considered necessary to convince the British Government that the fear that the minorities entertained of majority rule no longer existed, and that Ceylon was ready and equipped for independence? I am inclined to the view that Senanayake, during whose tenure our national flag was designed and adopted, and who steered clear of language and religious issues, truly desired to maintain the equilibrium of a multi-ethnic state. On Independence Day, 4 February 1948, Sir Oliver Goonetilleke, presenting an Address of Thanks on behalf of the Senate to the Duke of Gloucester who had opened the first Parliament of Independent Ceylon, exclaimed: “We are of many races – Europeans, Indians, Burghers, Malays, Moors, Tamils and Sinhalese. We are of different religions – Muslims, Christians, Hindus, Buddhists. We have majorities and minorities. We have, however, been in the past, and we shall be in the future, one nation”.
If I may digress for a moment, I was present and saw and heard Sir Oliver express that optimistic hope, although I may not have understood much of what he said. When I entered Royal College in January 1948, having been a wolf-cub at Royal Primary School, I was immediately inducted into the scout troop. That had its privileges. On 4th February of that year, I was among the scouts “on duty” at the specially constructed Assembly Hall, where the Independence Hall now stands, and where the Duke of Gloucester opened Parliament. On every Independence Day thereafter, whether at Independence Square or at Galle Face, where the Prime Minister, the Chief Justice and the Minister of Home Affairs were usually decked in top hat and tail coat, I was among those scouts “on duty”. At every Opening of Parliament, and also when Elizabeth II was proclaimed Queen of Ceylon, I stood on the steps of the parliament building in the blazing Galle Face sun, compensated only by the fact that on the other side of the steps were the girl guides. I was even “on duty” at the funeral of Mr. D.S. Senanayake. Like “Forrest Gump”, that Alabama native, portrayed by Tom Hanks in that riveting 1990’s comedy, who happened to witness some of the defining moment of the latter half of the 20th century, I too was there until I could no longer wear blue shorts and stockings, and had to graduate into longs. On that particular February day, I returned home and did two things. I made a replica of the Assembly Hall using cardboard strips and colourful chocolate paper as a substitute for the ralipallan. I also began maintaining scrap books in which I pasted the newspaper reports of that event, and thereafter of all the significant events in the country, including the regular Miss Ceylon contests.
To return to the new nation, the critical events that followed Independence were often determined by political expediency. This was in sharp contrast to the policies of Lee Kuan Yew who created one of Asia’s most peaceful and prosperous nations out of what he described as “a polyglot collection of migrants from China, India, Malaysia, Indonesia and several other parts of Asia”. In barely 30 years, Sri Lanka’s political leaders caused the disintegration of a nation which at Independence had the highest per capita income in Asia, one of the smallest military budgets, and one of the most extensive social welfare programmes. With a long familiarity with constitutionalism, experience of political and social organization and agitation, as well as of the conduct of government, a remarkably high standard of literacy, a vibrant middle class, a national press, and a spiritual commitment to the dignity and worth of the human person, the new independent nation of Ceylon had solid foundations of freedom, perhaps more than any other British colony.
Citizenship and Franchise
The new nation’s first target were 211, 915 registered Indian Tamil voters. As British subjects who had been continuously resident in Ceylon for at least five years, they were eligible to vote. At the 1947 general election, apart from electing seven candidates of the Ceylon Indian Congress, they had helped to secure the victory of 15 1eft-wing opposition candidates as well. It became a matter of priority for the Government to disenfranchise the Indian Tamil population. In this venture, the Government also had the tacit support of the leader of the Ceylon Tamil Congress, G.G. Ponnambalam. Accordingly, Parliament enacted a package of laws which had a profoundly debilitating effect on that community. The Citizenship Act 1948, the Indian and Pakistani Residents (Citizenship) Act 1949, and the Ceylon Parliamentary Elections (Amendment) Act 1949 ensured that by the time of the next general election of 1952, the number of Indian Tamil voters in the seven plantation area constituencies was reduced from 162,212 to a mere 3191, thereby making it impossible for that community to secure even a single seat in the legislature. The first piece of legislation established the principle of citizenship by descent, and not by birth, by requiring proof of birth in Ceylon of one’s father, or paternal grandfather and great-grandfather. It thereby deprived the plantation Tamils, 12 per cent or an eighth of the country’s population, of their citizenship. The second made it virtually impossible for them to obtain citizenship by registration since it required proof of uninterrupted residence in Ceylon in the previous 13 years. The third deprived those who were not citizens of their right to vote.
Did the Citizenship Act discriminate against the Indian Tamil community? In my view it did. However, when section 29 of the Constitution was invoked, both the Supreme Court and the Privy Council retreated. In what bore the stamp of a classic political judgment, they upheld the action of Parliament on the ground that it was “a perfectly natural and legitimate function of the legislature to determine the composition of its nationals.” While that may well be so, both these courts overlooked the fact that our Constitution provided that in performing that function, Parliament must not discriminate against a particular community already resident in the country. A million people were thereby rendered stateless.
The problems created by the presence of the Indian Tamils were sensitive and emotional. Even almost 30 years later, Hector Kobbekaduwa would exclaim, with reference to the 1947 general election:
With universal franchise, the constitution makers thought that the inarticulate peasantry should have their own representatives. But unfortunately in the hill country, the change was from clay to fire. The Peri Sunderams, the Vythialingams, Natesa Iyers and Fellows-Gordons, and later the Thondamans and Jesudasans and other political adventurers, were swept into power in our areas through the Indian votes. It was a hopeless situation for us. We screamed for justice.
Marginalizing the Tamil community
The substantial disintegration of the nation, however, occurred with a series of politically expedient measures taken by successive governments which were directed at, or had the effect of, marginalizing the Tamil community. These were political decisions that were thought to appeal to the majority of the Sinhalese electorate who believed, as the Mahawamsa claims, that the passing away of the Buddha synchronized with the founding of the Sinhala race; that Sri Lanka was a “Dhamma-dweepa”, a nation brought into being for the specific purpose of keeping alive the message of the Buddha; and had for centuries harboured a historical, yet often dormant, grievance against the Tamils for having settled in a part of this “Dhamma-dweepa”.
One of the earliest of such measures were the government initiated and funded colonization schemes, which at the time appeared to be both timely and desirable. However, they resulted in Sinhalese families from the south being settled in the sparsely populated dry zone in the eastern, north-central and northern provinces. This was viewed by the Tamil community as a diabolical attempt to dilute the Tamil presence and seriously alter the ethnic composition in those provinces. It was argued by Tamil politicians that the government should have first invited the people of the provinces where lands were being distributed to come forward as recipients. Thereafter, people from the other areas would have had their share if there was sufficient land to distribute. This policy, which appeared to have a secondary objective of altering the demographical pattern that existed at the time of Independence, was to lead to violent ethnic conflicts in the colonized areas in later years.
The division of the Sinhalese from the Tamils, commencing at a very young age, began with the implementation of the policy to replace English with Sinhala and Tamil as the medium of instruction in schools. I was fortunate to have entered the primary school before this policy was introduced, and to have had the opportunity to go through school life in the company of fellow students from all the communities and to understand and appreciate their cultures, their strengths, their weaknesses, and their idiosyncrasies. To segregate children from a very young age on the basis of their language was to ensure a permanent division between the two communities through life, with little or no opportunity to interact and understand each other.
That division was compounded when the SLFP and the UNP changed their language policies to that of Sinhala Only as the official language, repudiating one important element of the 1946 constitutional settlement on the basis of which the minorities had agreed to subject themselves to majority rule. For generations, the government clerical service had been a popular outlet for the educated Tamil youth who did not aspire to a university education, but sought a habitation and a source of income away from the arid soil of his northern home. He or she was now required to qualify in Sinhala in order to enter, and thereafter to progress in, the public service. Between 1977 and 1981, Tamils secured only 4.9 per cent of the vacancies in the government clerical service as against 93.6 per cent for the Sinhalese. The plight they now faced became evident from the case of Kodeeswaran, a Tamil who had been appointed to the General Clerical Service in 1952. He had successfully moved up the salary scale from Rs.1600 to Rs.3780 per annum by regularly passing proficiency tests in Tamil. In 1962, he was denied his increment because he did not present himself for the proficiency test which was now conducted in Sinhala. Many hundreds of Tamil public servants almost certainly found themselves in the same predicament as Kodeeswaran.
Kodeeswaran challenged the Official Language Act in the District Court of Colombo. Mr O.L.de Kretser, District Judge, in a carefully considered judgment observed that:
If the members of each community were able to speak, read and write the language of each of the other communities, then it is obvious that the selection of the language of one community as the Official Language could not cause any handicap to the members of the communities whose language was not chosen, however much they resented the fact that their own language was not given pride of place. But every community in Ceylon in not literate in the language of the other communities, and the selection of the language of one community must cause at least inconvenience, if not disability, to the communities who are not literate in that language.
He concluded that the purpose of an Act must be found in its natural operation and effect. While it was a legitimate function for Parliament to decide in what language official business should be carried on, and in making that decision the language spoken by the largest number of people would ordinarily be the choice, the Act nevertheless gave advantage to one community which the other did not have. Accordingly, he held the Official Language Act to be an infringement of section 29 of the Constitution, and therefore void.
Once more, the Supreme Court retreated. Chief Justice H.N.G. Fernando avoided the substantive issue and held instead that a public servant in Ceylon had no right to sue the Crown for the recovery of his wages. On appeal to the Privy Council, the Chief Justice’s judgment was declared to be wrong, and the case was returned to the Supreme Court to address the substantive issue. For some inexplicable reason, the appeal was not listed for hearing until the Official Language Act was incorporated in the 1972 Constitution. Kodeeswaran was compensated by the new Republic, whereupon he discontinued his litigation against the state.
The 1972 Constitution marked the crucial decisive stage in the disintegration of the nation. The 1946 constitutional settlement was unilaterally abrogated. The Senate, the nominated members in the House of Representatives, the Public Service Commission, and the section 29 prohibition of discriminatory legislation were all omitted in the new Constitution, along with the judicial review of legislation. Sinhala was granted constitutional status, and Tamil was described as the language of translation. The tragedy of the 1972 Constitution was that it heard and responded only to the voices of those who celebrated its creation. The issue of federalism was not even allowed to be raised. The Federal Party withdrew from the Constituent Assembly because they believed that they were unable to influence in any effective manner the course of its proceedings. In fact, federalism itself had now ceased to be an expression in vogue in the political terminology of the Northern Province. Indeed, by postulating a separate Tamil nationalism and by assiduously developing it, the federal Party had raised Tamil aspirations to a level that was beyond its reach and no longer capable of being fulfilled through regional autonomy within a federal union of Sri Lanka.
The most untimely introduction in 1970 of a policy of standardization in respect of university admission was perhaps the final straw. It was introduced in the hope that it would thereby secure a more equitable distribution, language and district-wise, of the limited number of places available in universities. It resulted in a large number of Tamil students being denied admission to the universities. The effect of this policy, and the enormity of the injustice it caused to the Tamil community, raised this issue to the level of a major human rights problem. For instance, in 1975, the admissions on a district basis into the medical faculty were 29 from Galle and 29 from Jaffna, whereas on the basis of merit only 18 had qualified from Galle as against 61 from Jaffna. Similarly, on a district basis, Galle and Jaffna each secured 20 places in the science and engineering faculties, while on the basis of merit, 24 should have entered from Galle and 56 from Jaffna. Nothing could have been more frustrating to the educated Tamil youth than his inability to enter the stream of higher education owing to standardization, and be diverted away from the mainstream of life in the country. This feeling of despair and non-fulfilment contributed immensely to the emergence of a militant youth movement. The drift to separation was now both rapid and intense, and accompanied by increasing violence. On 27 July 1975, masked gunmen shot and killed 48-year old Alfred Duraiyappah, the SLFT Mayor of Jaffna.
The Vaddukkodai Declaration
One year later, at Vaddukkodai, on 14th May 1976, the Tamil United Front, together with the Muslim United Front, declared that:
The Tamils of Ceylon, by virtue of their great language, their religion, their separate culture and heritage, their history of independent existence as a separate state over a distinct territory for several centuries until they were conquered by the armed might of the European invaders, and above all, by their will to exist as a separate entity ruling themselves in their own territory, are a nation distinct and apart from the Sinhalese.
It was indeed ironic that Dr Colvin R. de Silva, the architect of the Constitution that abrogated the 1947 constitutional settlement, should have actually anticipated that this would happen. Addressing Parliament twenty years earlier this is what he predicted:
Do we, does this House, do our people want two nations? Do we want a single State or do we want two? Do we want one Ceylon or do we want two? And above all, do we want an independent Ceylon which must necessarily be a united and single Ceylon, or two bleeding halves of Ceylon which can be gobbled up by every ravaging imperialist monster that may happen to range the Indian Ocean? If we come to the stage where, instead of parity, we, through needless insularity, get into the position of suppressing the Tamil people from the federal demand which seems to be popular amongst them at present – if we are to judge by electoral results – there may emerge separatism.
Healing The Nation
If the health of the nation has been seriously compromised, it is principally due to the failure of its political leadership, all of whom represent, or have represented predominantly Sinhalese electorates. For them, the constituency is essentially Sinhalese in race, Buddhist in religion, and Mahawamsa in mindset. Under pressure from the Tamil political leadership, or faced with the threat of satyagraha or civil disobedience campaigns, or occasionally when driven to seek the support of the Tamil members of parliament in order to form an administration, successive Sinhalese political parties have entered into formal or informal agreements with representatives of the Tamil people. These were rarely honoured. The responses were determined purely by political expediency.
For example, in 1957, S.W.R.D. Bandaranaike signed a pact with the Tamil political leadership under which he promised to establish Regional Council and provide for the use of Tamil in the northern and eastern provinces. Nine months later, under pressure from the Eksath Bhikku Peramuna and from the UNP led by J.R. Jayewardene which organized a 72-mile march from Colombo to the Temple of the Tooth “to save the Sinhala race”, he announced that the pact which bore his signature as Prime Minister was incapable of being implemented. In fact, a UNP publication revealed the move behind the march, which was the need for “a demonstration that would seize the imagination of the people on a national scale”. In 1958, Mr Bandaranaike enacted the Tamil Language (Special Provisions) Act, but failed in his lifetime to make the regulations which would have made that law operative. When in 1966, Dudley Senanayake attempted to make these regulations, Opposition parties led by Mrs Bandaranaike demonstrated against that move on Vihahamahadevi Park and on the streets of Colombo, and took an oath at the statue of Vihara Maha Devi to oppose the division of the country. Dudley Senanayake, fortified by a state of emergency, proceeded to make the regulations, but did not implement them in the remaining four years of his government. In 1965, Dudley Senenayake signed an agreement with Chelvanayakam in which he promised to establish District Councils. A Bill for this purpose was prepared, but was never introduced in Parliament. Meanwhile, a White Paper on the subject, promising less than what Mr Bandaranaike had offered in 1957, was publicly and ceremonially burnt on the steps of parliament building by members of the SLFP and other Opposition parties.
In 1970, Mrs Bandaranaike invited the Federal Party members to the Constituent Assembly to help draft a new constitution which would “serve to build a nation ever more strongly consciousness of its oneness amidst the diversity imposed upon it by history”. When they responded positively and suggested that that goal be reached through federalism, they were ruled out of order and left with no alternative but to withdraw from the exercise. In 1977, the UNP manifesto promised to summon an All-Party Conference to consider the problems of non-Sinhala speaking people, but conveniently forgot that promise once the general election was won, and it took several years of terrorist activity and military reprisals, hundreds of deaths, the burning of the Jaffna public library, and the events of July 1983, to convince the government that hat promise ought to be kept. When that All-Party Conference eventually met (but without the SLFP leader on whom civil disabilities had been imposed and expelled from parliament), the much maligned Annexure C, which the Tamil political leadership claimed contained the agenda they had been invited to discuss, continued to lie on the table in the manner of an illegitimate child abandoned by its mother. Meanwhile, the Sixth Amendment to the Constitution, which required all members of parliament to take a loyalty oath to an indivisible Sri Lanka, which the TULF refused to do, resulted in the moderate political wing of the Tamil community losing their political influence and becoming irrelevant in any negotiations. That, in brief and in outline, is a case study of the failure of political leadership.
Transitional justice
The problem of healing the nation today is two-fold. On the one hand, there is the issue of governance which our political leaders have failed to resolve for nearly sixty years. On the other hand, there is the issue of justice, reparation and reconciliation, which has been brought to the fore through the actions of a succession of Presidents who set out to resolve a political and human rights problem, conveniently dubbed “the terrorist problem”, through the application of military firepower. It was President Jayewardene who, in October 1979, directed the Army Commander to proceed to the north with absolute authority to eliminate by any means whatsoever all forms of terrorism he may encounter; the final solution was to be achieved by Christmas of that year. For decades thereafter, a daily sacrificial offering was made of thousands of idealistic young Sinhalese men in the prime of their lives who journeyed to the north and the east in the confident hope that before they laid down their own lives, they would be able to kill a few equally idealistic young Tamil men and women, and thereby make this thrice blessed isle a safer, happier and more righteous place for all of us to live in.
In this regard, it is necessary to remind ourselves that, in the words of the poet John Donne,
‘No man is an island, entire of itself;
Every man is piece of the continent, a part of the main’.
How a nation treats its nationals is no longer a matter exclusively within its own concern. There are now norms and standards which form part of a growing body of international law. Therefore, a government’s behaviour towards its own nationals is now regulated by international treaties. In 1981, the Government of Sri Lanka voluntarily declared to the international community that, in the matter of the treatment of its nationals, it would honour, respect and abide by these norms and standards. In other words, the Government of Sri Lanka brought itself within the jurisdiction of international human rights law when it subscribed to, and ratified, the two international human rights covenants. It is in accordance with its international obligations that the Government has accepted the report of the Human Rights Council containing the findings of the investigation on Sri Lanka conducted by three distinguished legal experts, the former President of Finland, the former Governor-General of New Zealand and the former President of the Human Rights Commission of Pakistan. That commission has gathered information of unlawful killings of civilians by security forces and paramilitary groups; extrajudicial execution of identified LTTE cadres and unidentified individuals at the very end of the fighting, including those who were known to have surrendered to the Sri Lankan military; arbitrary arrests and abductions; enforced disappearances; torture and other forms of cruel, inhuman and degrading treatment; sexual and gender-based violence; forced recruitment of children for use in hostilities; denial of humanitarian assistance; and the deprivation of liberty of internally displaced persons.
The government has announced its intention to establish a Truth Commission, which is a healing process that offers victims and perpetrators an opportunity to outline details of past crimes. It is a mechanism that has been attempted, with some degree of success, in South Africa and in several Latin American countries such as Argentina, Chile, El Salvador and Guatemala. I once witnessed the proceedings of a truth commission in Nigeria. It is based on the Christian concept of confession. Whether it would be appropriate for Sri Lanka is an open question. The government is reportedly taking steps to provide restitution, compensation and rehabilitation. However, a pre-condition for reconciliation is accountability. Without accountability, there can be no reconciliation in any society. The hybrid court, which the UN High Commissioner for Human Rights recommended for Sri Lanka, is a unique element in the human rights based approach to transitional justice in a post-conflict situation. Comprising international judges, prosecutors, lawyers and investigators, a hybrid court is designed to deal with those who bear the greatest responsibility for serious crimes arising from or during the conflict, such as war crimes or crimes against humanity, including sexual crimes and crimes against children. President Sirisena has repeatedly asserted that, under no circumstances, will he agree to the participation of foreigners in the accountability process in Sri Lanka. He has claimed that Sri Lanka has an independent judiciary which is quite capable of addressing the issues of accountability without any foreign assistance. It is perhaps time that his advisers briefed him on the real position.
In many significant respects, the Sri Lankan legal and judicial system has, in the past few decades, failed its multi-ethnic and multi-religious population, and has demonstrated that it lacks the will and the capacity to address such serious crimes. War Crimes and Crimes against Humanity, as well as Enforced Disappearances, have not been criminalized in Sri Lanka. Neither the International Covenant on Civil and Political Rights (which the Jayewardene Government acceded to) and its Optional Protocol (which the Kumaratunge Government ratified), nor the International Covenant on Economic, Social and Cultural Rights, have yet been incorporated in our law. No effective mechanism has yet been established for the protection of witnesses and victims of crime. In 2006, Chief Justice Sarath Silva suspended the application to Sri Lanka of international human rights treaties, holding that their ratification was an infringement of the Constitution. His judgment was described by a world renowned jurist as “an example of judicial waywardness” or “judicial eccentricity”. Another referred to it as “Alice in Wonderland reasoning”. Therefore, we lack the legal framework within which accountability can be established for such crimes. The process of remedying that deficiency may benefit from expertise, whether international or otherwise.
Sri Lanka is believed to have one of the highest rates of reported cases of enforced disappearances in the world, and yet no tangible steps have been taken for several years even in respect of the much publicised Ekneligoda disappearance. Over 300 political killings in 2005, and over 700 extra-judicial executions in the next two years have been recorded, with no action being taken to investigate them. The high profile killings of Lakshman Kadirgamar in August 2005 in circumstances that are still classified and shrouded in mystery; of Joseph Pararajasingham at a Christmas Eve church service in Batticaloa in 2005; of five Tamil university students in Trincomalee in January 2006; of 17 ACF workers in Mutur in August 2006; and of Lasantha Wickrematunge within a high security zone in January 2009; have all remained uninvestigated or not effectively investigated. Some military personnel have been charged with the killing of Nadarajah Raviraja in Colombo in November 2006, but has it been ascertained why they committed that crime. The Rajapakse Government clearly demonstrated that it lacked the will or the desire to hold persons who have perpetrated such serious crimes accountable for their actions. Even if the present Government wishes to reverse this culture of impunity, does it have at its disposal the expertise to successfully investigate several thousand cases of enforced disappearance and extra-judicial execution ?
It is a notorious fact that one of the sources through which the LTTE secured the recruitment of children into its cadre was the group led by Karuna Amman. These children, who were under the age of 15, were used to participate actively in hostilities. That was a war crime as well as a violation of the Convention on the Rights of the Child which Sri Lanka has ratified. The UN claims that there are reasonable grounds to believe that, even after Karuna Amman defected to the government in 2007, the government security forces were aware that the recruitment of children continued in areas under their control. While the Rajapakse Government elevated Karuna Amman and his deputy Pillayan to ministerial rank, the present government too has ignored the fact that the recruitment of children and their use in hostilities was criminalized as far back as 2006.
The Attorney-General’s Department, which remained embedded in the Presidential Secretariat from 2011 to 2015, did not possess the capacity or the inclination to view, with independence and impartiality, the crimes allegedly committed with the knowledge or connivance of those at the highest levels of the then government. Instead, its senior officers travelled annually to Geneva to deny before the international community that any such crimes had ever been committed. An Attorney General himself uttered what was later proved to be a lie in regard to a disappeared journalist. Is it being seriously suggested that these same officers should now be entrusted with the task of presenting the evidence which the OHCHR claims it has, and which they have so strenuously repudiated for decades ? The apparent indifference with which investigations that commenced after the change of government are being handled by those in the commanding heights of that department suggests that the culture in that department remains the same.
Sri Lanka’s inability to conduct credible investigations through quasi-judicial bodies has also been demonstrated by the performance of a succession of commissions of inquiry headed by retired judicial officers. The Udalagama Commission lost its credibility very early in its proceedings. The Paranagama Commission keeps rolling along, from month to month, year to year, signifying the urgency it attaches to Enforced Disappearances. The performance of the previous Human Rights Commission, which had the duty to investigate infringements of fundamental rights, was so abysmal that the United Nations downgraded its status for lack of balance and objectivity.
President Sirisens as well as several ministers of the present government have declared that, following the appointment of a new Chief Justice, “our judiciary is now independent”. This simplistic assertion appears not to recognize that the judicial culture of the Supreme Court, especially evident in the past decade, has been one of extreme deference to the presidential executive. Whenever fundamental rights were invoked, the court, composed as it was of judges appointed by President Rajapaksa, often from among his contemporaries at Law College, would, more often than not, capitulate to executive assertions of state security. Political opponents of the previous government and members of ethnic minorities, and indeed civil society, have rarely, if ever, obtained any relief. The judgments of the Supreme Court, especially in matters affecting individual rights, reveal an astounding ignorance or unfamiliarity with contemporary developments in the law in other jurisdictions. The failure of the present government to resort to a “vetting” process, which was successfully applied under the Constitution of Kenya, will only strengthen the belief among the international community that our judiciary lacks the competence or the integrity to address war crimes and crimes against humanity
The question which the government will need to address is whether it has, with the resources available to it, the capacity to effectively investigate, prosecute and try the serious allegations referred to in the report of the OHCHR investigation on Sri Lanka, including war crimes and crimes against humanity. To admit that we cannot undertake these tasks alone is not an admission of weakness. On the contrary, it will be a sincere and genuine commitment to achieving the objective of accountability on behalf of those who laid down their lives and the families who continue to live in grief. In respect of war crimes and crimes against humanity, the expertise of lawyers skilled in dealing with such crimes, military analysts, crime scene investigators, trauma experts, psychological counsellors, and a host of others who are competent to address issues of victim needs and rights, witness preparation and protection, are essential, and international assistance in that regard ought to be welcomed.
Power sharing at the centre
One inescapable fact that emerges from the post-Independence history of Sri Lanka is that the Sinhalese political leadership is unwilling to share political power with the Tamil political leadership. For the past fifty years, since the emergence of the Federal Party, negotiations between Sinhalese and Tamil political leaders have focused on the unit of devolution. Should it be district, provincial or regional? Fear has been created in Sinhalese minds that any such form of devolution would eventually lead to a separate state. In this connection, I wish to refer to two principles of international human rights law which now regulate the relationship between the government and the different ethnic groups living in Sri Lanka. These are the principles of non-discrimination and self-determination. The principle of non-discrimination means that as between the citizens of Sri Lanka, neither law nor executive action may discriminate on the basis of race, religion, language, sex, political or other opinion, national or social origin, birth or other status.
The principle of self-determination is contained in both human rights covenants to which the Government of Sri Lanka has committed itself. It means that cohesive ethnic groups have the right to choose for themselves a form of political organization, and through such organization to freely pursue their economic, social and cultural development. That choice may take one of several forms. It could be independence as a separate state; or association with other ethnic groups in a federal state; or autonomy or assimilation in a unitary state. However, if the ethnic group concerned already has a home within territorial boundaries of a sovereign and independent state, as the Tamil community has; and if that state has a government which is representative of all the people irrespective of race, which the Sri Lankan government is not; and if that government respects the twin principles of non-discrimination and self-determination, which the Sri Lankan has not; the choice of that ethic group does not extend to the creation of a separate state.
Therefore, it seems to me that, whatever agreement may be reached in regard to governance at the periphery, it is vital and fundamental that there should be power-sharing at the centre. This is not a matter that should be left for negotiation at the conclusion of a general election. That has led in the past to the inclusion of Colombo-based token Tamils in the Cabinet, such as C. Kumarasuriar and Lakshman Kadirgamar, who represented none but themselves. Power sharing at the centre is a requirement that should be incorporated in the Constitution. Whichever political party forms the government, it should be mandatory for the different ethnic groups to be represented in the Cabinet, at least in proportion to the number of such members elected to Parliament. Thereby, the minority communities will be constitutionally guaranteed not of token but of genuine representation, both in the legislature and in the government. Policy formation will thereafter be by consensus of the different ethnic groups, which is how it should be in a multi-ethnic, multi-religious and multi-linguistic country as Sri Lanka.
Entering the global community
After almost sixty years of isolationist policies, it is time that we entered the global community. We cannot do that if we are unable to communicate with others outside our island home. Lee Kuan Yew had the foresight to retain the use of the English language in Singapore, as did many of Africa’s national leaders. At a meeting in Thailand last year, the Thai Foreign Secretary informed me that his country had begun using English as the medium of instruction in schools. When I expressed some surprise, he explained that Thailand did not want to send its citizens out as menial workers. By retaining, or adopting, English – now the acknowledged international language, these countries have ensured that their peoples can communicate with the world beyond their geographical boundaries, and acquire the new knowledge that now emerges as rapidly as the old is debunked, and equip themselves to serve the global community in capacities other than as domestic helpers and semi-skilled workers. I think it would be a reality check for our politicians if they were to ask the youth of this country which language they wish to be educated in.
It is time that the use of the language which the Constitution describes as “the link language” is strengthened, perhaps with assistance from other Commonwealth countries. Language is not only a mode of communication; it is also the medium through which knowledge is acquired. It is unfortunate, but true, that Sinhala does not serve either purpose adequately. If our citizens are provided the facilities to equip themselves in the English language, they will soon learn that Sri Lanka has ratified numerous human rights treaties intended for their protection, but have not implemented them. They will learn that the United Nations adopted the Bangalore Principles of Judicial Conduct in 2006, and requested the Government of Sri Lanka to invite the Sri Lankan judiciary to formulate its own code to regulate the conduct of its own judges based on the UN document, but that that has not been done. They will learn that the Government of Sri Lanka was one of the first countries to ratify the UN Convention Against Corruption, but that many of its crucial provisions have yet to be implemented in this country, and that meanwhile corruption rages at all levels of the public and private sectors.
Conclusion
I do not wish to conclude my presentation by leaving the impression that Sri Lanka has been devoid of any manifestation of leadership. Of course, not. In the 1920s, A.E. Goonesinghe provided the leadership for the working people to organize themselves, and for the youth to agitate for the immediate relief of social problems. In the 1930s, a group of young Ceylonese intellectuals on their return from universities abroad, influenced deeply by the ideas of Karl Marx – Dr S.A. Wickremasinghe, Dr N.M. Perera, Dr Colvin R de Silva, Leslie Goonewardene and Philip Gunewardene – provided the leadership to the formation of the left movement in Ceylon. In the 1940s, D.S. Senanayake and Sir Oliver Goonetilleke provided the leadership to the negotiations with the British Government that secured self-government for Ceylon without shedding a single drop of blood. On the long night of 27th January 1962, Felix Dias Bandaranaike, almost singlehandedly, saved not only a great many lives, but also the social and political fabric of our society by aborting the first ever attempt to overthrow the lawfully established government of this country. In April 1971, barely two weeks into the JVP insurgency, with the military ready to launch an offensive, Mrs Bandaranaike called upon combatants to surrender at check points manned by public servants, guaranteeing them safe conduct, an appeal to which nearly 10,000 young persons responded. In 1978, J.R. Jayewardene gave a whole new direction to our economy, lifting it out of the shackles of outmoded socialism. In 2002, Ranil Wickremasinghe had the courage and the vision to enter into a ceasefire agreement with the LTTE to bring an end to the hostilities as a means to establishing a positive atmosphere in which steps towards negotiations on a lasting solution could be taken. These were all examples of leadership.
In conclusion, may I adopt and adapt the words of the present Chief Justice of Kenya in reminding ourselves that we must fully discharge our obligations to each other as individuals who are part of a common polity.
These obligations start from the basic requirements: respect for each other as individuals, as well as respect for communities and other identity groups. It is socially obnoxious, politically reckless, and economically ignorant to cheapen the presence of any community in this country. It is only the weak-minded people incapable of comprehending the origins of the modern state, its philosophy, its instruments, and its edicts, that resort to such approaches in managing the expression of disagreement. Just as a fish that grows in a pond may consider itself the king of the sea until it is introduced into the ocean, we too must also awaken to the reality that our ethnic and sectarian interests may only matter if we are disconnected from the rest of the world. Unless we all recognize that we are a confederation of cultures, languages and interests, we shall never be able to cultivate the sensitivity and respect for one another that is necessary to hold us together. We might never live up to true greatness as a member of the community of nations because we overstayed our welcome in the pond when the ocean beckoned. The things that are seen to divide us – ethnicity, religion, race, class, clan, region, occupation, sexual identity, generation, disability – are also the raw materials needed to create the mosaic of one nation.
*Deshamanya Dr P.R. Anthonisz Memorial Oration -Lanka – Japan Friendship Society, Sasakawa Hall Auditorium, Colombo 3, Wednesday 11th May 2016.