Keeping devolution alive

From Himal Southasian, Volume 22, Number 4 (APR 2009)

By Laxmi Murthy & Kanak Mani Dixit

Even with the end of the LTTE as a pseudo state power, it is clear that without power-sharing and the recognition of the rights of all communities, the authoritarian regime of Mahinda Rajapakse will only further alienate Sri Lanka’s minorities.

Amidst the battle cries and the thunder of shelling in the Vanni, there is currently little space to ask: What next? Few in Sri Lanka, Southasia or the rest of the international community are willing to acknowledge that the current situation is a direct outcome of the centralisation of powers, and the refusal over the decades by the Colombo state establishment to concede even basic rights to the country’s minorities. Meanwhile, the competing and polarised Sinhalese and Tamil nationalisms, with their hyped-up rhetoric, have pulled the people apart, as the extremism of the LTTE muzzled the Tamil voice and the Sinhalese politicians succumbed to ultra-nationalist populism. The two nationalisms allowed no room for the other minorities to voice their grievances, or for the progressive among the Sinhalese to assert their notion of the state.

As the ground war comes to a close in the north, it is essential to list the requirements of a functioning and lasting democracy in Sri Lanka. They include, right at the top, devolution of powers, minority rights that refer to all communities, independent media and judiciary, the principled implementation of a multiparty polity, and checks and balances on the powers of the head of the central government. Many of these principles have been compromised on the altar of ‘national security’, and must be reinstated if Sri Lanka is to resume its journey to the future as an inclusive democracy. To bring these values to the forefront, it will be important to challenge the wartime rhetoric in Colombo, which seeks to silence the media and civil society with accusations of anti-national treachery.

Even while the body bags continue to pile up and the army’s casualties are kept secret lest the morale flag, amidst the demagoguery of the ruling party and the silence of the opposition, the devolution proposal cannot be allowed to lapse. The retreat of the Tigers, as we have known them till now, does not presage an eclipse of the ‘Tamil problem’. The LTTE, despite its ‘sole representative’ claim, never did represent all the aspirations of the Tamil people of Sri Lanka. At the same time, renewed focus on the Sri Lankan Tamil marginalisation must be concomitant with focus on the other, smaller minorities. Multiculturalism must remain the leitmotif even under a devolved federal structure; otherwise, the fractured nation will not be able to mend its soul.

The humanitarian dimension
While defining the political future suddenly gains urgency, the humanitarian crisis that plays out as this is written requires urgent response. With the control of the LTTE having shrunk from an original 15,000 sq km to about 58 sq km, now solely in the Vanni tract in the north, civilians are huddled in a 14 sq km ‘no-fire’ zone. The UN estimates this beleaguered population to number between 150,000 and 180,000, while the UN human-rights office reports that 2800 civilians may have been killed and 7000 others injured in the north – many in the no-fire zone – since the fighting intensified in late January; as many as a hundred children have been killed and over a thousand injured. The state of civilians behind the Tigers lines is one of extreme distress as supplies run low, basic amenities are lacking, and gunfire and shelling rain down. The inability of humanitarian agencies and the media to gain independent access to the area means that the world has no real sense of the horrors being perpetrated by the warring sides. In a future day of reckoning, the LTTE leadership will have to answer charges of holding the population hostage, while the Sri Lankan military will have to prove due diligence in avoiding civilian casualties during its offensive.

The LTTE’s use of civilians as a human shield is an act of depravity, with the fact that it does not allow safe passage to the entrapped population proving this allegation. Meanwhile, it is clear that the relief camps of those who have managed to come away must be brought under the oversight of the international agencies. This is important, to provide basic amenities and medical supplies, as well as to provide a sense of security to the traumatised population. The Sinhalese political class must be challenged to allow the international community access in order to provide succour. Besides immediate relief, there is the longer-term task of reuniting families torn apart, and the rehabilitation of a devastated society.

Humanitarian assistance is also a challenge, given the unfair suspicion that rests on the civilians trapped in the Vanni. While conducting operations, the military must resist the temptation to see all civilians on their path as LTTE supporters, for it is common knowledge that the Tigers coerced the population into ‘voluntary’ service, including forcible recruitments if not outright abduction under its ‘one person per family’ rule. It is this suspicion that makes the authorities run the displaced-person shelters as detention camps. There is a suggestion that the camps will be maintained for three years, with the population captive until the next presidential election, to serve as a ready-made vote bank. Meanwhile, there is rapid radicalisation among the displaced population, with groups like the EPDP and PLOTE jockeying for power in preparation for the provincial council to be established in the north after the war. As soon as the fighting stops and the region is secure, priority will have to be placed on reconstruction and rehabilitation with international support, which should start with the return of the camp residents to their homes and villages.

The humanitarian response cannot be allowed to be affected by a willingness to wait till the end of hostilities, for this will result in deepening human suffering. As far as India is concerned, the upcoming elections to the Parliament has meant that the Indian Tamil politicians, who wield considerable clout at the Centre, have forced New Delhi to sanction two convoys of humanitarian assistance. New Delhi has also gone to the unprecedented extent of asking the International Committee of the Red Cross (ICRC) to make this delivery, rather than the Colombo government. The Southasian and larger international reaction to the Sri Lankan military’s offensive seems to have been influenced by the post-9/11 atmosphere, where the willingness to see the end of the LTTE as a force utilising terror has dampened the humanitarian instinct. With all the actors influenced by the ‘war on terror’ rhetoric, and having also renamed the conflict in these terms, there is more tolerance for impunity and less questioning of human-rights abuses. For now, this hits the displaced and the trapped alike in the north; but in the long run, this attitude is also bound to affect Sri Lankan polity.

Wartime authoritarianism
In the fog of war, it is hard to make out the political way ahead. One thing however, is clear: the issue of federalism and genuine devolution of powers cannot be allowed to lapse. Even though it must be recognised that after the rise and consolidation of the LTTE there has been no anti-Tamil carnage akin to the horrors of 1983, it is equally true that this militant, undemocratic entity managed to hijack Tamil leadership in toto. However, the demand for recognition of identity and for power-sharing remains relevant and legitimate. The original cause of discontent remains valid, and Sinhalese civil society and media should seek to prevent the tsunami of southern chauvinism from sidelining the Tamil challenge to the unitary Sri Lankan state.

Unfortunately, there is a rapid polarisation occurring in Sri Lanka, with Sinhalese chauvinism on the one side and the sullen and silenced Tamil intelligentsia on the other. The Sinhalese intelligentsia and civil society too are enveloped in a cocoon of self-censorship, as war-mongering propaganda seeks to paint all naysayers as traitors. Let the war end, is the automated response that greets those who believe that now is the time to revive the discussion on devolution. After all, goes the refrain, why should the shape of the future be debated even while the fighting rages?

The media too is polarised, with the Tamil and Sinhala media occupying rigid nationalist slots, and the English media largely toeing the wartime rhetoric supportive of the Rajapakse regime. As the dominant force, the Sinhala and English media have largely willingly succumbed to the ‘complicity of silence’ – for example, by not reporting the casualties suffered by the army. Such coverage may or may not have lit the powder keg of suppressed discontent in the south, but the tight lips on the matter go beyond what is acceptable.

Secretary of Defence Gotabhaya Rajapakse and Lieutenant-General Sarath Fonseka, the commander of the Sri Lankan Army, are running the war, while President Rajapakse and his brother Basil run the administration. Together, the four gentlemen have succeeded in eroding the institutions of democracy – the media, political parties and, increasingly, the judiciary. The retirement of Chief Justice Sarath Silva in June 2009 is being seen as the fall of the last bastion, after which President Rajapakse would have untrammelled command over the polity. The murder of editor Lasantha Wickrematunga and the proceedings against senior Tamil journalist J S Tissainayagam on treason charges are pointers to the challenge faced by the press, beyond the self-censorship that is the result of a combination of war psychosis and ethnic extremism.

Minority minorities
The overwhelming focus on the LTTE demands necessitated by the civil war has allowed the issues of the other smaller minorities to languish. The continuous focus of the interlocutors – including the Norwegians, who became involved in the peace process in the early 2000s – has been on the Tamil-Sinhalese rift, while others have felt cheated in the process. There is grave disquiet among the leaders of the Muslims and the Up-country (‘Indian’) Tamils, who hope that the winding down of almost three decades of discourse domination by the LTTE will lead to a hearing. The aspirations of the Up-country Tamils were long ignored by the Tiger leadership itself, while the Muslims have grievances in different directions.

The Muslims are spread over the country, though with a concentration in the east, where they make up a third of the population. The Muslim leadership feels that the 1987 Indo-Lanka Accord did them an injustice, because it legitimised a unified northeastern province that served the interest of the Tamils but undercut the Muslim base. The Muslims felt further alienated for being neglected in the Post-Tsunami Operating Mechanisms, set up following the devastation of 2004. For being a scattered population with a core identity based on faith, the Muslims of Sri Lanka articulate their demands based on ‘group identity’, which can be a challenge to those focused on individual rights.

Amidst the politics of exclusion carried out by the Colombo establishment after Independence in 1948, the rise of Tamil nationalism in the 1970s was seen as a liberating force in opposition to Sinhalese nationalism. But it could be said that the process was taken too far, and a brittle superstructure was created in which citizens were denied the possibility of maintaining mixed or layered identities. With a rigid and unbending state establishment favouring the Sinhala language, and giving primacy to Buddhism in 1972, the smaller communities were forced to strive for ever more exclusive self-definitions.

If the ‘post-LTTE’ era is to provide opportunity to rebuild the idea of Sri Lanka, in addition to defusing Sinhalese ultra-nationalism and ensuring respect and rights for the Tamils, it is vital to ensure that the smaller minorities feel included. The power-sharing proposed by the Thimphu Principles of 1985 – later guaranteed by the 13th Amendment of 1987, and recently developed by the All Party Representative Committee (APRC) – must be such that communities large and small have ownership, not only of the provinces but of the Centre. To shape the future polity, there is a need for a ‘southern consensus’, involving all political parties as well as civil society in Colombo, to define a multicultural future within devolution. Simultaneously, it seems that Sri Lanka also requires a ‘minorities consensus’ – to engage in parallel give-and-take, even as the communities challenge the centralised state establishment.

In a multicultural Southasia, there have been various attempts to make the nation state respond to the needs of diverse communities. In both India and Pakistan, the essence of federalism has been distorted in the implementation, and a distanced national capital is able to rule under the guise of devolution. With a relatively more homogenous population, Bangladesh has yet to show magnanimity towards the ‘different’ population of the Chittagong Hill Tracts. In Nepal, there is an acrimonious process underway to define the boundaries and scope of federalism to be incorporated into the new constitution. Sri Lanka, having endured a civil war of over two decades, has the opportunity, as the ‘war process’ ends, to craft a nation state defined by a power-sharing arrangement that is deserving of emulation. Rather than a didactic Centre that demands submission of one and all to the idea of a unitary state, can there be space for substantive autonomy within the nation state? Can there be asymmetry in devolution and layered identities, even as minorities are respected? Perhaps Sri Lanka will have the answer for us all.

Devolution and power-sharing
Discussions on devolution of power in Sri Lanka are not new. Right from 1931, the Donoughmore Constitution talked about power-sharing, and the Soulbury Constitution post-Independence attempted, albeit not very successfully, to ensure the protection of minorities. At the peak of the Tamil movement, the 13th Amendment to the Constitution of Sri Lanka, carried out in 1987, sought to respond to Tamil demands by granting devolution of power to newly constituted provincial councils. The 13th Amendment started with a handicap, because it was perceived as having been imposed, by New Delhi, on President J R Jayewardene following the Indo-Lanka Accord in July of that year. Another outcome of the Indo-Lanka Accord was the proposal to merge the Northern and Eastern provinces, following a referendum that never took place. The merger, meant to appease the Tamils but which disregarded Muslim aspirations, took place only in 1988, following a proclamation. The northeastern province was demerged following a Supreme Court decision in 2006, which ended up making the Tamils unhappy because it was seen as being motivated by Sinhalese nationalists.

The weaknesses in the 13th Amendment were aplenty. These included lack of clarity in the division of powers between the Centre and provinces; the monopoly of the Centre over key sectors that should have been the provinces’ prerogative, including police, education, health and land; and the ability of the Centre to curtail the powers of the provincial councils. Essentially, this was devolution within a unitary framework. More than the weak provisions on federalism, however, it was the prejudicial implementation by successive governments that made a mockery of the process.

Despite its limitations, and the approbation heaped on it by all quarters, the 13th Amendment holds a candle in the darkness for Sri Lanka. Once the war cries are stilled, the southern Sinhalese population must be persuaded that the lasting peace and unimagined prosperity lies in the honest implementation of the 13th Amendment as a starting point for devolution in letter and in spirit. As things stand, the atmosphere in Colombo is so vitiated today that few observers can even utter the ‘f’ word, with federalism considered part and parcel of unpatriotic pandering to the Tamils and international do-gooders. The 13th Amendment can, in fact, only be the beginning. The next step can follow the ideas outlined by what is known as the ‘Majority Report’ of the APRC, in terms of specific steps towards increased power-sharing.

The virulence of the reaction from the south against the Majority Report itself is indicative of the present mood among the Sinhalese intelligentsia against the strong power-sharing arrangement that has been recommended. In the best of worlds, it is Mahinda Rajapakse who would rise to the occasion, having defeated the LTTE, to make the statesmanlike offer of going back to devolution as the answer for his country. However, it is not clear that he will be personally amenable to such inclusive thinking, nor whether he can channel the agenda amidst the stridency. As one anonymous commentator says, “Rajapakse has not done anything to comfort the Tamils.”

President Rajapakse did create the APRC to discuss the political way ahead. But it has been hamstrung by a lack of seriousness of all concerned, other than the Sri Lanka Muslim Congress party, which represents the Muslims. Meanwhile, the Tamil community feels severely unrepresented by the APRC. For all its failings, however, the APRC had several workable positive proposals, such as the recognition of community identities; no ‘concurrent list’ of powers that are shared between the Centre and province; a strong commitment to fundamental rights spelled out; a constitutional court as a safeguard; and an emphasis on economic, social and cultural rights, along with the political. Meanwhile, pushing for the full implementation of the 13th Amendment, as opposed to minimal provisions in the APRC interim proposals, needs to be understood as being in no way contradictory to pushing for a larger devolution debate.

The process of devolution can begin forthwith, with the existing provisions of the 13th Amendment starting to be implemented as the jumping-off point of devolution. After all, it does allow for genuine powers to be exercised by the provincial councils. Meanwhile, a positively inclined government can start on myriad programmes to promote the spirit of devolution – it is long past time for Sinhalese commentators to insist that devolution ipso facto means the destruction of a unified Sri Lanka. Such programmes could include the effective implementation of the Official Languages Act, the provisions of which already allow either Tamil or Sinhala to be used in certain parts.

Together with devolution of powers to the provinces, the smaller minorities, including the non-territorial Muslims and Tamils of the south, must be assured that their interests will be protected. The share of representation at the national legislature, as well as access to opportunity at the central level, must similarly be ensured. Above all, the concentration of powers in the all-supreme executive presidency goes against the concept of devolution. While the 1978 Constitutional Amendment was claimed by some to have strengthened the office of the president in order to safeguard the minorities, instead it produced an over-centralised system, without checks and balances. The Constitutional Council, once meant to rein in unrestrained executive power, is no longer in existence. Meanwhile, the governors in the provinces, appointed by the president, have sweeping powers that make a mockery of the idea of devolution. The horrors of the 1983 anti-Tamil riots were proof enough that the executive presidency did not serve the purpose of protecting the minorities.

Democratically speaking
The political ground has shifted in Colombo, as politicians, commentators and large sections of civil society have changed gears to support the ‘war effort’. Barring a surprising and sagacious turnaround by President Rajapakse upon a defeat of the Tigers in the Vanni, it is clear that keeping the devolution debate alive is going to be an uphill task. Besides the wartime propaganda and populism among the Sinhalese fold, the return to devolution is blocked by the democracy deficit, which will over time come to haunt the Sinhalese themselves. The patriotic hype is at such an extreme today that the United Nationalist Party (UNP), the opposition party led by Ranil Wickremasinghe, can only genuflect in the direction that the president points. The Tamil political parties have but a token presence, and the much-fragmented SLMC is today considered the only independent force. In order to keep political allies quiescent, President Rajapakse has created an unwieldy cabinet of 90 ministers. With all the ministers and department heads reporting to the president and his brothers, Sri Lanka is witnessing a family-controlled politics in whose reflection the Bandaranaike era seems like child’s play.

Today, with the administration, the bureaucracy, the political class and the military effectively controlled by the Rajapakses, the opposition and civil society is cowed and compromised. In addition, the judiciary is challenged and about to undergo a change of leadership, while Sri Lanka has the ignominy of being identified as the most dangerous place in the world for journalists. Under such circumstances, which could rightly be dubbed the makings of an authoritarian oligarchy, the Sri Lankan polity cannot be termed free and capable to take up the issue of devolution.

Part of the prevalent aggressive chauvinism can be seen in the way the ‘internationals’ are viewed by government officials and commentators alike. There is indeed, as one journalist put it, a “post-Norwegian, anti-Western backlash” in Colombo today, which does not do the polity any good in terms of its ability to look at its own hopes and fears. While foreign involvement – either the overwhelming presence of India across the straits or the international community represented by powerful Western states and the United Nations – in Sri Lanka’s sovereign political space is to be decried, the mood today is to reject any and all interest as malevolent. Xenophobia is at an extreme.

The international focus on Sri Lanka is important to maintain, for it helps protect individual and community rights, as well as relieve extreme distress in a time of war. And with the deepening global economic crisis, it is becoming increasingly clear that Sri Lanka will be progressively dependent on international economic assistance. Indian engagement in Sri Lanka thus is not confined to the long arm of New Delhi, but represents significant economic interests as well. As arguably the most economically advanced country in Southasia, Sri Lanka is more connected to the global commercial arena – and, therefore, will be that much more affected. For this reason, Colombo would be forewarned to ratchet down the xenophobia and try to stay within world standards when it comes to fighting a war, rehabilitation, the space for minorities or democracy and pluralism.

Devolution cannot be divorced from the post-conflict democratisation of Sri Lanka, which itself requires a concerted attempt at demilitarisation. Unfortunately, the forecast is not good, for the east did not see demilitarisation even after it was released from the grip of the Tigers in 2007. Even the elections to the provincial councils did not see a real change, as local ownership over local matters did not take place.

As has become clear, one particularly pressing reason to revive the debate on devolution is the imminent demise of LTTE as we know it – ie, the rebels’ functioning as a pseudo-state apparatus with territory, population and military. It is safe to say that the days of the Tigers as the sole determinant of Tamil politics are coming to an end. This opening-up also provides the opportunity for other actors to shape the future of politics in Sri Lanka. However, after 25 year of conflict, battle fatigue and cynicism pervade the political arena. The democracy deficit countrywide, the demagoguery that is the flavour of the state establishment, the militarist mindset that has the momentum, the distance between the minorities, and the distancing of the international community – these are the challenges that need to be overcome in order to bring power-sharing back into the centre of the debate in Sri Lanka today.

~ Laxmi Murthy is Associate Editor and Kanak Mani Dixit is Editor and Publisher of Himal Southasian.

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