Archive for October, 2007

The Muslim Dream of Returning Home

by Sharika Thiranagama

When I went home again for the first time, I thought, this is the soil I was born in. This is the smell of my land, the red fields, the earth as red as blood. This is what my own land looks like. I wept. I screamed. All the memories I had as a child of every place. When we came home from school we would find the bodies of the slain. Once the helicopter came, the army, and bombed us. I remember all of this. Now we are like tourists. If we go there, when we think of our homes we cry with our memories, we left this and came. We left our brick house and came to live in cadjan (thatch) huts with the rain and snakes. How we used to live there! Our house is bombed, the walls are not even there. The LTTE (Liberation Tigers of Tamil Eelam) had taken everything there was” – Mumida

Mumida is a young Northern Muslim woman, from the Mannar district in the north, now living as an internally displaced person (IDP) in the Puttalam district in northwestern Sri Lanka. The home she refers to is her former natal village, shared between Tamils and Muslims. She is telling me about her first visit to her former village, 12 years after leaving it, in the brief period of grace opened up by a 2002 ceasefire between the warring Sri Lankan Government and the Tamil insurrectionary group the LTTE.

[At Nookkuraansolai welfare camp in Kandalkuda, Puttlam district, Picture by Dushiynthini Kanagasabapathipillai]

That ceasefire along with the visits of Muslims to their former homes has now collapsed. The memories she has of that home are of complex and multiple cycles of violence. She recalls the deaths and destruction caused by the military campaigns of the Sri Lankan Army against the Tamil-speaking populations of the north. However, the central event that frames her memories is the ethnic cleansing of Muslims from the north and the continuing violence of displacement.

In October 1990, the LTTE expelled all the 75,000–80,000 Muslims from the five districts in the north under its control, Vavuniya, Mannar, Mullaithivu, Jaffna, and Kilinochchi. They were given 24–48 hours to leave. In Jaffna, Muslims were given only two hours to leave. The order came from the highest ranks of the LTTE and no clear explanation was offered. It was a purely military operation and the reaction from the local Tamil community was of shock and surprise—though Tamils have accommodated it since.

By November, there were no more Muslims in the north. The LTTE had made the north the Tamil-only territory that they were fighting for. This ethnic cleansing is known as “the Eviction” and the community of Muslims created by this act are formally “IDPs” and refer to themselves as “Northern Muslims’ and “ahathi” (refugees). Puttalam district houses over 65,000 Northern Muslim refugees. Through two peace processes and ceasefires, their collective right to return and an LTTE guarantee that they will not be evicted again has never been brokered.

A few individual families have returned to the north but have faced harassment from the LTTE. The majority has not yet returned. Sri Lanka’s conflict has centred on the Sinhalese majority and Sri Lankan Tamils, Sri Lanka’s largest Tamil-speaking minority. Sri Lankan Muslims have barely featured in accounts of the ethnic conflict, but their lives too have been inextricably linked to the civil war. Muslims, though Tamil-speaking, are classified as an ethno-religious minority around the categories of religion and ethnicity, while Sri Lankan Tamils, Christian and Hindu, are classed as an ethnic minority around language and ethnicity.

Only the recent clashes between the LTTE and Eastern Muslims, and the Northern Muslim Eviction, have suddenly alerted attention to the precarious position of an ethnic minority that is a minority for both Sinhalese and Tamils. The implications of this positioning continues to leave Sri Lankan Muslims negotiating a war that is not being fought for them but is, nonetheless, consequential for their every day lives. Here I discuss Northern Muslims’ dreams of “return” and their fragile hopes of a Tamil and Muslim north.

The historicity of loss

” They were going from house to house … I asked them [LTTE cadres], “is this the house that your father’s mother built?” You have to ask! I am asking them straight “is this the house your father’s mother built? Is this the house the leader of the Tigers built? Have you come all this way to take from us, us who built this house, this threshold, who brought these things? Now if you want to go and catch a country, you do that. Take the country. Who would come and ask from people these things?” -Nachiya.

Nachiya’s story of the Eviction in Jaffna Muslims from the north, in contrast to the politically and numerically strong East Coast Muslims and the historically dominant Southern Muslims, were a politically and numerically vulnerable community. In 1990, Muslims from the north of Sri Lanka became “Northern Muslims”-a community created around (1) common origins in the northern districts of Sri Lanka; (2) a shared collective experience of “the Eviction”; and (3) collective internal displacement. Before the Eviction Muslims identified themselves through districts e.g. Jaffna Muslims, Mannar Muslims. The term “Northern Muslim” came into currency only after the Eviction and it denoted a community traumatically born through eviction, it gave them an origin in a place, a region, after they had lost it.

The strength of this collective identification and the density of stories of the Eviction in Puttalam cannot be underestimated. Refugees were living, as Nazleen put it to me once, “side by side with their sorrows.” Diverse families, individuals, and villages found that even though their pasts were dissimilar and multiple, in 1990 the LTTE ensured that their futures would be intertwined. This loss continues to structure Northern Muslim identity, through its concretization in the everyday residential spaces that Northern Muslims inhabit and recreate.

In 2003, I first went to Puttalam. Thirteen years after the Eviction, Northern Muslims continued to construct their identities around their former homes; new settlements and residence in camps were structured around former natal villages from the north. Children were still growing up in Jaffna or Erukalampiddy (Mannar) though actually in Puttalam. Refugees continued to make social and moral distinctions between “local” and ahathi (refugee) Muslims.

While Puttalam has historically a strong and influential Muslim minority, they were also seen as different from refugees—despite their shared ethnicity and language—on the basis of villages of regional origin. Differentiation between local and refugee on basis of regional origin, also worked to allow internal differentiation between Northern Muslims from different districts and villages. Refugees argued that different “homes” made different kinds of persons, drawing on former villages from the north—physically absent but still culturally nourishing. Houses in Puttalam clustered around the social relations of their absent former homes enfolding these as productive absences. Moreover, the idiom of home and natal villages which Northern Muslims still draw upon was consciously multi-ethnic; homes were shared between Tamils and Muslims and the idiom of shared homes and neighbourliness was frequently stressed as a counterpoint to the dominant narrative of a Tamil only north. Common loss was creating a shared everyday future.

Dreaming of return

Here I return to Mumida, who, like many of the younger generation of refugees does not imagine actual return to the north, still a war-zone. The key debate that drew together multiple stories, opinions, dreams, and divisions was the question of “return.” “Return” in Puttalam, as it is indeed for many populations (e.g. Palestinians) displaced by political violence, is more than compensation or even physical relocation. It is a profound social and emotional question about one’s place in the world, about recognition of injustice; it opens a horizon of expectations and dreams whose longings can never be fully satisfied.

In Puttalam, return plaited together two different kinds of conversations, one about the actual possibility of relocation and the renewal of actual neighbourhoods, and the second, about the acknowledgement of the legitimacy of return. However, this profoundly divided generations of Northern Muslims as refugees settled down and children married in Puttalam.

Relationships to former homes were formed directly for the older generation but, people asked, what of their children? Were these children, children actually of this home, Puttalam? And if so, did that make them different persons from their parents even though they were kin? Sometimes people even wondered if their children had a home. Conversations about “return” opened up the impossibility of a future in which the consequences of the Eviction could be erased, and one in which different generations occupied different emotional landscapes.

The older generation strongly desired return to the north, even as they acknowledged its impossibility. An intermediate generation, who came, struggled and raised children in the camps, spoke of their memories of their former villages and their longings for that life. However, they saw themselves tied to their children who had settled in Puttalam; not least many were frightened of undergoing another eviction again.

The younger generation, like Mumida, saw themselves very clearly as Northern Muslim but as Razika told me in 2007, “who wants to go back and die?” They were in fact Northern Muslims proper, their identities firmly rooted, not in their former homes as with their parents, but in a common history of displacement and eviction. While the impossibility of return constantly reminded people of their inability to return to a time before the Eviction, the impossibility of actual return could not exhaust the promise of return. It seemed sometimes that only the promise of return could bring back the ability to repair the past and the wounds of the Eviction and Tamil/Muslim relations.

I heard the interplay of these conversations in many houses and stories, in relation to children, land, Tamil neighbours, and to me. I make this distinction between the return as promise and the return as practical possibility because the symbolism of return is a story about belonging that is written into the making of Northern Muslim communities. Whether Muslims can physically return or not, which is becoming less likely as time passes, the emotional landscape of possible “return” remains central.

Even the young, who do not intend to return, are rooted in the experience of displacement and the story of a terrible injustice. Retelling Eviction stories beckoned to the necessity of insisting on the political legitimacy of return. For Northern Muslims a guarantee of return would be the acknowledgement of injustice and the repair of Tamil and Muslim relations. “Return” as such is a horizon of expectations, dreams, and fantasies; conversations about it speak to “a time before” Eviction and “a time after.”

Tamils and Muslim futures?

One of the themes common to all Eviction stories was Northern Muslim insistence that it had been the LTTE rather than Tamils who had evicted them, and the description of their Tamil neighbours as passive weeping observers. This insistence located ethnic cleansing as coming from the outside, refusing to poison intimate village relations which continued thus to be infused with love and longing. This is also not untrue, Muslim eviction was unpopular among northern Tamils and there is no evidence of civilian collusion. However, this insistence is as much ideological as factual, and it relates to Northern Muslim attempts to imagine a multi-ethnic north.

Muslim conversations about former homes drew on the people that these places were shared with. Shafiqa’s memories of Jaffna were all about her childhood relationship with a Hindu Tamil man from whom she and her brother were inseparable. In 2002 after the ceasefire a letter came carried by many hands to Shafiqa’s family from the old Tamil man. The letter told of his own displacement and his return to Jaffna. He too was now an IDP living in a cadjan hut, the Muslim family should, he wrote, come home to where they belonged so they could be neighbours again.

Shafiqa, married with a child in Puttalam, cannot return and her despair as she told me about this letter testifies to how “return” also promises the repair of social relations between Tamils and Muslims someday in the future. Despite the tightlipped silence of Tamils on Muslim eviction, some Northern Tamils did visit their former neighbours in camps, continuing intimacies that both sides treasured. However, largely, Tamils remain silent.

Many Tamils I interviewed refused to approve but also condemn the eviction of Northern Muslims. Presently, despite the much more violent and interpersonal breakdown of communal relations between eastern Tamils and Muslims, the Kattankudy Muslim associations have undertaken to raise money and feed thousands of Tamil refugees displaced by recent fighting. They have persisted despite the opposition of the two factions of the LTTE (now fighting against each other).

D.B.S. Jeyaraj, a Tamil journalist muses in his writing whether such actions indicate possibilities of a peaceful Sri Lanka. He points out that in the Tsunami, briefly Tamils, Muslims, and Sinhalese helped each other. Such narratives, in which the continuing intimacy of Tamils and Muslims is highlighted despite the war time atrocities, indicate a local need to cling onto an utopian story of peace in Sri Lanka, one that attempts to make Tamil and Muslim relations the fragile loom upon which a new future can be woven.

Will this weaving of the past with the present prove to be too fragile?

Is it fair that it is Northern Muslims, rather than Northern Tamils, who are being forced to demonstrate Tamil and Muslim kinship?

At the moment there are no answers. As the war continues to unfold in Sri Lanka, I am grateful that one community at least has maintained a multi-ethnic imagination of Sri Lanka, thereby stressing the necessity of continuing communication and intimacy.
Notes 1. Communal relations in the east are more tense than in the north.

2. D.B.S. Jeyaraj, “Kattankudi Muslims help Tamil IDPs in Araiyampathy,” Transcurrents.com, 20 March 2007 at, http://transcurrents.com/tamiliana/archives/302

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Torture Becoming Routine For Counter-Terrorism in Lanka

By Manfred Nowak

Recently, I undertook a visit to Sri Lanka from 1 to 8 October 2007.

I express my appreciation to the Government for the full cooperation it extended to me. In addition to detention facilities in Colombo, and the south east of the country, including in Galle, I also visited police stations and prison facilities between Trincomalee and Kandy, in the eastern and central parts of the country, respectively.

I have full appreciation for the challenges the Government faces from the violent and long-lasting conflict with the Liberation Tigers of Tamil Eelam (LTTE). Notwithstanding the difficult security situation the Government is faced with, Sri Lanka in principle is still able to uphold its democratic principles, ensure activities of civil society organizations and media, and maintain an independent judiciary.

The primary focus of my visit related to torture, ill-treatment and conditions of detention in the ordinary context of the criminal justice system.

The high number of indictments for torture filed by the Attorney General’s Office, the number of successful fundamental rights cases decided by the Supreme Court of Sri Lanka, as well as the high number of complaints that the National Human Rights Commission continues to receive on an almost daily basis indicates that torture is widely practiced in Sri Lanka.

Moreover, I observe that this practice is prone to become routine in the context of counter-terrorism operations, in particular by the Terrorist Investigation Department.

Over the course of my visits to police stations and prisons, I received numerous consistent and credible allegations from detainees who reported that they were ill-treated by the police during inquiries in order to extract confessions, or to obtain information in relation to other criminal offences.

Similar allegations were received with respect to the army. I note that Sri Lanka already has many of the elements in place necessary to both prevent torture and combat impunity.

The 1994 Torture Act criminalizes torture and the Attorney General has filed a significant number of indictments under it, though only three convictions have resulted within last 13 years.

A number of shortcomings remain, inter alia: despite the high standards of proof applied by the Supreme Court in torture-related fundamental rights cases, the facts established therein do not trigger more convictions by criminal courts; reportedly because of the Torture Act’s high mandatory minimum sentence of seven years, it is effectively a disincentive to apply against perpetrators; the absence of effective ex-officio investigation mechanisms in accordance with Art 12 CAT; and the various obstacles detainees face in filing complaints and gaining access to independent medical examinations while still detained.

As far as conditions of detention are concerned, the combination of severe overcrowding with antiquated infrastructure of certain prison facilities places unbearable strains on services and resources, which for detainees in certain prisons, such as the Colombo Remand Prison, amount to degrading treatment.

Although the conditions are definitely better in prisons with more modern facilities, the prison system as a whole is in need of structural reform. Conditions become inhuman for suspects held in police lock-ups under detention orders pursuant to the Emergency Regulations for periods of several months up to one year, such as in CID or TID detention facilities.

I appreciate the recent abolition of corporal punishment in Sri Lanka, however, I still received disturbing complaints of cases of corporal punishment in prisons, which were corroborated by medical evidence.

Accordingly, on the basis of my findings I recommended to the Government a number of measures to prevent and combat torture and ill-treatment.

* Design and implement comprehensive structural reform of the prison system aimed at reducing the number of detainees, increasing prison capacities and modernising the prison facilities;

* Remove non-violent offenders from confinement in pre-trial detention facilities, and subject them to non-custodial measures (i.e. guarantees to appear for trial, at any other stage of the judicial proceedings and, should occasion arise, for execution of the judgment);

* Ensure separation of remand and convicted prisoners; * Ensure separation of juvenile and adult detainees, and ensure the deprivation of liberty of children to an absolute minimum as required by Art 37 (b) CRC;

* Reduce the period of police custody under the Emergency Regulations;

* Establish appropriate detention facilities for persons kept in prolonged custody under the Emergency Regulations;

* Investigate corporal punishment cases at Bogambara Prison as well as torture allegations against the TID, mainly in Boossa, aimed at bringing the perpetrators to justice;

* Abolish capital punishment or, at a minimum, commute death sentences into prison sentences; * Develop proper mechanisms for the protection of torture victims and witnesses;

* Establish centres for the rehabilitation of torture victims;

* Ensure that magistrates routinely ask persons brought from police custody how they have been treated and, even in the absence of a formal complaint from the defendant, order an independent medical examination in accordance with the Istanbul Protocol;

* Ratify the Optional Protocol to the Convention against Torture, and establish a truly independent monitoring mechanism to visit all places where persons are deprived of their liberty throughout the country, and carry out private interviews;

* Expedite criminal procedures relating to torture cases by, e.g., establishing special courts dealing with torture and ill-treatment;

* Allow judges to be able to exercise more discretion in sentencing perpetrators of torture under the 1994 Torture Act;

* Ensure that all allegations of torture and ill-treatment are promptly and thoroughly investigated by an independent authority with no connection to the authority investigating or prosecuting the case against the alleged victim;

* Ensure all public officials, in particular prison doctors, prison officials and magistrates who have reasons to suspect an act of torture or ill-treatment, to report ex officio to the relevant authorities for proper investigation in accordance with Art 12 CAT;

* Ensure that confessions made by persons in custody without the presence of a lawyer and that are not confirmed before a judge shall not be admissible as evidence against the persons who made the confession;

* Establish an effective and independent complaints system in prisons for torture and abuse leading to criminal investigations;

* Ensure security personnel shall undergo extensive and thorough training using a curriculum that incorporates human rights education throughout and that includes training in effective interrogation techniques and the proper use of policing equipment, and that existing personnel receive continuing education;

* Establish a field presence of the Office of the UN High Commissioner for Human Rights with a mandate of both monitoring the human rights situation in the country, including the right of unimpeded access to all places of detention, and providing technical assistance particularly in the field of judicial, police and prison reform. I encourage the international community to assist the Government of Sri Lanka to follow-up on these recommendations.

This article is excerpted from the report presented by UN Special Rapporteur on Torture, Manfred Nowak.

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UN Special Rapporteur on Torture Wants UN Field Mission in Sri Lanka

The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, issued the following statement today:

“I was invited by the Government of Sri Lanka to undertake a visit to the country from 1 to 8 October 2007.

The purpose of my visit was to assess the situation of torture and ill-treatment in the country, and to strengthen a process of sustained cooperation with the Government to assist it in its efforts to improve the administration of justice. I express my appreciation to the Government for the full cooperation it extended to me.

I further express my gratitude to the United Nations Resident Coordinator and his team for the excellent assistance provided throughout the mission. Meetings and places I held meetings with Government officials, including the Secretary of Foreign Affairs, the Minister of Disaster Management and Human Rights, the Minister of Justice, the Chief Justice of the Supreme Court, the Attorney General, the Inspector General of Police, the Commissioner General of Prisons, the National Human Rights Commission, the Army’s legal advisor on human rights, and the Secretary General for the Secretariat for Coordinating the Peace Process.

During the mission I also met with a broad range of civil society organizations, lawyers, medical professionals, and representatives of international organizations and the diplomatic corps. I wish to take the opportunity to thank the Inspector General of Police and the Commissioner General of Prisons for opening up the prisons and police detention facilities without restrictions, including the carrying out unannounced visits, and enabling me to conduct private interviews with detainees. In Colombo and vicinity, I visited Welikada Prison, Colombo Remand Prison, the New Magazine Prison (Female Ward), the Criminal Investigation Department (CID), the Terrorist Investigation Department (TID), Mt. Lavinia Police Station, Ratmalana Police Post, and Panandura South Police Station.

In Galle, I visited the TID detention facility at Boossa. In Trincomalee and vicinity, I visited Trincomalee Prison, Trincomalee Police Headquarters (including CID), China Bay Police Station, Kantale Police Station, Polonnaruwa Police Station, and Polonnaruwa Prison. In and around Kandy, I visited Bogambara Prison, Katugastota Police Station, and Wattegama Police Station. Context and challenges in the promotion and protection of human rights

At the outset, I should state that I have full appreciation for the challenges the Government faces from the violent and long-lasting conflict with the Liberation Tigers of Tamil Eelam (LTTE). Notwithstanding the difficult security situation the Government is faced with, Sri Lanka in principle is still able to uphold its democratic principles, ensure activities of civil society organizations and media, and maintain an independent judiciary.

Scope of the visit

I should explain that it was my intention at first to assess the situation of torture and ill-treatment in the entire territory of the country, and to examine not only torture and ill-treatment allegedly committed by the police and other security forces of the Government of Sri Lanka, but also those allegedly committed by or on behalf of other parties to the present conflict, including the LTTE. Indeed the most serious allegations of human rights violations that come to light, including those related to torture and ill-treatment, are in relation to the conflict and are alleged to be committed by both Government and non-State forces, including the LTTE and the TMVP-Karuna group.

However, since the Government insisted that the armed forces no longer kept detainees within their facilities and therefore no identifiable detention facilities existed, and also did not permit me to travel to Kilinochchi in order for me to conduct meetings with the LTTE leadership and visit their detention facilities, I am not in a position to draw conclusions in relation to the practice of torture and ill-treatment in the particular context of the conflict. The primary focus of my findings therefore relate to torture, ill-treatment and conditions of detention in the ordinary context of the criminal justice system, including with respect to the Emergency Regulations.

The practice of torture

Though the Government has disagreed, in my opinion the high number of indictments for torture filed by the Attorney General’s Office, the number of successful fundamental rights cases decided by the Supreme Court of Sri Lanka, as well as the high number of complaints that the National Human Rights Commission continues to receive on an almost daily basis indicates that torture is widely practiced in Sri Lanka. Moreover, I observe that this practice is prone to become routine in the context of counter-terrorism operations, in particular by the TID. Over the course of my visits to police stations and prisons, I received numerous consistent and credible allegations from detainees who reported that they were ill-treated by the police during inquiries in order to extract confessions, or to obtain information in relation to other criminal offences.

Similar allegations were received with respect to the army. Methods reported included beating with various weapons, beating on the soles of the feet (falaqa), blows to the ears (“telephono”), positional abuse when handcuffed or bound, suspension in various positions, including strappado, “butchery”, “reversed butchery”, and “parrot’s perch” (or dharma chakara), burning with metal objects and cigarettes, asphyxiation with plastic bags with chilli pepper or gasoline, and various forms of genital torture. This array of torture finds its fullest manifestation at the TID detention facility in Boossa. Intimidation of victims by police officers to refrain from making complaints against them was commonly reported, as were allegations of threats of further violence, or threatening to fabricate criminal cases of possession of narcotics or dangerous weapons.

Detainees regularly reported that habeas corpus hearings before a magistrate either involved no real opportunity to complain about police torture given that they were often escorted to courts by the very same perpetrators, or that the magistrate did not inquire into whether the suspect was mistreated in custody. Medical examinations were frequently alleged to take place in the presence of the perpetrators, or directed to junior doctors with little experience in documentation of injuries.

Accountability and prevention

In general, I note that Sri Lanka already has many of the elements in place necessary to both prevent torture and combat impunity, such as fundamental rights complaints before the Supreme Court in relation to Art 11 of the Constitution, indictments and prosecutions based on the 1994 Convention against Torture Act, bringing suspects before magistrates within the statutory 24 hour period, formal legal medical examinations by trained forensic experts (Judicial Medical Officers), and investigations and visits by the National Human Rights Commission (NHRC).

The commitment of the Government to prevent torture is also demonstrated by the establishment of mechanisms by the Inspector General of Police and the Attorney General’s Office specifically to investigate allegations of torture (e.g. the Special Investigations Unit and the Prosecution of Torture Perpetrators Unit). Moreover, with respect to my mandate the Government regularly continues to provide clarifications and up-dates with regard to communications related to such violations.

However, a number of shortcomings remain, and most significantly, the absence of an independent and effective preventive mechanism mandated to make regular and unannounced visits to all places of detention throughout the country at any time, to conduct private interviews with detainees, and to subject them to thorough independent medical examinations. It is my conviction that this is the most effective way of preventing torture.

In the case of Sri Lanka, I am not satisfied that visits undertaken by existing mechanisms, such as the NHRC, are presently fulfilling this role, or realizing this level of scrutiny. I appreciate that by enacting the 1994 Torture Act, the Government has implemented its obligation to criminalize torture and bring perpetrators to justice. I am also encouraged by the significant number of indictments filed by the Attorney General under this Act.

However, I regret that these indictments have led so far only to three convictions. One of the factors influencing this outcome is reportedly because of the Torture Act’s high mandatory minimum sentence of seven years; it is effectively a disincentive to apply against perpetrators. Other factors are the absence of effective ex-officio investigation mechanisms in accordance with Art 12 CAT, as well as various obstacles detainees face in filing complaints and gaining access to independent medical examinations while still detained. Given the high standards of proof applied by the Supreme Court in torture related cases, it is regrettable that the facts established do not trigger more convictions by criminal courts.

Conditions of detention

As far as conditions of detention are concerned, the Government provided me with statistics indicating severe overcrowding of prisons. While the total capacity of all prisons amounts to 8,200, the actual prison population reaches 28,000. That poor conditions of detention can amount to inhuman and degrading treatment is well established in the jurisprudence of several international and regional human rights mechanisms.

In Sri Lanka the combination of severe overcrowding with antiquated infrastructure of certain prison facilities places unbearable strains on services and resources, which for detainees in certain prisons, such as the Colombo Remand Prison, amounts to degrading treatment in my opinion. The lack of adequate facilities also leads to a situation where convicted prisoners are held together with pre-trial detainees in violation of Sri Lanka’s obligation under Art 10 of the International Covenant on Civil and Political Rights.

Although the conditions are definitely better in prisons with more modern facilities, such as Polonnaruwa and the Female Ward of the New Magazine Prison, the prison system as a whole is in need of structural reform. During my visit of various police stations I observed that detainees are locked up in basic cells, sleeping on the concrete floor and often without natural light and sufficient ventilation. While I am not concerned about such conditions for criminal suspects held in police custody for up to 24 hours, these conditions become inhuman for suspects held in these cells under detention orders pursuant to the Emergency Regulations for periods of several months up to one year. This applies both for smaller police stations, such as at Mt. Lavinia, and especially for the headquarters of the CID and TID in Colombo, where detainees are kept in rooms used as offices during the day-time, and forced to sleep on desks in some cases.

Corporal punishment in prisons and the death penalty

I appreciate the recent abolition of corporal punishment in Sri Lanka, however, in Bogambara Prison I received disturbing complaints of cases of corporal punishment corroborated by medical evidence. I am pleased to report that the Government has initiated an inquiry to look into this matter. On the death penalty, I am encouraged by the policy of Sri Lanka not to carry out death sentences for over thirty years. Nevertheless, courts continue to sentence persons to death, which leads to a considerable number of condemned prisoners living for many years under the strict conditions of death row.

Preliminary recommendations

On the basis of my preliminary findings I recommend, inter alia, that the Government:

* Design and implement comprehensive structural reform of the prison system aimed at reducing the number of detainees, increasing prison capacities and modernising the prison facilities;

* Remove non-violent offenders from confinement in pre-trial detention facilities, and subject them to non-custodial measures (i.e. guarantees to appear for trial, at any other stage of the judicial proceedings and, should occasion arise, for execution of the judgment);

* Ensure separation of remand and convicted prisoners; * Ensure separation of juvenile and adult detainees, and ensure the deprivation of liberty of children to an absolute minimum as required by Art 37 (b) CRC;

* Reduce the period of police custody under the Emergency Regulations;

* Establish appropriate detention facilities for persons kept in prolonged custody under the Emergency Regulations;

* Investigate corporal punishment cases at Bogambara Prison as well as torture allegations against the TID, mainly in Boossa, aimed at bringing the perpetrators to justice;

* Abolish capital punishment or, at a minimum, commute death sentences into prison sentences; * Develop proper mechanisms for the protection of torture victims and witnesses;

* Establish centres for the rehabilitation of torture victims;

* Ensure that magistrates routinely ask persons brought from police custody how they have been treated and, even in the absence of a formal complaint from the defendant, order an independent medical examination in accordance with the Istanbul Protocol;

* Ratify the Optional Protocol to the Convention against Torture, and establish a truly independent monitoring mechanism to visit all places where persons are deprived of their liberty throughout the country, and carry out private interviews;

* Expedite criminal procedures relating to torture cases by, e.g., establishing special courts dealing with torture and ill-treatment;

* Allow judges to be able to exercise more discretion in sentencing perpetrators of torture under the 1994 Torture Act;

* Ensure that all allegations of torture and ill-treatment are promptly and thoroughly investigated by an independent authority with no connection to the authority investigating or prosecuting the case against the alleged victim;

* Ensure all public officials, in particular prison doctors, prison officials and magistrates who have reasons to suspect an act of torture or ill-treatment, to report ex officio to the relevant authorities for proper investigation in accordance with Art 12 CAT;

* Ensure that confessions made by persons in custody without the presence of a lawyer and that are not confirmed before a judge shall not be admissible as evidence against the persons who made the confession;

* Establish an effective and independent complaints system in prisons for torture and abuse leading to criminal investigations;

* Ensure security personnel shall undergo extensive and thorough training using a curriculum that incorporates human rights education throughout and that includes training in effective interrogation techniques and the proper use of policing equipment, and that existing personnel receive continuing education;

* Establish a field presence of the Office of the UN High Commissioner for Human Rights with a mandate of both monitoring the human rights situation in the country, including the right of unimpeded access to all places of detention, and providing technical assistance particularly in the field of judicial, police and prison reform. I encourage the international community to assist the Government of Sri Lanka to follow-up on these recommendations.

” The Special Rapporteur shared his preliminary findings with the Government at the close of his mission, to which the Government responded with constructive comments. He is pleased to report that the Government will appoint a high-level task force to study his recommendations, consisting of public sector stakeholders and members representing judicial and civil society sectors. The Special Rapporteur will submit a comprehensive written report on the visit to the United Nations Human Rights Council. (ENDS)

Mr. Nowak was appointed Special Rapporteur on 1 December 2004 by the United Nations Commission on Human Rights. As Special Rapporteur, he is independent from any government and serves in his individual capacity. The Commission first decided to appoint a special rapporteur to examine questions relevant to torture in 1985. The mandate, since assumed by the Human Rights Council, covers all countries, whether or not they have ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Mr. Nowak has previously served as member of the Working Group on Enforced and Involuntary Disappearances; the UN expert on missing persons in the former Yugoslavia; the UN expert on legal questions on enforced disappearances; and as a judge at the Human Rights Chamber for Bosnia and Herzegovina. He is Professor of Constitutional Law and Human Rights at the University of Vienna, and Director of the Ludwig Boltzmann Institute of Human Rights.

[UN Press Release]

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Prabakaran Has Done To Tamils What No Dutugemunu Could Do

By S.Rasalingam

The comments by various people show how foolishly we tamils continue to glorify violence, suicide and terror. We began all this in 1939 with G.G. Ponnambalam attacking the Sinhalese in a virulent speech in1939, resulting in the first Sinhala Tamil Riot, fully exploited politically by SWRDBanda and other Sinhala chauvinists.

After the war SJV and others used every chance to gore the government instead of building bridges. They spurned the left leaders who stood for parity and preferred to hob-nob with their Col-7 capitalist leaders.

Our Colombo-Tamil leaders arrogantly started the ball rolling, and even claimed that they are “ready for state terror”. The local militants realized that they were being bamboozled by the Colombo set, and they captured control, killed those leaders, our best men and women, and made cannon fodder out of our children.

Look at this partial list:

1. The JR government in 1977 granted ALL the demands on language etc., that the previous Tamil organizations had asked for. But we could not profit from it, because by then we were under the gun of Prabakaran.

2. India came in and merged North and East, and provided an honourable framework. But we reengaged the whole thing and started another war. Prabakaran would have been annihilated by the IPKF if not for Premadasa.

3.Further accommodation was possible under Premadasa. But we reengaged him and killed the 600 police who surrendered.

4. Under Chandrika we had the far reaching constitutional proposals by Neelan Thiruchelvan, but we replied by assassinating him.

5.Incredible concessions were made by the Ranil Wickremasinghe government with the Cease Fire agreement. But we used it to stock up arms, get ready for another war and made sure of such a war by preventing Ranil’s Victory.

This list of 5 does not include the innumerable other chances that had been offered. Why would any
politician think that a political solution is possible with VP?

So, why are were talking of a political solution?

LTTE has always worked for a military solution. This Anuradhapura attack is the same old Killinochchi wine that Bishop Chikera is now peddling and desecrating even the Eucharist. The LTTE does NOT want a political solution. It wants a military solution from the barrel of a gun. In the process it will destroy the Ceylon tamils by destroying the future generation. How many tamils are now left in the Vanni? What is the percentage of Tamils in Sri Lanka today? The CIA world fact book says that there is now only about 5% Tamils in SL!

Instead of executing this attack on the Anuradhapura military camp, if Prabakaran had declared that HE IS FOR A FEDERAL SOLUTION and that HE WILL PEACEFULLY CONTEST ELECTIONS EVERYWHERE IN SRI LANKA, do you think ANY SINHALA POLITICIAN of any worth could OPPOSE IT? Even the most extreme “unitary man” would have to take up the historic chance.

Even many Sinhala might vote for Prabakaran if he had the capacity to the right thing. But a “Venkai” does not change its spots.

Instead, for 30 years, he has led the Tamils on the path of destruction and suicide. Foolish Tamils, drunk with the venom of hate sing in his praise.

I lay the whole blame on Prabakaran.

for destroying the Ceylon Tamils. He is the biggest friend of Sinhala Chauvinists. Prabakaran has done what no Dutugemunu could ever do – reduce the Tamil areas to a prison for the Tamils, reduce the reputation of Tamils all over the world, kill our next generation and convert the remainder into war-mongering youngsters unfit for civilian life. The adults have been reduced to displace persons.

School principles and Temple dignitaries have been assassinated.

Only the Tamils living in cozy comfort in the foreign lands can continue to rattle their swords, mesmerized by Prabakaran’s war games which have destroyed the Tamil people, and impoverished the Sinhala as well.

Nothing is possible for the Ceylon Tamils until Prabakaran is a factor in the balance of power. Tamils need educated leaders with a vision fit for today’s global village.

Editor’s Note: Written By S.Rasalingam, as reader’s comment for the article, In the Aftermath of the A’Pura Attack.

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Wait for OUR ‘home grown solution’ – SL President Mahinda Rajapaksa

By Dr. S. Narapalasingam

President Mahinda Rajapaksa repeated his strategic response to the international call for a lasting political settlement to Sri Lanka’s protracted ethno-political conflict in his keynote address to the Hindustan Times Leadership Summit in New Delhi held on October 13 under the theme ‘The India that can be.’ He said, “Sri Lanka, remains a vibrant democracy (sic), but lacked the advantage of a Constitution drawn up by our own people in keeping with our own ideals of freedom and governance. We began with a Constitution bestowed upon us by our former colonial ruler. The absence of a home-spun system of governance is something we are seeking to address today.” He also reiterated, “Sri Lanka is determined to fight terrorism, while committed to seeking a negotiated and sustainable solution to the conflict”. (The Sunday Observer 14 October 2007).

[President Mahinda Rajapaksa at the National Vapmagul ceremony held at Magalla in Nikaweratiya recently, is seen ploughing the field during the event staged to promote local food production – Pic: Pradeep Dilrukshana, Daily Mirror]

In the name of fighting terrorism, human rights and rule of law are being violated. The war is helping to conceal many problems caused by those abusing their power with impunity. People are expected to put up with the hardships since the elimination of terrorism is the main concern. Delaying the process of political reform, which is the assured approach for defeating terrorism and securing lasting peace and stability has also been not difficult with the attention of the Sinhala people drawn towards the ‘war on terror’. Negotiated political settlement is another slogan without serious intent. The negotiation is to be with the Tigers, who are fighting for a separate home land. The APRC process cited by the President as sincere commitment of the government to seek a “home grown solution” is now stalled and according to Chairman Prof. Tissa Vitharana, “it is too early to mention a specific time frame for submitting a final report” (Daily Mirror 20 October 2007). Anyway, it is uncertain whether the final set of proposals will be accepted as ‘OURS’ because of the President’s political necessity to include ultra Sinhala nationalistic members like JHU and JVP in his home.

The Experts Committee majority report of December 2006 was not acceptable to the President because it originated from a mixed soil identified with all three ethnic communities-Sinhala, Tamil and Muslim! The emphasis on ‘home grown’ solution in New Delhi also served to convey the message that India need not worry about her neighbour’s political field. However, the leader of the Western People’s Front and Convener of the Monitoring Commission on Disappearances and Extra Judicial Killings Mano Ganesan MP has now openly called for India’s involvement to end the damaging (for both countries) ethno-political conflict. He is a liberal democrat and human rights activist committed to the unity and integrity of the country. His challenging role in regaining the motherland of Sinhalese, Tamils and Muslims is widely admired.

Let me recall here, the final paragraph of my previous article-‘Sri Lanka’s homemade political constitutions‘-in the TamilWeek (October 7-13): “If the objective is to come up with a set of rules and guidelines useful for ensuring unity in ethnic diversity, political stability, real peace and development of all regions beneficial to the future wellbeing of the country, it has to be performed thoughtfully from a truly national perspective respecting the equality of all citizens and the aspirations and concerns of all ethnic communities. As in the past, narrow political interest should not influence the outcome. It should be flexible to accommodate the interests of all communities as long as these are not in conflict with the all-encompassing national (and not Sinhala hegemonic) interest. It should be a living article of faith for all communities”. The present constitution is also divisive because it has not been structured from a wide national perspective to meet these desirable aims. Now, President Mahinda Rajapaksa wants a constitution “in keeping with OUR (emphasis mine) own ideals of freedom and governance”. The 1972 and 1978 constitutions were also structured according to the ideals of the then political masters ignoring the aspirations and hopes of the OTHER (Tamil speaking) people in the country. Does President Rajapaksa want another constitution that can be regarded as OURS from the perspective of his Sinhala Buddhist cohorts? In this event, one can expect another party in power renewing the reform process according to its own perception of ‘our ideals’. Playing this game intermittently is part of the negative political culture that has evolved over the past 35 years.

Failed constitution

Present constitution of Sri Lanka like its predecessor has failed to foster unity, peace and stability vital for building a robust prosperous nation. Furthermore, it has failed to safeguard human rights, good governance, rule of law and democratic freedoms. The present political, financial, economic and law-and-order crises bear testimony to the several weaknesses in the system of administration. The anomalies and contradictions therein are well known to the political leaders but these do not bother some with self-interest in party politics. This writer in the previous article also pointed to the wrong approach taken to draft the 1972 and 1978 Constitutions ignoring the aspirations of all communities as well as the unity and integrity of the island nation. The need for constitutional changes arises from a wide range of issues that are pestering the people in their daily lives. The ethno-political conflict is only one prolonged issue that is obstructing the political, social and economic advancement of the country. As stated in the previous article, the present constitution is serving only those who are in positions to exploit the system for personal and short-term political gains.

Nepotism and the abuse of power for ill-gotten gains by those enjoying attractive salaries and enormous perks for supposedly serving the people and the country are clear manifestations of the nationally useless system. It is these attractions that have also tempted the class of avaricious politicians to retain its main features. It is not the long-term future of the multi-ethnic country but the retention of the present power structure is the main concern of some politicians. Democracy should be firmly based on the rule of law, social justice and individual human rights, freedom of thought and expression and equal rights and opportunities for all the communities in the different provinces to fulfill their shared aspirations and prosper. If any of these basics are lacking, then democracy is undermined. And on this basis the present political system is not really democratic.

The non-implementation of the 17th Amendment and the moves to circumvent even the minimal checks and balances set up for ensuring accountability and ‘good governance’ indicate the real intent of the egocentric politicians. The scandalous findings of the Parliamentary Committee on Public Enterprises (COPE) also reveal the enormous damage done to the well-being of the people and the country by corrupt officials. The system itself is corrupt now. Attempt to scuttle the mandated work of COPE and the Parliamentary Accounts Committee (PAC) is now seen to be in the hidden agenda of the controllers. The inclination to act outside the system is rising. At the Cabinet meeting on October 24, President Rajapaksa is reported to have expressed doubts over the manner in which investigations have been carried out by the COPE and the PAC. One controversy pertains to the massive VAT fraud in the Inland Revenue Department, which comes under the Ministry of Finance. The Minister of Finance is the President. The COPE Chairman Wijedasa Rajapakse at a joint meeting of COPE and PAC members on October 24 emphasized the need to allow the parliament committees to carry out their duties independently and said any move to undermine the mandate of COPE and PAC should be condemned. This seems to be the general view of the members of the two committees. The loopholes in the Appropriation Bill for 2008 presented to Parliament on October 10 have also been pointed out by concerned citizens, the JVP and civil organizations.

M. B. Mathmaluwe has drawn attention to the narrow impulsive thinking that shaped the present constitution. (Ref. two-part article on “When democracy is under siege, Role the national press can play” – The Island October 18 and 19) Interestingly, how the system permits democracy to be undermined has been bared. The Executive Presidency was created to make governance independent of “the whims and fancies of the National State Assembly.” The original assumption was: People’s power in the hands of one supreme person, the President will expedite the development process. Under the 1978 Constitution, “the Executive President’s power extended over every aspect of the country’s administration, with little provision for the Parliament to curb it. Indeed, if there appeared at all, a few cosmetics of checks and balances, all the required mechanisms of maneuver to negate every one of them, were with the President”. And that is exactly what JR did, when the need arose. “He could do no wrong; blanket immunity had been secured by him, so that no legal proceedings could be instituted against him either in his official or private capacity in any Court of Law or Tribunal”.

There is no doubt, “this kind of concentration of power in the hands of one person, is inconsistent with the spirit of democracy and is unacceptable under a genuinely democratic government. Thinking men who have studied the nature of power have warned, time and again, to be wary of the many abuses it can lead to.” In this regard, the analyst has poignantly reminded the general warning given in 1978 by the late Dr. N. M. Perera who foresaw the adverse consequences that followed later. When the system considers a person is above the law of the land, it loses a cardinal principle of democracy. The analyst has pungently said: “It is here, that one sees how a person can subvert democracy by using the mechanisms of democracy”. The concluding remark is also very relevant to the present predicament. “Whatever, politicians say from time to time about saving democracy; their interests are only with themselves and their welfare”. The irony is when democracy is not vibrant because of political manipulation by democratically elected persons for consolidating power and other limited gains, then continuity of conditions conducive for stability, peace and overall development is difficult. Media freedom which is essential to democracy is also a target of political manipulation. There is some evidence to infer that this is happening. Sri Lanka has been ranked a poor 156 out of 169 countries in the World Press Freedom Index released recently by Reporters Without Borders (RSF). RSF compiled the index by sending a questionnaire to the 15 freedom of expression organizations throughout the world that are its partners, to its network of 130 correspondents, and to journalists, researchers, jurists and human rights activists. It contained 50 questions about press freedom in their countries.

Democracy and majoritarianism

The Sinhala nationalists interpret Democracy as majority rule ignoring the diverse composition of the population. This concept makes sense in one monolingual ethnic society where all the members have the same historical root, traditions and collective aspirations but not in a plural society. The presumption that the Sinhala majority rule conforms to democratic ideals is wishful thinking. If the Sinhala supremacists think they have the right to dominate national politics, because over 70% of the population is Sinhalese then this stance conflicts with not only democratic but also Buddhist ideals. It is this thinking that created the majority-minority division in Sri Lanka and has been hindering the settlement of the ethnic problem outside the unitary (majoritarian) system. The hindrance is now more intense because of the leaning of the President towards Sinhala nationalists.

The current war against the LTTE has also contributed to this change. The word ‘federal’ was not obnoxious five years back as it is today. If the separatists wanted the rise of Sinhala nationalism to expedite the division of the country, their plan seems to have backfired. Had the armed struggle been for self-rule with clear commitment to pluralism, human rights and democracy, the international community would not have turned strongly against the LTTE. It is the thoughtless sole dependence on killing unarmed civilians, including politicians and others perceived as ‘traitors’ to their cause as means to acquire an idealistic political objective that has put the rebels in the ‘terrorists’ grouping. However, it is because of the plight of the hapless Tamils, who are now victims of both State and non-state terror and the lack of keenness by a section of the Sinhala polity to settle the conflict by sharing power with the ethnic minorities; the LTTE is being tolerated to some extent. Those condemning the foreign governments that have banned the LTTE in their countries of double standards have not grasped this critical point.

Indian Constitution

President Rajapaksa in his New Delhi speech also drew attention to India’s “home grown” approach that “has served the country well in facing up to many challenges.” India’s approach to the adoption of national constitution was altruistic and holistic and unlike in Sri Lanka those involved in the virtuous task of structuring it were enlightened futurists. The principal aim was to consolidate the unity and the patriotic Indian national identity achieved under Mahatma Gandhi’s leadership; eradicate social/caste discrimination and poverty; and build a strong non-aligned democratic pluralistic nation. Although the majority of Indians are Hindus, India opted to be a secular State. The vision of our creators did not extend beyond the then life of the Parliament and at most that of its very next one.

India’s all inclusive approach involving provincial and national leaders is the main reason for the success. They all had the same vision of India’s future. There were no hidden political agendas from any quarter. The Constituent Assembly of India was the body that framed the Nation’s constitution. It is important to note how this Assembly was formed. The people of India elected the members of the provincial assemblies, who in turn elected the Constituent Assembly. The Congress party with its nation-wide popularity could have taken the political approach but it had the wisdom not to take this line.

Jawaharlal Nehru, Rajendra Prasad, Sardar Vallabhbhai Patel, Maulana Abul Kalam Azad and Shyama Prasad Mukherjee were some key figures in the Assembly. There were more than 30 members of the scheduled classes. Frank Anthony represented the Anglo-Indian community, and the Parsis were represented by H. P. Modi and R. K. Sidhwa. The Chairman of the Minorities Committee was Harendra Coomar Mookerjee, a distinguished Christian who represented all Christians other than Anglo-Indians. Constitutional experts like Alladi Krishnaswamy Iyer, B. R. Ambedkar (a Buddhist harijan), B. N. Rau and K. M. Munshi were also members of the Assembly. Sarojini Naidu, Hansa Mehta, Durgabai Deshmukh and Rajkumari Amrit Kaur were important women members. The first president of the Constituent Assembly was Sachidanand Sinha but later, Rajendra Prasad was elected president of the Constituent Assembly while B. R. Ambedkar was appointed the Chairman of the Drafting Committee. The Constituent Assembly sessions were open to the press and the public. In Sri Lanka, it was powerful politicians in the government who also functioned as constitution experts. In hindsight, President Rajapaksa must be regretting the appointment of the Experts Panel to assist the APRC. He rejected not only the recommendations of the majority of the experts in the panel but also those of the APRC Chairman obtained by fusing the proposals in the majority and minority reports of the Experts Committee.

It is also useful to note the basic objectives of Sovereign Socialist Secular Democratic Republic of India indicated in the Preamble to the Constitution. These are to secure to all Indian citizens:

JUSTICE – social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

In a case filed by a citizen against the State of Kerala, the Indian Supreme Court ruled that the Preamble is a part of the Constitution and may be used to interpret ambiguous areas of the Constitution where differing interpretations present themselves. In the original draft only the words ‘Sovereign Democratic Republic’ were used. The two additional words ‘Socialist’ and ‘Secular’ were introduced by the 42nd amendment spearheaded by Prime Minister Indira Gandhi in 1976. The wording of the entire Preamble reveals the fundamental values and guiding principles on which the Constitution of India is based. It serves as a guiding light for the judges to interpret the Constitution as intended originally by the architects, who put the interest of the country above all other narrow interests.

The word ‘socialist’ implies social and economic equality. Social equality means the absence of discrimination on the grounds of caste, colour, creed, sex, religion, or language. Under social equality, everyone has equal status and opportunities. Economic equality means that the government will endeavor to make the distribution of wealth more equal and provide a decent standard of living for all. This is in effect means a commitment towards the formation of a welfare state. Although some progress has been made towards poverty reduction (both in social and economic terms) there is a long way to go for getting any where near the desired goal. The mammoth size of the population itself makes the task difficult. Sri Lanka has no such innate problems except those created by the self-centered political leaders

In the interview Prasad Gunewardene had with DEW Gunesekere, the Minister of Constitutional Affairs and National Integration (Daily News 23 October 2007) the latter lamented, it has not been possible for him to get a consensus on any national issue. When asked about the reason for this problem, he replied: “That is the present day culture in politics. That is the striking difference between Indian leaders and our leaders. There with regard to foreign policy, all leaders arrive at a similar position. They take almost identical positions. For the Indians, country comes first. Here, they change their positions constantly to come to power and to be in power. Therefore, our post-independence history is a history of missed opportunities and lost opportunities.” To put it bluntly, the patriotism of our politicians is superficial. Its relevance is in competitive party politics, particularly when electoral support is needed or as seen now in silencing the voices raised against corruption, human rights violations and other misdeeds.

Ingredients for success

Aung San Suu Kyi, who was (and still is) under house arrest in Rangoon told journalist John Pilger a decade ago: “In Buddhism we are taught there are four basic ingredients for success. The first is the will to want it; then you must have the right kind of attitude; then perseverance; then wisdom” (Newstatesman 8 October 2007). This must be read with the clarification given by her with regard to success from a moral and lasting perspective. She said it is no longer acceptable to resolve (political) problems by military means.

Two striking examples of success and failure are in the outcome of the methods used by Mahatma Gandhi and Adolf Hitler. The former succeeded because he was able to win the hearts of many all over the world. The victors in the last world war also succeeded in winning the hearts of the people in the captured countries. If the success sought by political leaders in Sri Lanka was in creating and sustaining conditions for unity, peace, social, economic and cultural development of the entire nation, adherence to true democratic principles, human rights and equality of all citizens regardless of their ethnic origins, religious beliefs, social conditions and regional identities is imperative.

Obviously, the ingredients for success are still missing in the case of the Sri Lankan party leaders who have been assigned to find jointly a political solution to the national problem. The enormous losses incurred by the country and the unbearable suffering of the people have not influenced their minds. Arrogance, revenge and greed for power continue to influence the decisions of those who believe that success will come by pursuing their disastrous methods even after the whole world has condemned both the goals and the methods used to achieve them.

There should not be any illusion about the end result, if the violence continues in the absence of sincere efforts to seek a political settlement. The Dalai Lama has prophesied: “One may sometimes feel that one can solve a problem quickly with force, but such success is often achieved at the expense of the rights and welfare of others. One problem may have been solved, but the seed of another is planted, thus opening a new chapter in a cycle of violence and counter-violence”.

The immediate challenges

The real problem in Sri Lanka is with the leadership. Not only the lack of will and courage to lead from the front but also playing a negative role in collective decision-making merely to please the Sinhala nationalists is the biggest drawback. The leadership is not brave enough to rise above the chauvinistic forces and convince the people of the need for a pragmatic view on the national issue to settle it permanently for the benefit of future generations by changing the present disastrous system functioning since 1978. Sri Lanka like other countries in the present compact inter-connected world is also facing new global challenges. Despite receiving sizeable foreign aid for development, the economy has not progressed sufficiently to meet all the basic needs of the people. Unemployment and poverty remain major social problems threatening peace and stability. Without political reform, development will be slow and costly process. The Tamils and Muslims are useful assets for developing and sustaining the national economy. To have ignored their aspirations in the political process was a colossal blunder. The prone to commit blunders seems to have increased despite past experiences.

On October 13 Louise Arbour, the UN High Commissioner for Human Rights at the end of her 3-day visit to the conflict-ridden country decried “the weakness of the rule of law and the prevalence of impunity,” and implicitly endorsed the idea of sending a UN rights monitoring mission to Sri Lanka. Subsequently, on October 22 the US urged Colombo to reconsider the offer and accept the UN mission. State Department spokesman Sean McCormack in his statement on this subject said: “An international human rights presence in Sri Lanka would be an important step in improving human rights, accountability, and the rule of law, and ultimately resolving the conflict in Sri Lanka.” This suggestion was also rejected by Sri Lanka on October 24. The fact is human rights violations have been committed by both sides in the gory war and in the absence of any positive sign of early political settlement, the UN and other concerned governments cannot be faulted for assuming that the violations will persist. Past experience shows local monitoring arrangements are in useless. According to Daily Mirror October 26, thirty three community and city based activist organizations have called upon the International Coordinating Committee (ICC) of National Institutions for the Promotion and Protection of Human Rights in Geneva, not to lend credibility and legitimacy to the Human Rights Commission of Sri Lanka (HRCSL). They have said the Sri Lankan HRC has become an institution that has failed to live up to its mandate and has been unwilling and unable to respond to the severe human rights crisis facing the country.

The country is also faced with internal forces within the Sinhala polity that resist political reform and by extension economic reform not realizing the implications to the future well-being of the island nation. It is the dogmatic thinking based on pride and racial prejudice that is behind the resistance. It is not different from that prevailing among the separatists. The challenge is to find a way to overcome both. The Dalai Lama has said: “I am a Buddhist practitioner, but if I mix up my devotion for Buddhism with an attachment to it, my mind will be biased toward it. A biased mind never sees the complete picture and any action that results will not be in tune with reality”. This is the truth and it is not everyone who can grasp its sanctity.

The JVP a close political ally that helped the President to secure many votes of the Sinhala proletariat (the LTTE too helped differently by the enforced boycott of the Presidential election in the North-East) has accused Rajapaksa administration of engaging in a “conspiracy to devolve power to resolve national question”. Its parliamentary group leader Wimal Weerawansa, who is also the General Secretary of Patriotic National Movement (PNM) recently, “warned the government that the public will lose their patience if a devolution package is introduced”. He said the people are not protesting the government’s wrongdoings now as a result of intensifying the conflict against the LTTE”. Paradoxically, the JVP believes in resolving the national question by defeating ‘LTTE terrorism’ militarily.

Neville Ladduwahetty who writes regularly on the national issue, in ‘The Island’ of 11 October 2007 has opined on what he thinks are ‘Forthcoming Constitutional Proposals’. To him the concept of ‘maximum devolution’ is a euphemism for Federalism, an anathema to many Sinhalese. There are some Sinhalese experts who are anxious to equate federalism with separation (this too is synonymous to Tamil domination) and scare the Sinhalese people. He has said that the aspirations of the Sinhalese are significantly different from those of the ethnic minorities, the Tamils and Muslims. Interestingly, this is precisely the argument of the Tamil separatists to divide the island into two independent states! To put it plainly, their contention is the Sinhalese polity will never grant any rights to enable the Tamils to meet their aspirations. He has also said: “The reality however is that even if maximum devolution meets the aspirations of the Sri Lankan Tamils and Muslims, the aspirations of the Sinhalese would be severely challenged because they are extremely circumspect with the very concept of devolution let alone maximum devolution. Notwithstanding the inherent contradictions associated with fulfilling aspirations of all communities, even if the Sinhalese accept the concept of maximum devolution for the sake of resolving the national question, the concept of devolution is of little or no interest to the LTTE”.

Surely the APRC process is not to put together a set of proposals to satisfy the LTTE but to meet the broad objectives mentioned earlier enabling the different communities to meet their aspirations without endangering the unity and territorial integrity of the island nation. This is the real challenge now and to find excuses to dodge it is sheer political cowardice. It is also the responsibility of those who call themselves as national leaders to convince the people of the judiciousness of accepting a reasonable power-sharing arrangement. The consequences of rejection must also be told as the late S. W. R. D. Bandaranaike did when he succumbed to the protests staged by political opportunists and a section of the Buddhist clergy.

The President has to rise above petty party politics and take a constructive stand in the interest of the country, as the national leaders of other democratic countries have successfully taken to secure peace, unity and rising income and significant improvement in the living conditions of all their citizens. The same applies to the Opposition leader, who would have learnt from the damage done to the country in August 2000 when the agreed devolution proposals in the draft Constitutional Amendment Bill were abandoned after the antics performed in the Parliament. The irony is that in the absence of bipartisanship, some of the new actors keen on impressing the public than on solving the national problem are trying to take over the leading role in national politics. Foreign intervention is also resisted for the same reason. The leaders of the two main parties dabbling in power-centered confrontational politics ignoring the future of the country must open their eyes and see the writing on the wall.

[The writer is Former Additional Deputy Secretary to the Treasury, Sri Lanka and UN Advisor, Development Economics/Planning]

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In the Aftermath of the A’Pura Attack

by D.B.S. Jeyaraj

Velupillai Prabakharan the numero uno of the Liberation Tigers of Tamil Eelam (LTTE) is a man with a keen sense of history. When he was a youth dabbling with explosives there was an accident and his legs were charred. Acutely conscious of having blackened legs Prabakharan referred to himself as Karikalan which literally means man with black legs. But the name was chosen due to the LTTE leader’s sense of history too.

[View of Mihintale, from Nuwarawewa Anuradhapura – Photo: Emile Bremmer]

There was a great Chola King who was also called Karikalan. His original name was Thirumavalavan but it was as Karikalan or Karikal Peruvalathan that he was famously known. The Chola King too had had an accident during childhood as a result of which his legs were charred and blackened. That’s why he was called Karikalan. So when Prabakharan’s legs too got burnt he tapped into his historic consciousness and emulated the Chola king in renaming himself.

The organizations he helped found like the Tamil New Tigers or Liberation Tigers of Tamil Eelam revolved around the tiger name . One reason for Prabakharan’s preference for the “puli” or tiger may have been because the “Pulikkodi” or tiger flag was the Chola flag. Technically the Chola emblem was not that of the striped tiger because that feline species was not native to the Tamil realm. The “puli” of the Cholas was the “venkai” or cheetah. Later Prabakharan’s followers were to refer to their leader’s Chola charisma in adulatory discourse.

For all his history, the LTTE leader was quite modern when it came to the existential reality of warfare. He did not seek to revive by gone history but focussed more on the creation of a modern nation state called Tamil Eelam. Instead of harking back to Tamil Kings and chieftains of the Island like Ellalan (Elara) , Sankiliyan, Segarajasegaram, Pararajasegaram, Kulakottan or Pandaravanniyan and naming things after them the LTTE leader opted to honour his fallen comrades.

When it came to naming it was a case of Charles Anthony infantry division, Kittu artillery division, Victor anti – tank division etc and not Ellalan or Sankiliyan. When it came to codenaming military operations the choice was names like Operation Thavalai or frog for an amphibean operation or a operation Ithayabhoomi (heartland) for Weli Oya/ Manal aaru or the series known as “Oyatha Alaigal” (Unceasing waves) .

In that context it was but a remarkable deviation for the LTTE leader to codename his latest operation Ellalan Por nadavadikkai” (Operation Ellalan). Why did he do so? It may have been due to the theatre of combat being Anuradhapura or Anuradhapuram where the “dharmarajah” King Ellalan or Elara reigned for 44 years. Ultimately he was defeated by the Prince from Ruhunu ,Gamini Abhaya known as Dutugemunu.

If the tiger flag was the Eelam counterpoint to the lion in the Sri Lankan flag then the choice of Ellalan is to revive memories of the Elara – Dutugemunu conflict. Though it was a case of a young Sinhala prince trying to oust an old Tamil king and gain power it is often depicted as a Sinhala – Tamil conflict. The fact that Tamils fought on Dutugemunu’s side and Sinhalese fought alongside Elara is ignored or not taken into account.

[King Dutugemunu – Pic: DKC Dedigamuwa]

The historic memory of Dutugemunu lingers powerfully in the Sinhala psyche. Numerous Sinhala males are named Gamini, Gamani, Gemunu and Abhaya. Since he was a son of the Ruhunu the name Rohana is also widely prevalent with even the pseudo – marxist Wijeweera adopting that name.

In recent times another son of the Ruhunu region has become nominal ruler of Sri Lanka. Yet there is a Tamil pocket of resistance in the North. Just as Dutugemunu conquered the east before marching to the North this latter – day Rohana too has taken the east and is setting sights on the North.

In this “Dutugemunu” climate it seems inevitable that the LTTE too should resurrect Ellalan and codename the Anuradhapura operation after the wise and just ruler who was ousted not because he was unjust but due to him being an outsider obstructing the ambition of an indigenous contender.After all Elara was perhaps the only king in our history who comes closest to the concept of “dharmaraja” as envisioned by the Jathika Hela Urumaya.

Code naming the operation after Ellalan strikes a responsive chord in the Tamil psyche. I was interviewed a few days ago by the BBC Tamil service on the Anuradhapura attack and I referred to the Ellalan – Dutugemunu episode in that. The feedback I received suggests that Prabakharan has shrewdly tapped into the historic memory of Sri Lankan Tamils. I do not know what response this will evoke among certain sections of Sinhala society but currently many Tamils are elated.

Historically Elara may have been defeated by Gamani Abhaya but to many Tamils , Ellalan lost in an unfair fight. They perceive single combat between a 78 year old king and 32 year old Prince as being “asymmetric”. Nationalist fervour will not accept historic defeat but will always refuse admittance of reality. The spirit of revolt will always prevail among people unbowed in spirit.

This is why any guerilla movement fighting for the goal of national liberation remains hard to defeat permanently through military means. As RAND corporation expert Brian Jenkins once put it ” A man may outgrow his ideology but cannot disown his race”.It is because of this phenomenon that many advocate a political solution over and above a military solution to nationalist conflicts.

It is perhaps due to this rankling in Tamil collective memory that Prabakharan’s codename “Ellalan” evokes positive response among many Tamils. Anuradhapura being the arena of conflict gives this feeling some relevance. The fact that the LTTE “won” this round gratifies Tamil pride.

Adding to this heady historical mix is the fact that the Airforce base is situated in Saliyapura named after Gamini Abhaya’s son Saliya who was estranged from his father due to his love for Asokamala.

Jumping into this historical fray is the UNP which fast forwards a few centuries and talks of Anuradhapura being militarily attacked for the first time in many years after the Chola invasion.. Hmmm! and it’s not exactly a coincidence that the Sinhala monarch of the day was Mahinda the fifth. Perhaps the President will drop Mahinda and revert to his original name Mahendra. Better still will be his other name Percival.

But this history cannot be confined to the battlefield alone. Gamani Abhaya may have defeated and killed Elara but he was magnanimous in victory to his fallen foe. History records that the victorious king built a tomb in Elara’s honour and decreed that everyone must dismount from horse, elephant, chariot or palanquin and walk when passing that tomb.

This practice soon became a custom and centuries later a Sinhala king fleeing for his life got down from his vehicle and walked in front of Elara’s tomb although his pursuers were close and every minute counted in that race against certain death.

The July 1983 anti – Tamil pogrom was a dark chapter in contemporary history. During those dark days my departed friend and colleague Ajit Samaranayake wrote a brilliantly moving editorial referring to the Elara tomb decree and how it was honoured for generations by the Sinhala people. Two people who were touched by that leader were Maithripala Senanayake and KB Ratnayake.

Maithripala spoke to Ajit directly while KB called him on the phone. They were full of praise. It was not a coincidence that both were great sons of Rajarata. Both were educated in Jaffna . Senanayake at St. Johns and Ratnayake at Hartley. But what really moved them I think was that they were heirs to the Anuradhapura heritage and inherited the Rajarata ethos. Ajit’s references to those sentiments struch a responsive chord in them.

Why do I refer to this? Simply because an incident occurred in the cradle of Sinhala civilisation that was revolting.. The bodies of 20 Black tigers were stripped of clothes during the inquest which is understandable. But what happened later was disgusting. The naked bodies including that of three women were thrown into two tractor-trailers and paraded around the streets of Anuradhapura. Some elements took photos and video filmed it.

That such a travesty of basic decency should occur in the sacred city assaults the mind. Feeble attempts to deny the incident and also apportion blame to the courts are being made. It is indeed sad that some people could not display basic decency towards dead bodies of their foes in a land where a conqueror showed great respect and honour to his fallen rival many years ago.

The souls of Maithiripala and Kiribanda must truly be troubled at this happening in Anuradhapura. Even though some powerful elements got this done the ordinary people were disgusted and repulsed. The pseudo – patriots who did this were clueless about Sinhala society. This is a country where even the “worst” of human beings are not slandered after death.

However much this war has brutalised people society at large has not lost all its values yet. Some people ran and complained to Anuradhapura Catholic Bishop Norbert Andradi who went public condemning the act.The leftist front has also criticised it strongly. The people of Anuradhapura were aghast at this act. I know of people who refused to “view” this spectacle on principle.

All decent human beings regardless of ethnicity were appalled by this incident. But the LTTE and its propagandists exploited the incident crudely at an “ethnic” level . From the English “Tamilnet” to the Tamil “Nitharsanam” the incident was highlighted as an example of the depths of depravity to which Sinhala society had sunk into.

But LTTE supporters conveniently forget what the tigers did to former Tamil National Alliance election candidate Rajan Sathiyamoorthy in Batticaloa. Sathiyamoorthy was linked to Karuna. He and his brother in law were shot dead by the mainstream LTTE while they were worshipping at the shrine in their home. Later Karuna conducted an elaborate funeral ceremony for Sathiyamoorthy and buried him with honours. The tigers dig up the body and threw it elsewhere after setting fire. It was in a half-burnt state.

There is however a point in the LTTE claim that they cremate bodies of soldiers with full military honours. The LTTE also returns bodies of soldiers through the Red Cross in a respectful manner. The LTTE bodies could have been covered in non-transparent body bags at least. Displaying the bodies was a violation of Geneva conventions as well as basic humanitarian norms.

While criticising those who exhibited the naked bodies some of the pro-tiger websites shamelessly flaunted pictures of the very same bodies under the guise of condemnation.Some Tamils egged on by the tiger and pro-tiger elements are rushing to accuse the Anuradhapura Sinhalese in particular and the Sinhala people in general. Two things must be noted here. One is that this was not an act of the people . This was done by some persons wielding power and authority. Sinhala society at large is revolted by this act.

The other is that self – righteous Tamils cannot forget what the tigers did in Anuradhapura on May 14th 1985. The sanctity of the sacred city was shattered when the LTTE went on the rampage then. It was a despicable act but there was a prominent Tamil editor who called it an assault on the Sinhala psyche.

But most Tamils were horrified. The poet Ilavalai Vijayendran spoke up for conscience stricken Tamils when he wrote “Intha kaigalai Entha Gangaiyil kaluvuvathu” (In which Ganges shall we wash these hands?)

It is certainly true that this “exhibition” incident has to be condemned but at the same time one cannot subscribe to this “holier than thou” trend of condemning a whole people for the action of some members of its society. If a people are to be condemned wholesale for the acts of some of its members then the Tamils too have to be condemned for incidents like the Dalada Maligawa attack, Kattankudi and Eravoor mosque massacres or the eviction of Muslims from the North.

The Anuradhapura air base attack victory is being utilised by the LTTE to whip up a jingoistic mood among Tamils particularly the Diaspora. The Rajapakse regime was doing this among Sinhala people for a long time. Now it is the turn of Velupillai Prabakharan. Two wrongs do not make a right.

All visions of a military victory are illusions. Be it either side military success can only be ephemeral. War will beget only more war. Violence will bring about more violence. The problems faced by ordinary Tamils cannot be resolved by notching up sucessful guerilla strikes alone. The Tamil national question can be solved only through a political settlement. Such a settlement cannot be enforced through war.

Right-thinking Sinhala people found themselves marginalised when Rajapakse’s military juggernaut was rolling on successfully. Those who spoke of a political solution were viciously attacked and vilified as traitors and tiger agents. Sinhala supremacist ideology ruled the roost.

The wheel is slowly turning now. It is true that the war-mongering Rajapakse regime has been given a hard knock but it would be futile to think war by itself is a solution or that war can provide a solution.

Unwarranted euphoria is being whipped up among the Tamils now.This is widely prevalent among the Tamil Diaspora. Martial songs of the LTTE are being regularly heard on Tamil radios. Also emotion rousing Tamil film songs are being requested by many listeners.

[Leopard in Yala National Park – Pic: by Ranil Amarasuriya]

In “Tamil Canada” the current favourite is from the film “Anbutholi”. Its sung by Manikkavinayagam and the opening lines are “Siruthaiyai Seendathedaa, Sirunarigal Thaangathada” (Dont taunt the leopard, you small jackals cant withstand ).

In such an atmosphere any condemnation of the war and a call for peaceful resolution must necessarily jar on war mongering ears. However the dismissal of the idea of war as a solution must be accepted whole heartedly and sincerely.

There must be a principled approach. One cannot call for peace when the other side is seen as winning and praise war when one’s own side is perceived as succeeding.War cannot be an answer to the problems facing Tamils in particular and Sri Lanka in general.

A photograph of Prabakharan with the 21 black tigers who died in Anuradhapura is being widely circulated. It is being widely hailed as the high watermark of the LTTE’s military prowess.

As for me I feel very sorry for those young men and women though I commend their courage, dedication and self – sacrifice.

But the sight of a plump Prabakharan posing for the camera with those sacrificial lambs is for me the low watermark of Sri Lankan Tamil society.

Related: Anatomy of Tiger Assault on Anuradhapura Air Force Base

DBS Jeyaraj appreciates your responses on the federal idea.

DBS Jeyaraj can be contacted on: djeyaraj@federalidea.com

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