By Neville Ladduwahetty Courtesy The Island

A statement issued by the Foreign Ministry reported in The Island of Oct 27, 2017 states: “What this means is that the new government of Sri Lanka pledged to reassert lost sovereignty by taking ownership of processes that were in the international domain by bringing them to the local domain, and that the government of Sri Lanka as a Sovereign state that is responsible for all its citizens, and responsible to uphold the rule of law, democracy, and justice, would take responsibility for credible investigations locally …. As promised to the people by the 100-Day Programme (point 93), the National Unity Government proceeded to present its own set of national proposals for a transitional justice process … engaging in arguments and debates in the international domain over the number of civilians who may have died at a particular time in the country, will not help resolve any issues in a meaningful manner…”

Notwithstanding the above statement by the Foreign Ministry, the Sri Lankan delegation to Geneva has “recently reaffirmed the Govt.’s commitment to implementing the UNHRC Resolution 30/1 (Oct. 2015) which calls for the setting up of a War Crimes Tribunal with the participation of foreign judges, defense lawyers, prosecutors and investigators …” (The Island editorial November 17, 2017).

In view of these vastly contradictory statements coming from the Foreign Ministry, the country is at a loss to understand the true commitment of the government; is it for a “credible investigation locally”, or is it “for setting up of a War Crimes Tribunal with the participation of foreign judges etc.”? In this regard it is pertinent to recall that the Prime Minister has already warned that any process that involves the “participation” of foreign judges etc. would amount to a constitutional amendment which will have to be ratified by Parliament with a 2/3 majority and approved by people at a referendum. This means that the commitment given in Geneva by the Sri Lankan delegation cannot be met since the government would not resort to any measures to change the constitution merely in order to accommodate provisions in the 30/1 UNHRC resolution.

Whether Geneva would view the undertaking given by Sri Lanka, notwithstanding the associated constitutional constraints, as an attempt to trivialize the whole issue is not evident at this time. However, the comment by the UN High Commissioner that if matters are not addressed with the seriousness it deserves, the UNHRC would be compelled to explore measures such as universal jurisdiction should be treated as an indication of future possibilities. This means that consequences for inconsistency and commitment to undertakings that the government has no intention of fulfilling could result in dire consequences.

RELEVANCE of NUMBERS

Ever since the claim of 40,000 civilian deaths was in the UN Secretary General’s Panel of Experts or Darusman report, successive governments and committed individuals have gone to great lengths to refute that number. The latest to do so is Lord Naseby of the UK. His statement to the House of Lords reflects the sheer injustice that Sri Lanka has had to face because of unsubstantiated and baseless numbers concocted to satisfy politically driven agendas, and also his untiring compulsion to find the truth as to what really happened.

It is the combination of these two factors that has driven Lord Naseby to go to the lengths that he has done. During his address to the House of Lords, he stated:

“I have discovered an unpublished report from the United Nations country team, which stated that from August 2008 up to May 2009, the number of civilians killed was 7,721. The war ended six days later, so it cannot possibly have got up to 40,000. Then I looked at what Gordon Weiss, the former UN spokesman said. He produced an estimate in 2009 of 7,000 civilian deaths. He also made the simple observation that, for the Sri Lankan army, it made no tactical sense to kill civilians. University Teachers for Human Rights…commented that from what happened it could not say that the purpose of bombing or shelling by government forces was to kill civilians. It also said that ground troops took great trouble not to harm civilians… US Ambassador Blake stated on 7 April that there were deaths of 4,164 from January to 6 April. Major General Holmes in his expert military report of March 2015 concurs with 7,000 to 8,000. Above all, all the people I have cited stated that there was no policy to kill civilians – in fact the opposite…”.

Attempts by Lord Naseby to gain access to the dispatches of the British Defence Attaché, Lieutenant Colonel Anton Gash from the UK Foreign and Commonwealth Office, failed. Appeals to higher authorities at the Foreign Office were rejected. Following these failures appeals to the Information Commissioner resulted in yielding a total of 39 highly redacted dispatches.

One of the revelations in these dispatches is that “It is not possible to distinguish from LTTE cadres as few are in uniform”. Similar admissions are there in the OISL report of the Office of the UN High Commission as well as in the Darusman report. Consequently, all reports admit that it is not possible to establish the number of civilian deaths. Since the context in which such an evaluation should be made is international humanitarian law as admitted in the reports of Darusman and OISL and more recently by Lord Naseby, under what grounds could it be established that breaches of humanitarian law amounting to war crimes or crimes against humanity were committed during the armed conflict that ended in May 2009? Furthermore, considering the difficulties encountered by Lord Naseby during his efforts to get at the truth, one could be certain that the UK government would not share information that would help to establish the truth as to what really happened.

NATIONAL INDEPENDENT JUDICIAL MECHANISM

Since Sri Lanka is not in a position to “to establish a judicial mechanism” in keeping with the provisions of UNHRC Resolution 30/1 due to constitutional constraints, the only option for Sri Lanka is to establish a “national independent judicial mechanism” within the context of international humanitarian law. Even if such an exercise is undertaken with all the seriousness and commitment that Sri Lanka could muster, the work of such a mechanism would be seriously handicapped and severely limited in scope, because most of the “evidence” would not be made available officially to a national judicial mechanism; a fact that was starkly evident from Lord Naseby’s experience to gather evidence together with the evidence that is currently held by the UN and its agencies.

Under such circumstances, how credible would be the outcome of a national judicial mechanism? And if it is not credible, what material purpose would it serve considering that charges of any alleged violations of humanitarian law would be based on partial evidence without the opportunity to challenge its authenticity? Consequently, the majority of the inquiries by a national judicial mechanism would clearly be inconclusive. Therefore, no material purpose would be served by any judicial mechanisms that are forced to function outside norms of natural justice, other than to retain the label of “alleged violations” indefinitely. Therefore, the government has to revisit the commitment made by the President in his 100 Day Programme for a national inquiry, and whether it would lead to any positive outcomes – and, if it does not, what next?

TRANSITIONAL JUSTICE PROCESSES

Perhaps the government realizes the intractable nature of the issues involved in respect of alleged violations of international humanitarian law. This realization has caused the government to shift its focus to issues relating to “transitional justice”. Consequently, the focus is on transitional justice mechanisms such as establishing an Office of Missing Persons, Truth Seeking Commissions, Reparations, etc. etc.

Commenting on the current situation the Secretary General of the Secretariat for Coordinating Reconciliation Mechanisms, Mr. Mano Tittawala stated: “Having now studied other transitional justice experiences in post-conflict settings, we know how complex and difficult such processes are, and we are aware that no country has operationalized four mechanisms in a two-year time frame. Perhaps our original time-frames were too ambitious but our objectives, and our commitment, remain unchanged, and our determination is strong and firm because we fully realize the importance of these processes for sustainable peace and reconciliation…” (Nation, November 26, 2017).

Despite these well intentioned approaches, these mechanisms are bound to experience similar obstacles and challenges as they would with regard to “national mechanisms” relating to alleged violations. For instance, take the case of the Office of Missing Persons. Everyone is aware of the hundreds of thousands of so-called “missing persons” who are currently living in foreign countries under altered identities. These countries have refused to share information regarding such persons living in their countries for reasons of their personal security. Consequently, it would be extremely difficult to establish whether such persons are actually “missing”, or are living under assumed names, but they would continue to be considered “missing” as far as the family and relatives are concerned. These imponderables are bound to affect reparations.

However committed the efforts of the government may be, the hard question that needs to be answered is whether the twin tracks pursued by government such as a national mechanism to address alleged violations of humanitarian law, and transitional justice mechanisms to foster reconciliation by this route would address the national question. The answer would be a resounding “No”. And if it does not address the national question, does it make sense to continue on a trajectory that is far removed from what the government set out to deliver – an answer to the first cause, namely, the National Question?

Whether one believes that such a question exists or not is not the issue, the fact is that such a question does exist as far as the Tamil community is concerned, and cannot be wished away.

THE NATIONAL QUESTION

The government is committed to undertake constitutional reforms of a form and nature that would address the national question. For the Tamil community this means maximum devolution. To the rest of the country this spells separation and division of their beloved country. The question of reconciling these competing demands is compounded by the structure at the center, because center-periphery relations are dependent on whether the system at the center is presidential or parliamentary. However, the structure at the center is not an abstract issue. It is directly and intrinsically linked with the personal ambitions of politicians in respect of their political survival as to which system at the center would serve their interests best. Consequently, the national question gets wrapped up in a web of complexities where devolution is not seen from a conceptual perspective of sharing power, but one aimed at surviving within the larger perspective of personal and national politics. This is the context in which the national question needs to be addressed.

The SLFP whose head is President Sirisena, has informed the Steering Committee for constitutional reform that it wishes to retain the presidential system in addition to several other key features of a unitary state. The principle feature of the presidential system is separation of power. This means that the President is responsible for all executive actions. It also means that the Governor would be the Agent of the President responsible for executive action as provided currently under the 13th Amendment. This would not amount to the “maximum devolution” called for by its proponents. Instead, what is expected by maximum devolution is for executive and legislative functions to be devolved to the provinces. This is one aspect of what is proposed for center-periphery relations. There is considerable opposition to maximum devolution as well as to other related proposals. Overall, the prospect of going beyond the 13th Amendment is very remote. If maximum devolution will not be possible , what other prospects are there for resolving the national question?

If the 13th Amendment is the outermost limit of what is possible, and if territorially based devolution to the degree aspired to by the Tamil community is not acceptable as the only means of sharing power, what other alternatives are available? There are proposals for a Second Chamber to enable regional representation at the center. However, this would amount to sharing only legislative power at the center. Why is it not possible to consider a constitutionally provided arrangement for legislative and executive power to be shared at the center among the three major communities in the ratio of their representation in parliament? Such proposals were incorporated in Chapter III of “Sri Lanka’s National Question” , by Ladduwahetty, N., 2010 (ISBN 978-955-665-106-5). A similar proposal was made recently by Dr. Nihal Jayawickrama in an article titled “Constitutional Reform” (The Island, November 20, 2017).

CENTRAL POWER SHARING

Considering the growing resistance to halt the constitutional reform process currently underway, there is a strong possibility that any reforms would not see the light of day because they would be either defeated in parliament, or defeated at a referendum by the people. While either outcome would be a serious disappointment to proponents of maximum devolution, the stark fact that is emerging is a resistance to the concept of territorially based devolution beyond the 13th Amendment . What has to be considered, therefore , is whether there are OTHER means of power sharing.

The lesson Sri Lanka would be compelled to learn following the likely disappointment with its attempt at maximum devolution, is that attention needs to be paid to other forms of sharing power. One such form is the sharing of legislative and executive power among the three major communities, both in parliament and in the cabinet. By way of suggestion, the existing Sectoral Committees of parliament should be expanded in scope to be responsible not only for legislation relating to their spheres of influence, but also responsible for monitoring executive action relating to these same spheres. The composition of such committees should be on the ratio of government in power to opposition in parliament, with the chairperson and the deputy of such committees being assigned to opposition members of the three communities in ratio to their representation in parliament. Furthermore, their status should be elevated to that of Cabinet Ministers and Deputy Ministers in respect of perks and privileges. The cabinet should be structured on a similar basis. The sharing of legislative and executive power among the three major communities is an arrangement that has thus far not been explored. The inclusiveness of such an arrangement would foster far greater cohesion among communities than the approaches currently being pursued.

This aspect of unifying culturally divergent communities through structural arrangements was highlighted by Robert Dahl, Sterling Professor of Political Science Emeritus at Yale University, in his statement: “… countries such as Switzerland, Belgium, and the Netherlands are stable because each created political arrangements that required unanimity or broad consensus for decisions made by the cabinet and the parliament. The principle of majority rule yielded (in varying degrees) to a principle of unanimity. Thus any government decision that would significantly affect the interests of one or more of the subcultures would be made only with the explicit agreement of the representatives of that group in the cabinet and parliament”.

The twin approaches currently pursued by the government, of a national mechanism to address alleged violations of humanitarian law and transitional justice to promote reconciliation would leave the all important national question unattended. The hopes of those addressing the national question through maximum devolution are likely to fail because of the current mood in country. Since this mood is not likely to change, Sri Lanka would be compelled to explore alternative approaches to power sharing instead of stubbornly pursuing devolution beyond the existing 13th Amendment.

Such an alternative should be central power sharing where legislative and executive powers of the people are shared constitutionally by the three major communities, in proportion to their representation in parliament. Since it is through structural arrangements at the center that foster inclusion that culturally divergent societies could hope to overcome the phobia of majority rule, Sri Lanka should give serious consideration to such alternative approaches. Therefore, instead of waiting until the current approaches fail, a committed member of parliament should initiate a motion in Parliament, recommending the appointment of a multi-party parliamentary group to explore structural arrangements at the center as the solution to Sri Lanka’s national question.

Concluded