Paradise Lost? by V. Gunaratnam

agical names that once stirred the imagination, Pearl of the Orient, Teardrop of the Indian Ocean, Taprobane, Resplendent Isle, and Serendib, redolent of the lingering sun and emerald waters, lush tea gardens and aromatic spices, sparkling gems and intricate crafts, domed dagobas and towering temples, now conjure up nothing but a tarnished image of a paradise lost, a country torn by the blood and tears of a people struggling for freedom, and endlessly frustrated by the machinations of politicians.

The curse of the Bandaranayakes is again on us as CBK derails a peace process that had been going well up to now. Dissolving parliament and decreeing elections brought peace talks to a screeching halt, making a mockery of the unequivocal international legitimacy the talks had won, and depriving the Tamil homeland of funds for reconstruction.

CBK

Iraq & Sri Lanka: Compared, Contrasted by Wakeley Paul

IRAQ AND SRI LANKA: COMPARED, CONTRASTED AND ANALOGIZED

Bernard Lewis, the scholar of Islam, wraps his political opinions on Iraq, in a historical blanket. They have never had a democratic tradition, he argues, therefore democracy will be an ill advised imposition of a political system upon a people who know nothing about it. It could equally well be noted, however, that neither the people of Ceylon or India or any of the British colonies, knew anything about democracy, till long after the British had infused the concept into their psyche. However, while most former Asian Colonies of Britain do have an ostensible democratic tradition which was foisted upon them, most African nations have descended from democracies to barbarous dictatorships. So where does Iraq stand today? Can it absorb democracy or not, and what again does democracy mean to them?

The fundamental problem that Iraq is faced with is not whether it prefers the autocratic rule of the mullahs and ayatollahs over democracy. The problem they face is what type of democracy will fit their situation. There are three distinct groups whose aspirations have to be satisfied. The biggest conflict, however, is between the Kurds and the majority Shiites, like it is between the Tamils and the majority Sinhalese in Sri Lanka. The Kurds, like the Tamils, are a regional majority and a national minority. The same is true of the Sunnis as well.

The recently failed agreement [now to be signed without amendment], failed not because of the commitment to democratic rule, which all groups hailed, but as one Kurd leader put it, “The fear that the majority Shihites intended to curb the Kurds of their autonomy,” an autonomy they have enjoyed for the past 13 years. Ambassador Bremer, the American coalition Administrator of Iraq, expressed this important concern from a broader perspective when he said, “Democracy is not only about majority rule, it is also for the protection of the minorities.”

The second half of the definition of democracy is an aspect of democracy that the Shihites preferred to disregard. This is also an aspect of Democracy that eludes the mindset of the average Sinhala Buddhist in Sri Lanka. They are oblivious to the fact that democracy, which honors majority rule, also opposes the tyranny of the majority over the minority. To them, Democracy is just one without the other. As an astute friend of mine pointed out, there lies a significant difference between our situation and that of Iraq.

Iraq has a superpower to twist the arms of the recalcitrant majority, who insist on majority rule without obligations to the minorities. They have a superpower at their elbow to compel the majority to accept what may be unpalatable to them, namely the obligation to honor minority interests. In Sri Lanka, luckily, we lack that force. We have a situation where the only superpower is totally in favor of our reaching a peace agreement; but does so from afar. We have foreign intermediaries monitoring peace negotiations who lack the clout that the coalition has in Iraq.

Viewing the problem from this perspective, the question we must ask is, “What was the objection to the Agreement being signed in Iraq?” It was not over the role of Islam in the Constitution; it was not over the increased influence of women under the Constitution; it was the objection of 5 Shiite leaders to the veto clause reserved to the Kurds to void the Agreement if it did not satisfy Kurdish aspirations. The clause that was objected to by the Shiite leaders was the one which said that, even if the Agreement was approved by a majority of all the Iraqis, it could be voided if 2/3 in 3 of the 18 provinces rejected it. The central issue then, just like in Sri Lanka, is granting unto the Kurdish minority a satisfactory degree of autonomy, free of majority Shiite domination. The 5 Shiites, who have now withdrawn their objection, wanted majority rule to prevail without any concession to minority concerns. This is the underlying problem in Sri Lanka as well.

A glaring contrast between their situation and ours is that the majority of each of the rival groups in Iraq are Muslims, resulting in their jointly demanding an Islamic Constitution. The Americans have peppered the interim constitution with civil rights and obligations. We, on the other hand, seek a secular Constitution because the religious differences between the two main ethnic groups have been the basis for racial discrimination. They are bonded by a common god; we are divided by separate faiths. They have civil rights drilled into their Constitution by a superpower, while we have no superpower to pepper the them into our Constitution for us.

Credit must be given to the coalition for recognizing the problems faced by minorities who are regional majorities in a democracy, which the British failed to acknowledge or recognize when granting Ceylon independence. The problem was not because the Tamil leaders were all Colombo residents. The problem was with the British, who prided themselves with the delusion that they had united a previously divided set of separate and distinct nations and turned them into into a single, coherent, well managed and manageable whole. It was the Tamil leaders resident in Colombo who first demanded, through Mr G.G. Ponnambalam, 50/50 representation if the island was to remain unified; it was a Tamil resident in Colombo, Mr S J V Chevanayakam, who spearheaded the demand for a Federal Constitution; it was Tamils in Colombo who propagated the concept of separation. They were first Mr C.Sunderalingam and much later Mr Chelvanayakam. They led and engineered each and every growing Tamil demand of the Tamil people from Colombo, where they lived at that time.

It was the British, conversely, who were obsessed with what they perceived as their great accomplishment of uniting 3 separate and distinct entities into one, a unification that has triggered the nation’s ethnic crisis. While being guilty of this monumental error , the British did not, however, ignore the communal and religious tensions and antagonisms that existed in the country. They therefore included Section 29[2] in the Constitution granting the country independence, which made it a condition to the grant of independence that the ruling majority in the Parliament was obligated to recognize and honor the equal rights of all communities and religions in the island. It forbade forever any legislation that violated this fundamental human right, by making any such legislation not only void; but legislation that Parliament had no power or authority to make. They added that this was an entrenched provision of the Constitution that could never be revoked. Bribery Commissioner v Ranasinghe [1964] 2 All England Reports 78

Despite these very salutary precautions to prevent the national minorities from being discriminated against, it did not take long for the Sinhalese majority governments to discriminate openly and brazenly, without any concern or fear of the consequences. By a succession of illegal maneuvers, they created a constitution which honored and legalized discrimination and got away with it Did the British intervene? Of course not.

This is where Mr Lewis’s being haunted by a ghost from the Islamic past comes into being. Will the majority Shiite elements tolerate the minority Kurdish quest for sovereignty for all time? Will the majority resist the temptation to override the Agreements reached today [March 8 2004] and exercise their majority rule with the same dictatorial vigor as they have in Sri Lanka, sometime in the future?

Once the superpower and its allies are satisfied that they have concluded their obligations to the Iraqi people; once they have gone and are forgotten as an invading force; is there any reason for the Shiites to fear superpower intervention if they violate the terms of the Agreement of March 8, 2004? Is there anything to prevent that majority from vitiating the Agreement to enable them to dominate the Kurds on Shiite terms? By then, the U.S could well have washed its hands off Iraq. By then, the American mood could have shifted from intervention to non intervention. The mood could shift gears and wish to treat this whole episode as a forgotten, far off memory. What will probably result is an armed conflict twixt Kurds and Shiites with the Sunnis watching and waiting with glee; and the turmoil of the region will raise clouds of dust once again. They will wind up being in the same position as we are in now, if not in an even more acute situation than we are in at present. In the end, the superpower presence may amount to nought. In the end, we may have been better off without it. In the end, we may be advancing towards a more secure future dominated by a quest for rehabilitation rather than war; while they are enveloped by the clouds of an armed conflict. In the end, we could wind up having the same gloomy future that they are destined to endure, with or without superpower intervention now, or in the future.

Amnesty’s Concerns re Sri Lanka

TO: Ambassador Devinda Subasinghe, Embassy of Sri Lanka

FROM: Jim McDonald, Sri Lanka Country Specialist, Amnesty International USA

RE: UN Human Rights Committee’s concluding observations

DATE: February 24, 2004

On December 1 of last year, the U.N. Human Rights Committee issued its concluding observations (the “Observations”) on Sri Lanka’s fourth and fifth periodic reports under the International Covenant on Civil and Political Rights. The Observations can be found at http://www.unhchr.ch/html/menu2/6/hrc/hrcs77.htm#79th

Sections 9, 10 and 13 of the Observations read as follows:

“9. The Committee remains concerned about persistent reports of torture and cruel, inhuman or degrading treatment or punishment of detainees by law enforcement officials and members of the armed forces, and that the restrictive definition of torture in the 1994 Convention against Torture Act continues to raise problems in the light of article 7 of the Covenant. It regrets that the majority of prosecutions initiated against police officers or members of the armed forces on charges of abduction and unlawful confinement, as well as on charges of torture, have been inconclusive due to lack of satisfactory evidence and unavailability of witnesses, despite a number of acknowledged instances of abduction and/or unlawful confinement and/or torture, and only very few police or army officers have been found guilty and punished.

The Committee also notes with concern reports that victims of human rights violations feel intimidated from bringing complaints or have been subjected to intimidation and/or threats, thereby discouraging them from pursuing appropriate avenues to obtain an effective remedy (art. 2 of the Covenant).

The State party should adopt legislative and other measures to prevent such violations, in keeping with articles 2, 7 and 9 of the Covenant, and ensure effective enforcement of the legislation. It should ensure in particular that allegations of crimes committed by State security forces, especially allegations of torture, abduction and illegal confinement, are investigated promptly and effectively with a view to prosecuting perpetrators. The National Police Commission complaints procedure should be implemented as soon as possible. The authorities should diligently enquire into all cases of suspected intimidation of witnesses and establish a witness protection program in order to put an end to the climate of fear that plagues the investigation and prosecution of such cases The capacity of the National Human Rights Commission to investigate and prosecute alleged human rights violations should be strengthened.

10. The Committee is concerned about the large number of enforced or involuntary disappearances of persons during the time of the armed conflict, and particularly about the State party’s inability to identify, or inaction in identifying those responsible and to bring them to justice. This situation, taken together with the reluctance of victims to file or pursue complaints (see para. 9 above), creates an environment that is conducive to a culture of impunity.

The State party is urged to implement fully the right to life and physical integrity of all persons (arts. 6, 7, 9 and 10, in particular) and give effect to the relevant recommendations made by the United Nations Commission on Human Rights’ Working Group on Enforced or Involuntary Disappearances and by the Presidential Commissions for Investigation into Enforced or Involuntary Disappearances. The National Human Rights Commission should be allocated sufficient resources to monitor the investigation and prosecution of all cases of disappearances.” ……

“13. The Committee is concerned that the Prevention of Terrorism Act (PTA) remains in force and that several of its provisions are incompatible with the Covenant (arts. 4, 9 and 14). The Committee welcomes the decision of the Government, consistent with the Ceasefire Agreement of February 2002, not to apply the provisions of the PTA and to ensure that normal procedures for arrest, detention and investigation prescribed by the Criminal Procedure Code are followed. The Committee is also concerned that the continued existence of the PTA allows arrest without a warrant and permits detention for an initial period of 72 hours without the person being produced before the court (sect. 7), and thereafter for up to 18 months on the basis of an administrative order issued by the Minister of Defence (sect. 9). There is no legal obligation on the State to inform the detainee of the reasons for the arrest; moreover, the lawfulness of a detention order issued by the Minister of Defense cannot be challenged in court.

The PTA also eliminates the power of the judge to order bail or impose a suspended sentence, and places the burden of proof on the accused that a confession was obtained under duress. The Committee is concerned that such provisions, incompatible with the Covenant, still remain legally enforceable, and that it is envisaged that they might also be incorporated into the Prevention of Organized Crimes Bill 2003.

The State party is urged to ensure that all legislation and other measure enacted taken to fight terrorism are compatible with the provisions of the Covenant. The provisions of the Prevention of Terrorism Act designed to fight terrorism should not be incorporated into the draft Prevention of Organized Crime Bill to the extent that they are incompatible with the Covenant.”

I would appreciate learning what steps the Government of Sri Lanka is taking to implement the recommendations of the Human Rights Committee made in the Observations, including particularly the recommendations in Sections 9, 10 and 13 above. On behalf of Amnesty International, I would strongly urge the Sri Lankan government to implement the recommendations contained in Sections 9, 10 and 13 as soon as possible.

Thank you for your consideration. I plan to make this message available to interested persons and organizations one week from today.

…………..

AMNESTY INTERNATIONAL PRESS RELEASE

AI Index: ASA 37/001/2004 (Public) News Service No: 046 27 February 2004

Sri Lanka: Put human rights first during the elections

In the run up to parliamentary elections called for 2 April, Amnesty International is urging political parties and the Liberation Tigers of Tamil Eelam (LTTE) to instruct their members not to assassinate political opponents or their supporters, or carry out other violent attacks on party activists and election monitors during the election period.

“We are also appealing to all parties contesting the elections to put human rights at the heart of their agenda,” said Amnesty International. “Their manifestos must make clear their specific commitment to undertaking constitutional and legal reforms that will ensure protection and promotion of human rights, ending impunity and ratifying international human rights and humanitarian standards.”

“The potential for serious and widespread human rights abuses during the campaigning period is now a major concern,” said Amnesty International.

There are already reports of over 100 election related incidents of violence, including 40 party activists who have been injured in clashes in southern and north-central regions, after the close of nominations three days ago. Four people were also allegedly abducted by the LTTE in the east since the elections were announced.

During the last election called in December 2001, 47 murders of political party members by their opponents and attacks on election monitors were reported.

“We are particularly concerned that candidates and supporters of Tamil political parties not allied to the Tamil National Alliance (TNA) – which the LTTE is backing in the elections — may become targets for assassination,” said the organization. These include candidates of the Tamil United Liberation Front (TULF) standing as independents, the Eelam People’s Democratic Party (EPDP), the Eelam People’s Revolutionary Liberation Front (EPRLF) (V), and the Democratic People’s Liberation Front (DPLF).

The LTTE are suspected to be behind the assassination and attempted assassination of over 50 members of Tamil political groups and several Muslim civilians since the cease-fire came into force in February 2002.

“We welcome the assurance given by the LTTE military leader, Colonel Karuna, at a meeting with Major General (retd) Trond Furuhovde, head of the Sri Lanka Monitoring Mission (SLMM), on 11 February in Batticaloa, that the LTTE would continue to respect the cease-fire and would not resort to violence or interfere in elections in the east,” said Amnesty International.

“In view of the vacuum in the provision of law and order in the northeast until agreed interim administration arrangements are established, we are appealing to the government and the LTTE to ensure the right to freedom of movement and right to freedom of assembly and association in areas under their control during the election period.”

Amnesty International also called on the government to investigate and punish anyone involved in attacks on political party members contesting the elections and election observers, especially among their own supporters.

Background Norwegian-led peace negotiations between the government and representatives of the LTTE stalled in April 2003. On 4 November 2003, President Chandrika Kumaratunga Bandaranaike suspended parliament for two weeks and took over control of the Ministries of Defence, Interior and Mass Communications. Prime Minister Ranil Wickremesinghe declared that without control of the defence forces he could no longer be responsible for continuing the peace process.

On 20 January 2004 President Kumaratunga signed an agreement of cooperation between the main constituent of the People’s Alliance (PA), the Sri Lanka Freedom Party (SLFP) and the Janata Vimukthi Peramuna (JVP; People’s Liberation Front) to form the United People’s Freedom Alliance (UPFA). Four more parties have since joined the UPFA including the Muslim National Unity Alliance (NUA), the Mahajana Eksath Peramuna (MEP; People’s United Front), the Communist Party of Sri Lanka (CPLS) and the Lanka Sama Samaja Party (LSSP; Lanka Equal Society Party).

The JVP is opposed to the devolution of power to the LTTE and strongly supports a unitary state. It is said to be opposed to the terms of the cease-fire agreement and third party facilitation in the peace process.

On 7 February the President dissolved parliament and called parliamentary elections, four years ahead of schedule. This was followed on 11 February, by the dismissal by the President of all 27 non-cabinet ministers and 12 deputy ministers, from the government. Two new ministers of Information and Mass Communication have since been appointed.

Concerns have been expressed about the failure to establish an independent Election Commission, provided for by the Seventeenth Amendment to the Constitution which came into force on 3 October 2001, to oversee the electoral process.

The Commissioner of Elections recently announced that polling booths in areas held by the LTTE would not be allowed and that polling stations would be clustered in places controlled by the Sri Lanka armed forces. Observers have recommended that national and international election monitors are on the ground throughout the month leading up to the election and that freedom of movement for voters going to polling stations should be ensured around election day.

Public Document

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For more information please call Amnesty International’s press office in London, UK, on +44 20 7413 5566 Amnesty International, 1 Easton St., London WC1X 0DW.

For more information on Amnesty’s concerns in Sri Lanka, please visit http://www.amnesty.org or http://www.amnestyusa.org.