War Criminal Gets a UN Job

by Brad Hamilton, New York Post, November 21, 2010

Shavendra Silva’s 58th division was one of the Sri Lanka Army (SLA) divisions that had been the longest embedded division in prosecuting the final war. Starting in September 2007 in Silavaturai in the western coast, Silva’s division was instrumental in displacing civilians from the western shores to the eastern killing fields in Mullaitivu in Jan 2009, according timeline published in Sri Lanka Government controlled Daily News.

A suspected war criminal who allegedly played a key role in the slaughter of 40,000 civilians in Sri Lanka has landed a cushy job at the United Nations — with full diplomatic immunity.

Human-rights groups are outraged that Shavendra Silva, 46, a top ex-military commander, was named Sri Lanka’s deputy permanent UN representative in August, after which he moved to New York.

His arrival came a year after his troops defied international pleas and shelled a no-fire zone packed with women, children and elderly refugees, according to observers.

Silva also stands accused of mowing down a group of separatist political leaders who agreed to surrender and were waving white flags when they were shot.

DIPLOMANIAC: Ex-Sri Lanka commander Shavendra Silva is suspected of war atrocities, but a current UN gig gives him immunity.AFP/Getty Images DIPLOMANIAC: Ex-Sri Lanka commander Shavendra Silva is suspected of war atrocities, but a current UN gig gives him immunity.

“It’s a slap in the face,” said an investigator familiar with Silva, who last year oversaw the final months of a brutal 26-year civil war against Tamil separatists on the island nation off India’s southeastern tip.

The war started in 1983 after the Tamils, a Hindu ethnic minority, were denied power by the ruling Sinhalese, Buddhists, and formed a violent resistance group, the Tamil Tigers.

“Thousands were killed or starved. There were massive human-rights violations and he’s the No. 1 suspect,” said the investigator, a human-rights group expert who asked not to be identified.

“And they send this guy here? There’s no one other than him in the mission who was involved in this.”

Silva claims 11,000 friends on Facebook. The barrel-chested former major general also maintains his own site, shavendrasilva.com, filled with photos of himself in combat garb and a list of his battlefield successes.

He works from an office at the Sri Lankan mission on Third Avenue.

Read more: http://www.nypost.com/p/news/local/manhattan/war_criminal_gets_un_job_6ujUFMXYR2NhlrrxF3euZJ#ixzz16PB21OqQ

 

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UN post confers no absolute immunity from war crimes prosecution

[TamilNet, Friday, 26 November 2010, 00:04 GMT]
Under the terms of the United Nations Charter, UN Officials only have “functional” immunity, immunity ratione materiae which confers immunities on those performing acts of state (duties). War crimes, crimes against humanity, and genocide are not incidental to the duties of a UN accredited diplomat, and therefore, Shavendra Silva, Sri Lanka’s official at the UN in New York, can be prosecuted under the 18 USC 2441 of US criminal code for allegedly committing war crimes outside the US. Legal sources also said that the UN Headquarters Agreement on UN officials’ Privileges and Immunities concluded with respect to the UN Charter arguably confers functional immunity only as well.

Shavendra Silva, alleged War Criminal holding UN postShavendra Silva, alleged War Criminal holding UN post A spokesperson for Tamils Against Genocide (TAG), a US-based activist group, told TamilNet, “the Charter of United Nations, Article 105, and the US’s Headquarters Agreement, Article 5, Section 15(4) clearly state UN officials enjoy only “privileges and immunities as are necessary for the fulfilment of its purposes,” and do not have full diplomatic immunity that applies to diplomats accredited to and by the States.

“However, criminal action in the US legal system can only be brought by the US Justice Department. Therefore, Tamils in US should promptly initiate efforts to persuade, either or both, the War Crimes office of the State Department, and Congresspersons interested in Sri Lanka affairs to begin investigations towards bringing criminal action against Mr Silva,” TAG added.

“Bringing civil suit through affected plaintiffs with valid standing under the ATCA (Alien Tort Claims Act) is another legal avenue to pursue. With the backing of several prominent NGOs, a legal advocacy group such as Center for Constitutional Rights (CCR) would be a suitable place to start. The State Department then has the option to decide whether to enter the case with a Suggestion of Immunity on his behalf,” TAG further said.

In 1987, the U.S. State Department was also involved in efforts to put former U.N. Secretary General Kurt Waldheim on the “watch list” in order to bar his entry into the United States on the alleged grounds that he might have been an accomplice to the commission of war crimes during the Second World War. The U.S. Department of Justice so barred Waldheim as of April 27, 1987.

“The evidence collected . . . establishes a prima facie case that Kurt Waldheim assisted or otherwise participated in the persecution of persons because of race, religion, national origin or political opinion,” Justice Department spokesman said in a statement as reported in Los Angeles Times on the same day.

Shavendra Silva’s 58th division was one of the Sri Lanka Army (SLA) divisions that had been the longest embedded division in prosecuting the final war. Starting in September 2007 in Silavaturai in the western coast, Silva’s division was instrumental in displacing civilians from the western shores to the eastern killing fields in Mullaitivu in Jan 2009, according timeline published in Sri Lanka Government controlled Daily News.

Professor Boyle said Israel adopted similar tactics Sri Lanka’s in appointing Brigadier General Amos Yaron, who had alleged complicity in the Sabra and Shatila camp massacre in September 1982, to Military Attache post in U.S. and Canada. While Canada refused Yaron’s appointment, U.S. due to intense lobbying by Arab-Americans, held up the appointment for three months before accepting Yaron’s credentials.

“Full Diplomatic Immunity applies to diplomats accredited to and by States. That is why I lost the Yaron case. Even though he had committed genocide, war crimes and crimes against humanity. I argued against that too. But the judge ruled that she was bound by the State Department determination,” Professor Boyle said of his legal action against Yaron.

Relevant parts of the statutes that provide the background to the article follow:

Charter of the United Nations…Article 105

    • The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.

 

    Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.

United States Headquarters Agreement

    • Article V – Resident Representatives to the United Nations

 

    • Section 15

 

    (4) …Member concerned, shall, whether residing inside or outside the headquarters district, be entitled in the territory of the United States to the same privileges and immunities, subject to corresponding conditions and obligations, as it accords to diplomatic envoys accredited to it.

18 U.S.C. § 2441

    • (a) Offense. – Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

 

    (b) Circumstances. – The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).

 

Joint Human Rights Letter to LLRC

by Amnesty International, Human Rights Watch, International Crisis Group, October 14, 2010

Today Sri Lanka has no credible domestic mechanisms able to respond effectively to serious human rights violations.

S.M. Samarakoon
Secretary
Commission of Inquiry on Lessons Learnt and Reconciliation

Dear Mr. Samarakoon,

Thank you for inviting Amnesty International, Human Rights Watch and the International Crisis Group to appear before Sri Lanka’s Lessons Learnt and Reconciliation Commission (LLRC). As the invitation notes, we all closely follow developments in Sri Lanka, and we remain committed to helping the Sri Lankan people find a just and peaceful way forward from the decades of civil war and violence they have suffered.

Unfortunately, we are compelled to decline the Commission’s invitation. While we would welcome the opportunity to appear before a genuine, credible effort to pursue accountability and reconciliation in Sri Lanka, the LLRC falls far short of such an effort. It not only fails to meet basic international standards for independent and impartial inquiries, but it is proceeding against a backdrop of government failure to address impunity and continuing human rights abuses.

Our three organizations believe that the persistence of these and other destructive trends indicates that currently Sri Lanka’s government and justice system cannot or will not uphold the rule of law and respect basic rights. As you will be aware, we have highlighted our concerns in a number of reports. Of particular relevance are Crisis Group’s May 2010 report War Crimes in Sri Lanka and its June 2009 report Sri Lanka’s Judiciary: Politicised Courts, Compromised Rights; Human Rights Watch’s February 2010 report Legal Limbo: The Uncertain Fate of Detained LTTE Suspects in Sri Lanka and its February 2009 report War on the Displaced: Sri Lankan Army and LTTE Abuses against Civilians in the Vanni; and Amnesty International’s June 2009 report Twenty Years of Make Believe: Sri Lanka’s Commissions of Inquiry and its August 2009 Unlock the Camps in Sri Lanka: Safety and Dignity for the Displaced Now. These and other relevant publications are included in the attached list and are available on our websites www.crisisgroup.org, www.hrw.org, and www.amnesty.org. Unfortunately, Sri Lanka has made no progress since the end of the war in addressing our concerns detailed in these reports.

In addition to these broader failings of the government, we believe that the LLRC is deeply flawed in structure and practice. Of particular concern are the following:

Inadequate mandate

Nothing in the LLRC’s mandate requires it to investigate the many credible allegations that both the government security forces and the Liberation Tigers of Tamil Eelam (LTTE) committed serious violations of international humanitarian and human rights law during the civil war, especially in the final months, including summary executions, torture, attacks on civilians and civilian objects, and other war crimes. The need to investigate them thoroughly and impartially is especially urgent given the government’s efforts to promote its methods of warfare abroad as being protective of the civilian population, when the facts demonstrate otherwise.

Nor has the LLRC shown any genuine interest in investigating such allegations. Instead, it has allowed government officials to repeat unchallenged what they have been saying without basis for months: that the government strictly followed a “zero civilian casualty policy”. Indeed, during the testimony of Defence Secretary Gotabaya Rajapaksa on 17 August 2010, the primary intervention of the Commission chairman, C.R. de Silva, was to prompt the secretary to provide the Commission with a 14 February 2009 letter from the International Committee of the Red Cross (ICRC) thanking the Navy for assisting in a medical evacuation. While highlighting that one letter, the chairman and his colleagues failed to ask the defence secretary about any of the ICRC’s numerous public statements between January and the end of May 2009 raising concerns about excessive civilian casualties, violations of international humanitarian law and insufficient humanitarian access.

The Commission also has not required officials to explain the government’s public misrepresentations during the war. Particularly disturbing are the government’s repeated claims that there were under 100,000 civilians left in the Vanni at the beginning of 2009 when officials later conceded there were some 300,000, and that Sri Lankan forces were not using heavy weapons in civilian areas when the military eventually admitted they were.

Lack of independence

A fundamental requirement for any commission of this type is that its members are independent. The membership of the LLRC is far from that. To start, both the chairman C.R. de Silva and member H.M.G.S. Palihakkara were senior government representatives during the final year of the war. They publicly defended the conduct of the government and military against allegations of war crimes. Indeed during two widely reported incidents – the shelling of the first “no-fire zone” declared by the government in late January and the shelling of Puthukkudiyiruppu (PTK) hospital in February – H.M.G.S. Palihakkara, then Sri Lanka’s representative to the UN, told CNN that government forces had confirmed that even though the LTTE was firing out from the “no-fire zone”, the government was not returning fire; and that the military had confirmed they knew the coordinates of PTK hospital and they had not fired on it.(1)

Beyond his public defense of government conduct during the war, there is also evidence that as attorney general, C.R. de Silva actively undermined the independence of the 2006-2009 Presidential Commission of Inquiry that was tasked with investigating allegations of serious human rights violations by the security forces. Mr. de Silva’s conflicts of interest were repeatedly criticized by the International Independent Group of Eminent Persons (IIGEP), which had been invited by the President to oversee the Commission’s work. The members of the IIGEP resigned in April 2008 and cited Mr. de Silva’s conflicts of interest as a major reason for doing so. Most other members of the LLRC have some history of working for the Sri Lankan government. None is known for taking independent political positions, and many have publicly declared their allegiance to the President and government.(2)

Lack of witness protection

Equally worrying is the absence of any provisions for the protection of witnesses who may wish to testify before the Commission. Sri Lanka has never had a functioning witness protection system, nor has the Commission established any ad hoc procedures for witness protection. The lack of witness protection is particularly crippling in the current atmosphere in Sri Lanka in which government officials label as “traitors” persons making allegations that government forces might have committed violations of international law. Only a brave few have testified before the LLRC about war crimes in the north despite that threat. Moreover, even though the war is over, the country is still operating under a state of emergency, with laws that criminalize political speech and where there is no meaningful investigation of attacks on government critics. This clearly undermines the Commission’s ability to conduct credible investigations of alleged violations of international or national law. Until effective protection of witnesses can be guaranteed, no organization or individual can responsibly disclose confidential information to the Commission.

Past commission failures

Our decision to decline the LLRC’s invitation to testify also stems from Sri Lanka’s long history of failed and politicized commissions of inquiry. Amnesty International’s report, Twenty Years of Make-Believe: Sri Lanka’s Commissions of Inquiry, documents the failure of successive Sri Lankan governments to provide accountability for violations, including enforced disappearances, unlawful killings, and torture. The most recent instance is the work of the 2006-2009 Commission of Inquiry into 16 cases of serious human rights violations by both the government security forces and the LTTE. Even with broad international support and technical assistance from the IIGEP, the Commission investigated only a handful of cases, failed to protect witnesses from harassment by security personnel, and produced no evidence that led to more effective police investigations. The final report of this Commission is said to have been given to President Rajapaksa and remains unpublished.

Today Sri Lanka has no credible domestic mechanisms able to respond effectively to serious human rights violations. The Sri Lankan Human Rights Commission lacks independence and has itself acknowledged its lack of capacity to deal with investigations into enforced disappearances. At the international level, Sri Lanka has 5,749 outstanding cases being reviewed by the UN Working Group on Enforced and Involuntary Disappearances, several hundred of which have been reported since the beginning of 2006.

In the current context of human rights violations in Sri Lanka, even an independent and fully empowered commission would face grave difficulties in pursuing accountability or contributing to lasting reconciliation. Even though the war is over, a state of emergency continues to be in place. Anti-terrorism laws and emergency regulations grant extraordinary and arbitrary powers to the military and police and continue to be used to target critics of the government. Tamils in the north are living under a heavy military presence.

Impunity remains the order of the day: there have been no prosecutions in any of Sri Lanka’s well-documented cases of human rights violations from 2005 onwards, and media personnel and human rights activists continue to report harassment and threats by persons linked to the government. In addition, the recent passage of the 18th Amendment further empowers the presidency and effectively removes any remaining independence of commissions on human rights, elections, the judiciary and other issues. Without positive change in these areas, it is hard to see how even the best-intentioned commission of inquiry could make any meaningful contribution to accountability and reconciliation.

Should a genuine and credible process eventually be established – featuring truly independent commission members, effective powers of witness protection, and a mandate to explore the full range of alleged violations of national and international law; and backed up by government action to end impunity and ensure that police and courts launch effective and impartial prosecutions – we all would be pleased to appear.

Yours sincerely,

Louise Arbour
President and CEO
International Crisis Group

Kenneth Roth
Executive Director
Human Rights Watch

Salil Shetty
Secretary General
Amnesty International

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Publications on Sri Lanka by the International Crisis Group, Amnesty International and Human Rights Watch

International Crisis Group (available at www.crisisgroup.org )

Reports

War Crimes in Sri Lanka , Asia Report N°191, 17 May 2010

The Sri Lankan Tamil Diaspora after the LTTE , Asia Report Nº186, 23 Feb 2010

Sri Lanka : A Bitter Peace, Asia Briefing N°99, 11 Jan 2010

Sri Lanka’s Judiciary: Politicised Courts, Compromised Rights , Asia Report N°172, 30 Jun 2009

Development Assistance and Conflict in Sri Lanka: Lessons from the Eastern Province , Asia Report N°165, 16 Apr 2009

Sri Lanka’s Eastern Province: Land, Development, Conflict , Asia Report N°159, 15 Oct 2008

Sri Lanka’s Return to War: Limiting the Damage , Asia Report N°146, 20 Feb 2008

Sri Lanka : Sinhala Nationalism and the Elusive Southern Consensus, Asia Report N°141, 7 Nov 2007

Sri Lanka’s Human Rights Crisis , Asia Report N°135, 14 Jun 2007

Sri Lanka’s Muslims: Caught in the Crossfire , Asia Report N°134, 29 May 2007

Sri Lanka : The Failure of the Peace Process, Asia Report N°124, 28 Nov 2006

Conflict Risk Alert

Conflict Risk Alert: Sri Lanka , 9 March 2009

Commentary

Sri Lanka still demands justice , Louise Arbour, GlobalPost, 8 Jun 2010

Sri Lanka’s Choice, and the World’s Responsibility , Chris Patten, International Herald Tribune, 13 Jan 2010

War Without End , Robert Templer, International Herald Tribune, 21 Jul 2009

Day of Reckoning in Sri Lanka , Robert Templer, Foreign Policy, 21 April 2009

A Slaughter Waiting to Happen , Lakhdar Brahimi, International Herald Tribune, 20 March 2009

Amnesty International (available at www.amnesty.org )

Sri Lanka : Statements by detained doctors underline need for independent inquiry, 9 July 2009, ASA 37/015/2009

Open Letter to the UN Security Council on the situation in Sri Lanka, 2 June 2009, IOR 40/005/2009

Sri Lanka : Twenty years of make-believe. Sri Lanka’s Commissions of Inquiry, 11 Jun 2009, Report ASA 37/005/2009

Sri Lanka : Unlock the Camps in Sri Lanka: Safety and dignity for the displaced now – a briefing paper, 10 Aug 2009, Report ASA 37/016/2009

Sri Lanka: Submission to the UN Universal Periodic Review: Second session of the UPR Working Group, 5-16 May 2008, 8 Feb 2008, Report ASA 37/003/2008

Sri Lanka : Silencing dissent, 7 Feb 2008, Report ASA 37/001/2008

Sri Lanka : Observations on a Proposed Commission of Inquiry and International Independent Group of Eminent Persons, 17 Nov 2006, Report ASA 37/030/2006

Sri Lanka : Establishing a commission of inquiry into serious violations of human rights law and international humanitarian law in Sri Lanka: Amnesty International’s recommendations, 13 Sep 2006, Report ASA 37/031/2006

Sri Lanka : A Climate of Fear in the East, 3 Feb 2006, Report ASA 37/001/2006

Human Rights Watch (available at www.hrw.org )

Reports

Legal Limbo: The Uncertain Fate of Detained LTTE Suspects in Sri Lanka, February 2, 2010

War on the Displaced: Sri Lankan Army and LTTE Abuses against Civilians in the Vanni, February 20, 2009

Besieged, Displaced, and Detained: The Plight of Civilians in Sri Lanka’s Vanni Region, December 23, 2008

Trapped and Mistreated: LTTE Abuses against Civilians in the Vanni, December 15, 2008

Recurring Nightmare: State Responsibility for “Disappearances” and Abductions in Sri Lanka, March 5, 2008

Press Releases/Op-eds

Sri Lanka is still denying civilian deaths, Sep 5, 2010

Sri Lanka : US Report Shows No Progress on Accountability, Aug 11, 2010

Sri Lanka : Protests Against UN Echo Anti-Justice Campaign, Jul 11, 2010

Sri Lanka : New Panel Doesn’t Satisfy US Concerns, May 27, 2010

Sri Lanka : New Evidence of Wartime Abuses, May 20, 2010

Sri Lanka : Government Proposal Won’t Address War Crimes, May 7, 2010

Sri Lanka’s war: time for accountability, Apr 28, 2010

Sri Lanka : President’s New Term Time for Accountability, Jan 27, 2010

Uncovering Sri Lanka’s war crimes, Jan 21, 2010

Sri Lanka : Domestic Inquiry into Abuses a Smokescreen, Oct 27, 2009

(1) “Sri Lanka’s U.N. ambassador discusses what the government is doing to protect civilians in the war zone in Sri Lanka”, CNN, 3 February 2009 at www.cnn.com/video/#/video/world/2009/02/03/stout.sri.lanka.war.zone.cnn?iref=videosearch.

(2) For instance, in presenting the annual memorial oration for President Rajapaksa’s father in November 2009, Commission member Professor Karunaratne Hangawatte said about the President: “It is no secret that the national and international community stands in gratitude and salutes Your Excellency for your unwavering leadership, our defense leaders and personnel for their enormous sacrifices”. He also called on “every peace loving Sri Lankan [to] bond together with the Government”. See www.dailynews.lk/2009/11/13/fea01.asp. Similarly, reportedly “[i]nspired by the historic victory of President Mahinda Rajapaksa against terrorism”, recently deceased Commission member M.T.M. Jiffry painted a “larger-than-life portrait” of the President after the end of the war, described as “perhaps, the most sincere tribute to President Rajapaksa from an Artist”. See www.sundayobserver.lk/2009/06/21/spe01.asp.

Fonseka, Democratisation and the White Man’s Burden

by Dr S Sathananthan, November 1, 2010

What Ceylonese politicians learnt at the feet of their colonial masters is how to execute racist authoritarian rule behind facades of democracy lubricated by the vacuous rhetoric of liberalism…

The true choice is between the anti-democratic forces the two demons represent on the one hand and, on the other hand, a credible democracy movement, which must not be a focus-less agitation for vague rights. On the contrary, it should be a single-issue struggle with the concrete, focussed aim to reduce the concentration of central State powers in Colombo. As always, the tantalising question is: who will bell the cat?

The activists, groups and political parties protesting the conviction and incarceration of Sinhalese former Chief of Army Sarath Fonseka have reincarnated him as a ‘political prisoner’, a victim, they say, of almost unspeakable injustice and deserves to be exonerated. Many are backing Fonseka against President Mahinda Rajapakse as a pragmatic choice of the lesser of two ‘demons’. Either way, they claim to be defending citizen Fonseka’s fundamental rights and condemn the alleged a miscarriage of justice.

A Sinhalese activist underlined why Fonseka’s rights must be defended by quoting Thomas Paine: ‘He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach himself’ (Dissertations of First Principles of Government). She asserted, as a matter of principle, ‘ignoring the plight of Prisoner No. 0/22032 is a non-option’ and unequivocally declared: ‘the law must prevail’.

There is a political dimension. They are booming ‘war hero’ Fonseka as the democratic alternative to mobilise public opinion against President Rajapakse’s autocratic rule. Championing Fonseka, they hope, could be a short-cut to realising their hopes of ‘restoring democracy’.

But Fonseka was a part of the ruling cabal that made certain the law did not prevail for others. As Chief of Army, he had presided over the unprecedented genocidal slaughter of Tamils in the Vanni in 2008/09. Under his command the army allegedly committed war crimes: it deployed banned weapons – fuel air explosives (FAEs), cluster bombs and/or phosphorus munitions – against civilians, inflicted widespread torture, enforced disappearances, operated motorcycle death squads and, by his own admission, executed surrendees of the Liberation Tigers of Tamil Eelam (LTTE).

Have the ‘free-Fonseka’ activists evaluated the odious role of Fonseka – who joined the army in 1970 – in the blood-soaked history of Tamils?

Indeed do they know whether or not he is complicit in the butchery of Sinhalese during the Jathika Vimukthi Peramuna’s (JVP) second uprising (1987-89) or in the murder of numerous Sinhalese journalists (2006-09) including Lasantha Wickrematunga? The activists’ unwise choice has irretrievably compromised their political credibility and fatally undermined the prospects for ensuring justice and accountability.

Nevertheless, if Fonseka is rescued, what comes next? Do his saviours intend to put him on trial for alleged war crimes or cynically sweep them under the rug in the name of democracy to promote his political challenge to Rajapakse? If the latter, what is the moral logic of the ‘free-Fonseka’ campaign? If he were elected President, would his rule be qualitatively better than Rajapakse’s? Most unlikely. On what pragmatic grounds, then, is he the lesser evil?

Desperately clutching at every political straw to arrest the dizzying slide into autocracy is understandable. But Fonseka is a false choice; backing him is an illusory short-cut. The regime’s chosen agent of death cannot be a constructive alternative. Predictably, there are precious few takers.

The uncomfortable truth is that most Sinhalese do not see Fonseka’s plight as a departure from the long-established national norm. For them, it is entirely consonant with the culture of injustice sanctified by practice and cheerfully endorsed by civil society against Ceylon Tamils, Muslims, and Up-Country Tamils. They had sanguinely watched their oligarchy, led by DS Sananayake, heartlessly pluck the fundamental rights of citizenship and franchise from defenceless Up-Country Tamils on the eve of Independence (1948); and they hypnotically followed the oligarchy’s other Sinhalese Pied Piper, SWRD Bandaranaike, who violated Tamils’ fundamental language rights in 1956. The law did not prevail.

The oligarchy, by its sheer lawlessness, vaccinated the Sinhalese people against rule of law. The rulers organised and executed with utter impunity several anti-Tamil pogroms from 1956 to 1983 with the connivance and participation of the Sinhalese bureaucracy and armed forces (including the police). Their sense of justice has been blunted by the oligarchy’s ‘patriotic’ State terror let loose by the military in the north from 1961 (a decade and half before the LTTE emerged as the dialectical, violent response) and later in the east. Indeed, hardly anyone in the south shed tears over the ethnocide of Tamils epitomised by the deliberate burning of the Jaffna Public Library in 1981, supervised by two Sinhalese Ministers of the regime, and the grotesque Chemmani mass graves under Gen Fonseka’s watch.

So far the scale of blatant impunity staggers the mind. Not one civilian or politician, not one military or police personnel has been convicted for the countless murders, rapes, arson, disappearances, war crimes and mass graves brazenly inflicted upon Tamils over several decades. (The conviction of a lowly army corporal for raping Krishanthi Kumaraswamy and murdering her and three others is the solitary exception that confirms the rule.)

Those who ‘discovered’ impunity during Eelam War IV (2006 – 2009) are strongly advised to read post-Independence Tamil history.

Tamils anticipated the south’s descent into autocracy and worse. From the 1950s Tamils warned Sinhalese civil society that defiling the rights of one community and regularising the rape of rule of law through Acts of parliament are setting up dangerous authoritarian precedents that entrench and legitimise injustice. Echoing Thomas Paine’s dictum, Tamils also emphasised the oligarchy will manipulate precedents and exploit impunity to target other communities and, in the fullness of time, the Sinhalese too. Sinhalese ideologues and intelligentsia peremptorily dismissed the warning as a Tamils’ plot to pit the people against the beloved leaders!

In short the law has not prevailed for Tamils as a people in independent Ceylon/Sri Lanka. Civil society, under the diabolical pretext of ‘uniting the country’, has by and large condoned with equanimity the systematic and sustained violence Tamils have suffered. The crass duplicity of killing-to-unite is indescribable!

The consequences are profound. The ubiquitous and unbridled anti-Tamil mayhem systematically brutalised the Sinhalese, a transformation not dissimilar to how Gen Zia ul Haq’s public floggings and executions corroded the values of a generation of Pakistanis. In Sri Lanka the atrocities have thoroughly acclimatised the Sinhalese polity to what Basil Fernando condemned as ‘abysmal lawlessness’, in which, argued James Yap & Craig Scott, law has swiftly ceased to be a reference and therefore legal redress is the stuff of fairy tale. Today, the decree by the ruler, laced with ‘patriotism’ and rubber stamped by an impotent legislature, IS the law. He or she defines what is black and what is white!

Not surprisingly, most Sinhalese possess an apparently feeble grasp of the relevance of challenging lawlessness. Political consciousness does not fall through the roof. Sinhalese civil society should have assiduously and painfully build it brick by fundamental-rights brick by organising and leading popular opposition to the oligarchy’s any and every transgression, through public meetings, street protests and, if necessary, courting arrest, and thereby rooted constructive dissent as an unshakable political culture.

Instead civil society activists gave carte blanche to the regime to jackboot over human and fundamental rights in name of ‘economic development’ or ‘combating terrorism’. They have bought into the belief that lawlessness – ‘Let the robber barons come’, as JR Jayawardene had put it – is a necessary ingredient of economic growth and prosperity.

It is no surprise that the perfunctory agitation in support of Fonseka by political parties opposed to the regime has evoked at best lukewarm interest. It is an almost pathological condition, eloquently captured by the title of the Civil Rights Movement’s critique of the 18th Amendment: ‘Rise Silent Majority, Rise Now or Sleep Forever’. The odds favour blissful, undisturbed sleep.

Tamils, too, do not see the connection between the ‘free-Fonseka’ campaign and democratisation for a different reason. For them, the country’s political problem is rooted in the inherited colonial structures that were not been reformed and indeed have been reinforced in the period after Independence.

Primarily to reform the colonial institutions and practices, Tamils launched in the 1950s the first and only non-violent pro-democracy movement. They proposed federalism to mimic the essentials of the Indian model of linguistic states that re-structured the inherited colonial State and set that country on the path to democracy; Tamils struggled for similar constitutional reforms to disperse power to future Tamil and Sinhalese linguistic states, re-structure the colonial State bequeathed in its monstrous totality to Ceylon’s oligarchy and to build an inclusive, participatory democratic system of government.

Sinhalese civil society lurched in the opposite direction. It irrationally and unrealistically equated the oligarchy’s centralised power in Colombo to the mirage of democratic governance and fobbed off Tamils’ demands for State re-structuring with the liberal shibboleth of equality among individuals as citizens. Drunk with power and unwilling to relax its grip, the oligarchy haughtily dismissed the federal initiative and justified the perfidious action by darkly accusing Tamils of plotting to ‘divide the country’. And civil society went along with the chauvinist drift and jettisoned the first opportunity offered by Tamils to re-distribute power and promote democracy.

Without a doubt all those individuals and parties that obstinately rejected federalism fatally undermined the attempt to democratise the inherited colonial State.

Neither the theocratic 1972 Constitution nor the authoritarian concentration of power in the 1978 Constitution would have seen the light of day under the checks and balances of a federal system.

The Sinhalese rulers have done worse than British colonialists. After Independence, the oligarchy continued to amass more and more power in the executive of the inherited and unreformed colonial State through frequent and prolonged Emergency Rule, by creating a presidential system, vastly empowering an Executive Presidency and enacting draconian national security laws. The list is virtually endless. The 18th Amendment is the high water mark in this unremitting concentration of executive power from1948 to the present. The proposed Local Authorities Elections (Amendment) Bill 2010 further intensifies the centralisation while pretending to promote ‘representative democracy’.

Tamils tried once more, this time through armed resistance sacrificing their blood, to structurally reform the handed-down, second-hand, moth-eaten colonial State. The LTTE-led Tamil national movement’s demand for an independent Tamil Eelam galvanised almost three generations of Tamils. While independence was the avenue of last resort, it was primarily a cry for change; that is evident from the alacrity with which in December 1994 the LTTE offered to drop the Tamil Eelam demand in return for a `substantial [devolution] package’; and again agreed to ‘explore a federal alternative’ at the 2002 Oslo Talks that compelled then Prime Minister Ranil Wickremasinghe to follow suit.

In an almost Pavlovian response, civil society fell back on the mindset that despised federalism. Sinhalese questioned yhe LTTE’s ‘sincerity’ rather than put it to the test. They pilloried Wickremasinghe for ‘caving in’ to the LTTE; he fell back on sophistry, retorting he merely accepted to ‘explore’, not the alternative per se. They patriotically endorsed the regime’s denigration of Tamils’ struggle for State-reform as ‘separatism’ and condoned the regime’s blatant violations of the Constitution and international humanitarian laws to crush ‘terrorism’. In this way, civil society once again helped the oligarchy to reinforce its centralised archaic colonial powers, bury the prospects for structural democratisation and, tragically for the country, nurtured tyranny. The catastrophic consequences for the whole country are unfolding with chilling efficiency.

While Sinhalese ideologues continue to berate LTTE’s ‘barbarism’, those Tamils who had condemned the Organisation are veering round to the conclusion that its armed resistance and methods are justified by the regime’s barbaric butchery of Tamils in the Vanni and in the light of its treacheries after May 18.

But philistines allege Ceylon has been a ‘vibrant democracy’ from the time of Independence. They are petty retailers of the racist ‘theory’ of the White Man’s Burden, that British colonialists tutored the Ceylonese in modernity and democracy, that ‘they’ civilised ‘us’. These dilatants delude themselves that the First Parliament of independent Ceylon was inundated with British-trained ‘democrats’!

It is bizarre because colonial rule is the very opposite and cruel negation of democracy. The process of colonialism – unfolding before our eyes in Iraq and Afghanistan – is first, military conquest to unseat nationalist rulers under one pretext or another; second, pacification of restive populations; and third, select native satraps and henchmen who help in the pacification and through whom the colonialists rule. Invariably the second and third phases parallel and reinforce each other and constitute indirect colonial rule. The occupying US military held so-called ‘elections’ under its watchful eye and manipulative control and engineered the collaborators’ ‘victory’ in the caricature of a legislature in the two countries.  The ruling satraps are propped up by mercenary forces trained by the coloniser’s armies.

In colonial Ceylon, universal franchise, state council, senate, courts of law and so on are instruments the colonialists imposed to co-opt and rule through native collaborators. The real power, of course, lay in the British-created, British-trained and British-controlled executive (civil and military).

The principal task of the supine collaborators who populated the State Council and Senate was to sell, for their own survival too, the lie of democracy to the hapless population. They paraded the array of empty trappings – constitution, legislature, parties, elections, etc – that resemble facades on a movie set, which, thanks to the participation of the short-sighted and opportunistic Left, acquired a veneer of credibility that the British exploited to the hilt to titillate and mesmerise the polity.

But the trappings remained facades with no democratic content because they were not and are not products of or rooted in a culture of democracy, which is non-existent in the country. The call for restoring democracy is populist deception; one cannot restore that which did not exist in the first place!

What Ceylonese politicians learnt at the feet of their colonial masters is how to execute racist authoritarian rule behind facades of democracy lubricated by the vacuous rhetoric of liberalism.

After Independence, the larger Sinhalese faction of the oligarchy quickly marginalised the rest citing majority rule. It has relentlessly strengthened the executive to further entrench centralised authoritarian rule, laced with the potent supremacist ideology of majoritarian Sinhalese-Buddhism papered over with patriotism.

In stark contrast, India built democracy after Independence. Linguistic federal states twinned with secularism are the primary motive forces and the process is continuing with the creation of three new ones – Chhattisgarh, Uttaranchal and Jharkhand – in the year 2000, with all states incrementally extracting greater autonomy from the Centre. Telangana is on the anvil. Whether the process will become flexible enough to accommodate aspirations of Kashmir and the North East peoples, remains to be seen.

That Sri Lanka was and still is a ‘vibrant democracy’ is a Goebbelsian Lie, the Big Lie that comprador elements repeatedly assert evidently following Goebbels’ advice: ‘the most brilliant propagandist technique will yield no success unless one fundamental principle is borne in mind constantly – it must confine itself to a few points and repeat them over and over.’ So they make a fetish of parliament and elections to play, like children, make believe democracy; they point out all democracies transfer power through elections and exhort people to believe that Sri Lanka is a democracy because it holds elections; rather like claiming since all dogs have four legs, every animal with four legs is a dog!

Without a doubt in the interstices of authoritarianism a few seedlings of future democratic practice sprouted, such as some radical trade unions, a few moderately independent media institutions and a minuscule critical intelligentsia.  The regime encouraged them since they confer a democratic veneer but they soon outlived their decorative function. The system will not defend an individual or institution beyond the convenience of those who wield power; and the regime evidently took heed of Goebbels’ warning: it is ‘vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State’. So it acted swiftly to crush genuine unions, whip media to heel and silence detractors.

As ‘democracy’ is becoming less ‘vibrant’, charlatans singing for their supper are shifting tracks to pedal ‘national democracy’, whatever that means, which the President-turned-political-Santa Claus is supposed to shower upon the people out of goodness of heart. The less said the better about this ghastly gibberish.

To repeat, colonialism is utterly incapable of imparting the principles of democratic governance. After Independence, the essence of the semi-feudal oligarchy’s so-called ‘parliamentary politics’ was dynastic competition for power through their respective fiefdoms (parties) and hangers-on at the national and local levels. That fringe groups and interests took the opportunities to form political parties changes nothing; nor does it herald a ‘multi-party democracy’.

The culture of democracy does not fall from the sky. Nor do rulers grant democracy and weaken their own power merely because people ask. Everywhere and always in history democracy has been the product of relentless political battles over generations in which people clawed out their democratic rights, invariably making historic sacrifices. They learned and internalised the inalienable, non-negotiable Rights of Man in the crucible of struggle and committed to defend them against all-comers; that is the culture of democracy.

In Ceylon/Sri Lanka, the Sinhalese did not pursue a sustained struggle for democracy. Indeed they sabotaged Tamils’ two movements for democratisation and blissfully condoned the regime’s ‘patriotic violation’ of fundamental rights.  The reactionary JVP has sought, through its insurrections, to capture, preserve and rule through the authoritarian State.

In short, there was and still is an utter absence of a culture of democracy. Therefore, true democratic institutions and practices did not and cannot take root; what passes for them are deceptive, cruel political facades propped up by the State’s armed forces.

What next? The choice is not between two demons. Introducing checks and balances piece-meal and legal safeguards for individual and human rights are mirages under the current near-dictatorial conditions. The true choice is between the anti-democratic forces the two demons represent on the one hand and, on the other hand, a credible democracy movement, which must not be a focus-less agitation for vague rights. On the contrary, it should be a single-issue struggle with the concrete, focussed aim to reduce the concentration of central State powers in Colombo. As always, the tantalising question is: who will bell the cat?