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Monday, December 4, 2023

The LLRC Report: Foundation for a new beginning in 2012?

Rajan Philips –  By a curious coincidence, the LLRC Report was tabled in parliament and released electronically on 16 December 2011, the 40th anniversary of the end of the war of liberation of Bangladesh. Sri Lanka’s war started and ended quite differently, even though the birth of Bangladesh in 1971, after nine months of violent labour and India’s caesarian intervention, was a powerful demonstrational impetus to the movement for Tamil Eelam.
The LTTE that usurped the Eelam movement and devoured Tamil politics is now gone, gone much more violently than it arrived. The defeat of the LTTE has not ended Sri Lanka’s predicaments. The government is unable to shake off calls to account for what happened during the war and to demonstrate what it will do after the war. The LLRC Report can be the foundation for positive actions that are long overdue after the war. The next steps in 2012 are the responsibility of the Rajapaksa government and no one else’s.

Forty years after its liberation, Bangladesh is still struggling with the legacies of its war of liberation while confronting current and future challenges. How long will Sri Lanka take to fully recover from the war? How willing is the government to use the LLRC Report and its recommendations as the basis for a new beginning? What should be the approach taken by the TNA in its dealings with the government in light of the LLRC recommendations? How will other stakeholders and concerned parties, direct and indirect, local as well as foreign, react and respond to the LLRC findings and recommendations?

The LLRC Report is not a perfect document, but it is much less imperfect than it could have been. To their credit, the Commissioners have crafted a report that the government could not dump the way it dumped all the other reports that it had commissioned earlier. For the same reason, the Commissioners could not have produced a report to satisfy all the requirements of the government’s external detractors. So the report is balanced by getting it half right and half wrong.

One thing the Commissioners got right is the advice that by implementing its recommendations, the government could avoid the incessant calls for international investigation of the final stages of the war. In fact, it is the only way to deflect, if not avoid, calls for international investigation. Put another way, it is also by implementing the LLRC’s recommendations that the government can ward off criticisms of the weaknesses of the LLRC Report. The recommendations are the strength of the report. The weakness is in its omissions.

Achilles’ heel
 A balanced response to the report’s imbalance came from the US State Department, urging “the Sri Lankan Government not only to fulfill all of the recommendations of the report as it stands, but also to address those issues that the report did not cover.” The recommendations of the report are what the LLRC has got right and has won almost universal plaudits, including those of the Global Tamil Forum in London. The “issues that the report did not cover” are the issues regarding accountability over “allegations of serious human rights violations during the final phase of the conflict.”

Accountability is the Achilles’ heel of the government and of the LLRC Report. Kumar David (Sunday Island, 25 December 2011), putting polemics aside and wielding his professorial pen, has exposed the lopsided way the Report deals with the accountability of the LTTE as opposed to that of the government. The (Chennai) Hindu (22 December), less exacting but no less effective, editorially summed up the Report’s central inconsistency: on the one hand faulting the 2002 ceasefire agreement for “treating the Sri Lankan state and the LTTE as equal powers”, but missing the point, on the other hand, that “the state is held to far higher standards of accountability than a non-state group.”

The LLRC Report also has opened itself to perpetual legal criticisms by foraying into interpretations of international law in regard to the Sri Lankan situation. According to the International Crisis Group (ICG), “a worrying deficiency in the LLRC’s conclusions is the fundamental misstatement or misapplication of principles of international law.” The ICG is also critical of the LLRC’s claim that it has “considered the April 2011 report of the UN Secretary-General’s panel of experts” although “it did not engage the panel’s legal or factual analysis in any meaningful way.”

There is a growing body of international legal experts committed to directing international law towards protecting people’s rights regardless of state boundaries and sovereignty firewalls. Sri Lanka and its people will be better served by acting to keep the Sri Lankan state on the right side of the emerging understanding of international law and not by resorting to spurious legal arguments to defend the indefensible. The emphasis should in fact be more on being pro-active to prevent human rights violations during military operations, whether they are internal to a state or external, and less on developing accountability systems after the fact.

Organizations like the ICG, Amnesty International and Human Rights Watch, not to mention the UN High Commission for Human Rights, will keep the accountability issue alive if only to deter Sri Lanka’s unaccountability becoming a precedent for others and to hold future state actions to greater standards of accountability. But foreign governments may not be so inclined as to insist interminably on the accountability issue in Sri Lanka.

If the statement of the US State Department is any indication, foreign governments may not go beyond ‘urging’ the Sri Lankan government to address the accountability issues that the LLRC Report did not cover. But they will be insistent that Sri Lankan government fully implement all of the LLRC recommendations. The statement by the Indian External Affairs Ministry, made almost 10 days after the release of the LLRC Report, is also selectively discretionary.

On the accountability issue, the Indian statement welcomes the Sri Lankan government’s intention to set up a mechanism “to investigate allegations of human rights violations, as brought out in the LLRC report, in a time-bound manner”. It is more expansive in endorsing LLRC’s recommendations and emphasizing that the present situation provides “a great window of opportunity to forge a consensual way forward towards reconciliation through a political settlement based on devolution of power”.

Window of Opportunity

New Delhi has also seized the opportunity to remind the Sri Lankan government of its assurances “on several occasions in the past, of its commitment towards the pursuit of a political process through a broader dialogue with all parties, including the Tamil National Alliance, leading to the full implementation of the 13th Amendment to the Sri Lankan Constitution, and to go beyond, so as to achieve meaningful devolution of power and genuine national reconciliation.” India’s assurance is to “remain engaged with Sri Lanka through the process and offer its support in the spirit of partnership”.

The reference to 13A has raised hackles in Colombo. The government spokesman artfully avoided the 13A reference and welcomed India’s assurance to remain engaged. Ever ready to fish in troubled waters, especially in light of President Rajapaksa’s recent outbursts over distribution of police powers and land powers, JHU’s Udaya Gammanpila has questioned which Sri Lankan government gave assurances to India about 13A. The UNP appears to be undecided as to which way the wind is blowing – with parliamentarian Jayalath Jayawardena putting his tongue in cheek that the government might as well scrap 13A if it is not willing to concede police and land powers, and the UNP Chairman Gamini Jayawickrema Perera putting his foot in the mouth in dismissing Jayawardena’s remark saying that he has no business to speak on national issues before the party has taken an official position.

The LLRC Report is diplomatic on the details of devolution leaving it to the government and general consensus to determine the system of devolution, while emphasizing the need to strengthen local government institutions and learn from the shortcomings of the Provincial Councils system. While Provincial Councils are discredited and their powers are a contentious issue, the permanence of the province as a political and administrative unit is not being questioned. For instance, the LLRC Report is supportive of a Second Chamber in a bicameral national parliament to ensure ‘provincial’ representation at the centre.

The LLRC Report should not be viewed as a constitutional road map but a normative guide to revisit and resolve political questions that preceded the war and to acknowledge and address humanitarian issues that were produced by the war. The Commission could not have been any clearer than its diagnosis “that the root cause of the ethnic conflict in Sri Lanka lies in the failure of successive Governments to address the genuine grievances of the Tamil people.” Hopefully, this will put to rest once and for all ‘unofficial’ doubts about Tamil grievances and ‘official’ denials that there is a Tamil problem in Sri Lanka.

As I have discussed a number of times in these columns, the two founding Sinhalese leaders, D.S. Senanayake and S.W.R.D. Bandaranaike, honestly and sincerely tried to balance the imperatives of the Sinhalese electorate with the need to accommodate the political rights of the Tamils and Muslims. Their untimely deaths and their unworthy successors deprived the country of the leadership that it needed to complete the ‘reconciliation process’ the two leaders had started under very different circumstances than at present.

Indeed, for 35 years, from 1959 to 1994, there was no reconciliation but only further political alienation of the Tamils and Muslims. In 1994, as I have also suggested previously, there was a sea change in the official government position towards the Tamil question that acknowledged the alienation of the Tamils and tried to address it through constitutional changes. That position lasted eleven years and was repeatedly endorsed by the Sinhala people in every election from 1994 to 2005, even though that period is more remembered now for the error prone administration of Chandrika Kumaratunga and the partisan peace process of Ranil Wickremasinghe.

The consensus on reconciliation that was achieved between 1994 and 2005 was destroyed by the collapse of the peace process, the outbreak of war and the rhetoric of victory. Without doubt, the LTTE contributed as much as anybody else to the collapse of the peace process and the outbreak of war. On the other hand, the government’s rhetoric of victory was a throwback to the lost years between 1959 and 1994, and marked the emergence of what I recently described as neo-communalism.

The singular merit of the LLRC Report is the normative framework it provides to restore the progressive consensus that was achieved between 1994 and 2005. While the LLRC acknowledges the need for greater political consensus to achieve reconciliation, our political leaders have to acknowledge in turn the broad social consensus underlying the LLRC’s normative parameters for reconciliation. The Report crystalizes the representations it heard and it received in writing from people from all communities and all walks of life, ranging from victim statements, eye witness accounts, experiential wisdom, expert opinions and overwhelming expressions of desire for immediate redress and ultimate political solution.
Questions to the Government
and the TNA

No government can ask for a stronger mandate than what has been provided by the LLRC Report and its recommendations. The question to the government is whether it has the will and the willingness to act on these recommendations. The question to the TNA is whether it will remain engaged and exert pressure on the government to implement the recommendations of the LLRC, or let the government off the hook by withdrawing in protest that the LLRC has not adequately addressed the accountability issue.

TNA’s statement in parliament in December was poor political tactic insofar as it made TNA the issue and let the government off the hook even if temporarily. There are enough people around to keep the accountability issue alive, so the TNA must deploy its slender resources to pressure the government on issues that are of immediate relevance to the war-affected people in the Northern and Eastern Provinces.

Whatever its shortcomings, the LLRC Report is the only instrument that is available to hold the government’s feet to the fire. It may be argumentatively self-satisfying but politically irresponsible to dismiss the Report as worthless because the government that has done nothing about the LLRC’s interim recommendations for over 15 months after receiving them is not going to do anything about the Commission’s final recommendations. The Tamil people deserve something more substantial than scoring debating points.

It is appropriate to reflect on what Tamil politics was before the LTTE and what Tamil politics needs to be immediately after the LTTE. Pre-LTTE Tamil politics was conducted in circumstances when people generally were able to get on with their normal lives in reasonably satisfying ways regardless of politics. There was no threat to life or land, people went through their life stages – studying, working, raising families, and reproducing society. Representation was the central concern of Tamil politics, underlying which were concerns about access to education and employment, and language rights which affected both. In good times, politics was performance in parliament or before electoral audiences. In more difficult times, there were protests, satyagrahas, house arrests and detentions. In good times and bad times, life without politics went on peaceably well.

Post-LTTE and post-war, neither life nor land is secure. Livelihood is still precarious for many. Resettlement is far from complete, while threats of evictions are never ending. Armed groups are free to kidnap and harass. Detentions are continuing without trial. Civilian life is subordinated to military presence. The purpose of Tamil politics now must be to end this near state-of-nature affairs in the North and East as rapidly as possible. It is hardly the time for grand agendas and sweeping rhetoric. It is the time for minimalist agendas and maximum effect, persistent focus and painstaking effort.

Anyone who has been following Government-TNA talks over the last several months would know that the TNA has done nothing wrong in the talks while the government has done nothing at all that could be identified as positive or progressive. In normal times, the TNA would be justified to walk out of the talks in the face of an unresponsive government. But these are not normal times but extraordinarily difficult times for the people in the Northern and Eastern Provinces. The best the TNA could do for them is to keep the spotlight on the government until it ceases to be intransigent and inert. The worst it can do is to let the government off the hook and let the government start blaming everyone else but itself.

The TNA took the right step last year when parliamentarian M.A. Sumanthiran tabled in the legislature its long list of concerns regarding the situation in the North and East. As I have pointed out earlier, there would not have been a need for a long list if the government had taken at least some action on the interim recommendations that the LRRC made in September 2010. Although an Inter-Agency Committee of high-ranking Secretaries was established, but without any Tamil or Muslim representation, nothing came out of it. The LLRC in its final report bemoaned the government’s inaction on its interim recommendations.

The TNA must keep the government constantly engaged on the long list of concerns and LLRC’s recommendations. In fact it could be more productive and more measurable if it can make the government agree to a Minimum Program for 2012 based on the TNA long list and LLRC recommendations. TNA should publicly insist that Tamil and Muslim representatives of the people are included in all implementation actions in the Northern and Eastern Provinces.

TNA will have to do some homework of its own in the North and East. Pre-LTTE, Tamil political leaders despite their insistence on ‘official regional autonomy’ made no attempt to use existing institutions in the North and East to achieve as far as possible ‘practical regional autonomy’. The TNA must create and use the opportunity and work with local bodies and government institutions in the North and East to carry out practical tasks arising from the LLRC recommendations. ‘A long march through existing institutions’ is one way to reinvigorate Tamil politics and to make it relevant and responsive at home.

The idea of a Minimum Program is also realistic in light of the government’s growing record of incompetence and ineptitude in everything it touches. It is better to focus on a few tasks that are necessary and doable, rather than create grand expectations and end in frustration. It is necessary to start taking action in areas that do not require new laws or constitutional changes, rather than starting never ending discussions about constitutional changes.

Practical achievements under a Minimum Program will be useful in building confidence among communities and administrative experience both of which would facilitate constitutional changes later. Such changes can and must go beyond 13A and devolution. I agree with Kishali Pinto Jayawardene (Sunday Times, January 1), that “the LLRC’s recommendations can be usefully wielded in order to reach out for a bolder constitutional ideal that insists on the freeing of public and judicial office from political control as well as the rejection of an Executive Presidency clearly placed above the Rule of Law”.

It is too much to expect the present government to envisage or embark on bold constitutional changes. But it cannot avoid the responsibility to make a start and show some results on a minimum program of action in 2012. By acting positively in 2012, it can at least place itself in somewhat better standing to host the Commonwealth Summit in 2013, in Sri Lanka.


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