By International Crisis Group –

Asia Report N°239 20 Nov 2012 International Crisis Group

Executive Summary And Recommendation –    

The Sri Lankan government’s refusal to negotiate seriously with Tamil leaders or otherwise address legitimate Tamil and Muslim grievances is increasing ethnic tensions and damaging prospects for lasting peace. The administration, led by the Sri Lanka Freedom Party of Mahinda Rajapaksa, has refused to honour agreements with the Tamil National Alliance (TNA), broken promises to world leaders and not implemented constitutional provisions for minimal devolution of power to Tamil-speaking areas of the north and east. Militarisation and discriminatory economic development in Tamil and Muslim areas are breeding anger and increasing pressure on moderate Tamil leaders. Tamil political parties need to remain patient and keep to their moderate course, while reaching out more directly to Muslims, Upcountry Tamils and Sinhalese. International actors should press the government more effectively for speedy establishment of an elected provincial council and full restoration of civilian government in the north, while insisting that it commence serious negotiations with elected Tamil representatives from the north and east.

Many believed that the end of the war and elimination of the separatist Tamil Tigers (LTTE) would open space for greater political debate and moderation among Tamils, while encouraging the government to abandon the hardline Sinhalese nationalism it had cultivated to support its war efforts and agree to devolve meaningful power to the majority Tamil-speaking northern and eastern provinces. While there has been an increase in democratic and moderate voices among Tamils, the government has failed to respond in kind.

Instead, it has adopted a policy of promising negotiations and expanded devolution in discussions with India, the U.S., and the UN Secretary-General, while denying these same things when addressing its Sinhala voting base. It has refused to negotiate seriously with TNA representatives, repeatedly failing to honour promises and ultimately breaking off talks in January 2012. Since then it has demanded that the TNA join the government’s preferred vehicle, a parliamentary select committee (PSC), a process clearly designed to dilute responsibility and buy time. Three-and-a-half years after the end of the war, President Rajapaksa continues to delay the long-promised election to the northern provincial council – elections the TNA would be nearly certain to win. Despite repeated public promises, the president has refused to grant even the limited powers ostensibly given to provincial councils under the constitution’s thirteenth amendment. Instead, he and other senior officials have begun to discuss the amendment’s possible repeal or replacement by even weaker forms of devolution.

Even as the government refuses to respond to longstanding demands for power sharing, Tamil political power and identity are under sustained assault in the north and east. While Tamil leaders and nationalist intellectuals base their demands for political autonomy on the idea that these regions are the traditional areas of Tamil habitation, government figures, including the president’s powerful brother and defence secretary, Gotabaya Rajapaksa, follow a long line of Sinhala nationalist thinking and explicitly reject that the north has any privileged Tamil character. Military and economic policies have been institutionalising this ideological position with vigour.

The de facto military occupation of the northern province and biased economic development policies appear designed to undermine Tamils’ ability to claim the north and east as their homeland. For many Tamils, this confirms their long-held belief that it was only the LTTE’s guns that placed their concerns and need for power sharing on the political agenda. In the face of the government’s resistance to a fair and negotiated settlement, TNA leaders have come under increasing pressure from their constituencies to adopt more confrontational language and tactics. Growing demands for the right to self-determination for the Tamil nation and hints that separatist goals have not been permanently abandoned have, in turn, provoked harsh reactions and expressions of distrust from Sinhala leaders.

The situation is likely to remain difficult, with major negotiating breakthroughs unlikely in the near term. Nonetheless, the international community – especially India and the U.S. – should increase pressure on President Raja­paksa to significantly reduce the numbers and influence of the military in the north and hold credible northern provincial council elections in advance of the March 2013 meeting of the UN Human Rights Council. The president should also be pressed to agree to the TNA’s reasonable terms for joining the PSC and begin implementing the thirteenth amendment meaningfully. Effective and lasting power sharing will almost certainly require forms of devolution that go beyond the current unitary definition of the state. Yet if skilfully handled, the current political conjuncture, both domestic and international, holds out possibilities to convince the government to concede greater space and ratchet back some of the worst abuses.

For the TNA to improve Tamils’ chances of receiving a fair deal from the state and, ultimately, some significant degree of power sharing, it will need to articulate grievances and the value of devolved powers more clearly and in ways that larger numbers of the other main communities – in particular Sinhalese and Muslims – can understand and accept as reasonable. In particular, the demand for autonomy needs to be framed in ways that can reassure at least some large minority of Sinhalese that the threat of secession is no longer there. It is also important for Tamil political leaders of all parties to begin mending relations with Muslims, so badly damaged by LTTE killings and the expulsion of all Muslims from the northern province in 1990. The TNA should insist that Muslim representatives be given a central role in negotiations on expanded devolution of power.

Finally, the Tamil leadership needs to find both practical and rhetorical ways of building links between its struggle for rights and power sharing and the growing unease among Sinhalese at the corruption and abuse of power characteristic of the Rajapaksa government. The Tamil struggle for rights and freedom is likely to succeed only when the broader national struggle for the restoration of democracy and the rule of law, including the depoliticisation of the judiciary and the police, has made substantial progress. Joining together efforts to solve the two different forms of the “national question” should become an imperative part of the struggle for Tamil rights.

RECOMMENDATIONS

To the Tamil National Alliance (TNA):

1.  Maintain commitment to bilateral negotiations with the government to achieve substantial autonomy for the north and east within a united Sri Lanka; work to strengthen ties with other communities and broaden its reform agenda, by:

a) acknowledging LTTE crimes, particularly the expulsion of northern Muslims, apologising for not speaking out then, and setting up truth and reconciliation committees with Muslim and Sinhalese representatives;

b) speaking clearly to Sinhalese about the nature of Tamil grievances, why these require devolution – but not independence – and how the TNA would use devolved powers;

c) cooperating with the Sri Lanka Muslim Congress and other Muslim organisations to resolve land and resource conflicts in the north and east and on constitutional negotiations and devolution;

d) reaching out to Upcountry Tamil organisations to work jointly on shared concerns, particularly with regard to language discrimination and other problems facing Tamils outside the north and east; and

e) building alliances with non-Tamil parties and organisations, including those in the Sinhala community that share concerns about corruption and abuse of power, for governance reforms outside the north and east, including implementation of core Lessons Learnt and Reconciliation Commission recommendations.

2.  Prioritise developing the capacity of local TNA politicians and building a stronger community-level party organisation, better able to address local needs in the north and east, particularly on land and livelihood issues.

To Tamil Civil Society Organisations and Leaders:

3.  Acknowledge Muslim and Sinhalese suffering from the war and LTTE actions; welcome and facilitate Muslim returns to the north by cooperating to resolve land and resource disputes; and establish or revive inter-ethnic peace committees able to counter politicians and vested interests who seek to divide and control communities.

To Organisations in the Tamil Diaspora and in Tamil Nadu:

4.  Support the TNA strategy for a negotiated power-sharing agreement within a united Sri Lanka, including by sharing professional skills needed to strengthen the TNA’s organisational capacity.

5.  Acknowledge the LTTE’s role in deepening ethnic tensions and its shared responsibility for the suffering and massive loss of Tamil life in the final stages of the conflict and support inclusion of the LTTE’s actions in any independent international investigation into possible war crimes or crimes against humanity.

To the Government of Sri Lanka:

6.  Recommit publicly, before domestic and international audiences, to a political solution based on maximum devolution within a united Sri Lanka with significant autonomy for the north and east, including by:

a) restarting bilateral negotiations with the Tamil National Alliance (TNA) immediately, with the aim of reaching a basic consensus to take to the Parliamentary Select Committee (PSC) for consideration;

b) agreeing that the PSC will be a time-bound process, with a formal agenda building upon discussions with the TNA; PSC deliberations will not delay elections to the northern provincial council; and its outcomes are to pave the way for further devolution or other forms of power sharing;

c) holding free and fair elections for the Northern Provincial Council by early 2013;

d) implementing the thirteenth amendment so as to maximise powers granted to all provinces, beginning by appointing civilian governors in the north and east with the confidence of their councils; introducing legislation to reduce governors’ powers; giving the northern and eastern councils adequate financial resources and new powers to raise revenue; and consulting meaningfully with them on development projects; and

e) withdrawing the Divineguma bill and instead decentralising decision-making on economic development to give local government significant input into and control over resources and projects.

7.  Begin rapid demilitarisation and return to civilian administration in the north and east by reducing significantly the numbers and public presence of troops, removing troops from all influence over development and humanitarian work and other civilian activities, and placing the police fully in charge of law enforcement.

8.  Acknowledge and take concrete steps to respect the traditionally Tamil and Tamil-speaking character of the northern province and much of the eastern province, including by:

a) promising publicly that there will be no state-spon­sored demographic change leading to the Sinhalisation of traditionally Tamil and Muslim areas in the north and east;

b) protecting land rights, ensuring transparent processes for land policies and transactions, returning real property seized by the military and offering compensation when private land is used or taken; and

c) protecting the cultural and religious rights of Tamils, both Hindu and Christian, as well as Muslims, including by ending the military-supported construction of Buddhist statues and temples in the north and preventing and punishing damage to or destruction of holy sites.

9.  Revise immediately policies that are exacerbating grievances of Tamils in the north and east, including by:

a) giving family members the names and locations of all individuals detained by any government agency for suspected LTTE involvement; allowing open mourning of the dead; and assisting recovery of remains;

b) acknowledging credible evidence of extensive enforced disappearances of Tamils in the final stages of the war and initiating an independent investigation;

c) allow the Sri Lankan national anthem to be sung in Tamil at public events in Tamil-speaking areas and in both Sinhala and Tamil at national events;

d) ending harassment of Tamil political activists and allowing all citizens in the north and east to freely protest and criticise the government and military without risk of violence or disappearance; and

e) reducing restrictions on and harassment of humanitarian workers and community groups, allowing them to determine priorities, with input from local communities, and increase assistance, including in housing, livelihoods, and gender-based violence and psycho-social programming.

10.  Act immediately on other longstanding and legitimate grievances of Tamils throughout the island by:

a) guaranteeing their physical security and respecting their basic human rights; disarming illegal armed groups; ending abduction, disappearance and arbitrary detention as means of political control and ceasing harassment of Tamil women by military personnel; ensuring credible, independent investigations of past abuses; and establishing local and regional control and accountability mechanisms for all security forces;

b) guaranteeing the right to use their language, especially when doing business with state officials; and

c) ending all forms of discrimination, including with regard to government assistance, state jobs, courts and the police, and by increasing the percentage of Tamil-speakers in the security and public services.

11.  Expedite implementation of the core recommendations of the Lessons Learnt and Reconciliation Commission, in particular reversing consolidation of power in the presidency and military by repealing the eighteenth amendment to the constitution and restoring constitutional limits on presidential power over the attorney general and judiciary; reestablishing independent commissions on human rights, police, elections, bribery, finance and public service; removing the police from the defence ministry; and ceasing intimidation of the judiciary, beginning with the withdrawal of impeachment proceedings against the Supreme Court chief justice.

12.  Cooperate fully with UN and other international agencies, including in implementing the March 2012 Human Rights Council resolution; invite all relevant special procedure mandate holders to visit before the March 2013 session.

To the Sri Lankan Muslim Congress, other Muslim Parties and the United National Party:

13.  Reaffirm support for devolution of power, beginning with rapid, expansive implementation of the thirteenth amendment, followed by reforms designed to increase, not reduce, effective devolution of power.

To Sri Lanka’s International Partners, including China, India, Japan, the U.S., UK, EU, UN, Australia, and the International Financial Institutions:

14.  Press the government for quick, irreversible, and genuine action to address Tamil grievances and pave the way for a lasting political solution, including most urgently:

a) public recommitment by the president to implement the thirteenth amendment fully, followed by immediate return to bilateral talks with the TNA, prior to activation of the PSC;

b) elections to the northern provincial council by early 2013, accompanied by demilitarisation of the north, its full return to civilian administration and a range of other policy changes to foster reconciliation;

c) allowing all UN special procedure mandate holders who desire to visit Sri Lanka to do so in time to report to the March 2013 Human Rights Council session; and

d) fulfilment of the March 2012 Human Rights Council resolution, including rapid implementation of the core Lessons Learnt and Reconciliation Com­mis­sion recommendations to establish independent bodies to hold presidential and military power to account and credible, independent investigations of alleged war crimes.

15.  Ensure that development aid does not further consolidate an undemocratic, ultimately volatile political regime in the north and east; insist on transparency, external monitoring and non-discriminatory community participation in setting its priorities; and condition all loans and development aid, including from the World Bank, Asian Development Bank and International Monetary Fund, on demilitarisation and democratisation of the north and east.

To the Secretariat and Member States of the Commonwealth:

16.  Insist that the Sri Lankan government take the actions listed in recommendation 14 above, and agree that in the event it fails to do so, the October 2013 Commonwealth heads of government meeting will be moved from Colombo to an alternative location.

Brussels/Colombo, 20 November 2012