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T H E A S I A F O U N D A T I O N
Focus on Sri Lanka
A S I A NP E R S P E C T I V E S
S E R I E S1 Introduction
Opening RemarksAmbassador Teresita C. Schaffer
3 The Issue of GovernancePaikiasothy Saravanamuttu
8 Legal Aspects of Human Rights IssuesPrashanthi Mahindaratne
12 Alternative Dispute ResolutionDinesha de Silva
16 Concluding RemarksAmbassador Teresita C. Schaffer
19 Questions and AnswersFocus on Sri Lanka Panel
29 Seminar Participants
Clearly, there are challenges inherent in the very notion of
nation-building anywhere in the world. In the case of Sri Lanka,
however, the challenges are that much greater because nation-
building, if it is to be successful, must endeavor to accommodate
and even reconcile the deeply held differences within our society.
PAIKIASOTHY SARAVANAMUTTU
Executive Director
Centre for Policy Alternatives
T H E A S I A F O U N D A T I O N
1
A S I A N P E R S P E C T I V E S S E M I N A R
Asian Perspectives: Focus on Sri Lanka is part of an
ongoing series of seminars sponsored by The Asia
Foundation. Convened on September 10, 1998, at The
Carnegie Endowment for International Peace in Washington,
D. C., the seminar focused on Sri Lanka’s challenges to
and prospects for political and constitutional reform, legal
protection of human rights and the security situation, and
new avenues for resolving disputes in Sri Lanka.
Opening Remarks
By the Honorable Teresita C. Schaffer,
Center for Strategic and International Studies;
Former U. S. Ambassador to Sri Lanka
As I was being sworn in as the U.S. ambassador to Sri Lanka
in 1992, I can remember taking note of the fact that universal
suffrage is one of the many inspiring facts that describe this
country off the southern tip of India. Suffrage as a right has
been in place since 1931 in Sri Lanka! Nevertheless, it remains
something of a mystery to me why Sri Lanka has not been
able to take more effective advantage of the wealth in human
resources that women offer. I must confess that this mystery
had deepened by the time I left the country three years later.
I recognized then, as I do now, that I had not even begun to
unravel all that Sri Lanka represents and therefore, the wise
approach is to bring a sense of humility when trying to
understand a society that is not one’s own.
Arriving at this understanding also has meant that the
mystery describing Sri Lanka at the beginning of my tenure
there, is the mystery that comes to mind today whenever I
reflect on the country. Sri Lanka is a place where all communi-
ties — even that which represents the majority — feel that they
are in the minority. The Tamils and the Muslims are truly
minorities on the island, for example. The Sinhalese, on the
other hand, enjoy the majority in terms of numbers, but feel
like they are in the minority whenever they — or anyone else,
for that matter — look out across the Palk Straight in the
direction of the tip of India. Meanwhile, the people of Sri
Lanka feel very deeply about the effort that has been and is
being made to resolve the ethnic problems that continue to
plague Sri Lanka.
These kinds of perceptions also color the politics of the
country. In fact, it seems that rather existential issues are
among those that are the most important facing Sri Lanka
today. There also is a paradox here. Whenever someone takes
note that the economy is showing encouraging signs, notice
also must be paid to myriad issues that have resulted from
years and years of ethnic strife. Indeed, when Sri Lanka got
its independence in 1948 from Great Britain, the new country
was viewed as one of Asia’s most promising economies.
But little was done for almost 40 years to build on the
economy’s most productive sectors. A lopsided pattern of
development resulted. For example, extraordinary strides
were made in the so-called soft sectors, like health and educa-
tion, and in the sectors that impact a citizen’s quality of life.
In fact, Sri Lanka became a leader throughout the developing
world in all these areas.
Only recently has the economy begun to grow in those
sectors that hold out genuine opportunity for expansion.
I also take note here of the fact that the benefits flowing
from economic expansion have not been distributed very
well. For the moment at least, all this adds up to the fact
that Sri Lanka is enjoying growth rates that are encouraging,
Introduction
relatively speaking. Still, underlying problems remain,
reflecting this lopsided pattern in the economy. It is true that
virtually every country in today’s developing world has had
problems of one sort or another in recent times. It is not my
intention to exaggerate or overstate any criticism or observa-
tion, implicit or otherwise. Instead, it is my intention, and
hope, to sketch a backdrop against which the politics of Sri
Lanka, the country’s search for peace, its defense of human
rights, and all the other issues it struggles with, can be assessed
and ultimately understood.
2
The Issue of Governanceby PAIKIASOTHY SARAVANAMUTTU
3
A S I A N P E R S P E C T I V E S S E M I N A R
Concerns about governance in Sri Lanka flow both from
a protracted internal ethnic conflict that dates back
over 40 years and from problems that originate outside the
parameters of the conflict. Not the least of these is the fact
that Sri Lanka is very much in the throes of a nation- and
state-building crisis.
Clearly, there are challenges inherent in the very notion
of nation-building anywhere in the world. In the case of
Sri Lanka, however, the challenges are that much greater
because nation-building, if it is to be successful, must
endeavor to accommodate and even reconcile the deeply
held differences within our society.
Nation-building and the need to bridge ethnic differences
go hand in hand. In the Sri Lankan case, there is also a certain
irony in that the very durability of certain anti-democratic
actors makes them responsible for so much of the conflict,
on the one hand, and, on the other, it means that they
end up being a catalyst in the process of democratization.
This is especially so with regard to constitutional structures.
At one level, we are talking about a society that is
pluralistic and highly educated, which nevertheless needs
to lay down constitutional ground rules for governing
relationships between the majority and the minorities.
The act of achieving independence in 1948 was not the
result of an all-out struggle involving everyone and now,
50 years after formal independence, there is a sense that
these issues have to be debated and decided.
It may be wishful thinking, but had a tradition of mass
action been established, Sri Lanka might be able to resolve
these issues today through more conventional methods than
by resorting to armed force. Consequently, we are at a point
where much needs to be done.
The contemporary debate in Sri Lanka is focused on
national integration as encapsulated by the slogan, “One
Country, One People.” This needs to be seen in context,
and therefore a certain amount of information about the
historical evolution of the political and social structures is
instructive in understanding the problems of governance in
Sri Lanka today.
First, the entire political and constitutional evolution
continues to unfold in a context that emphasizes the
consolidation and centralization of power. This is the case
in many developing countries. In Sri Lanka, we have moved
from a colonial legacy with an emphasis on parliamentary
democracy and the vesting of all power in parliament to a
situation where power is vested in the office of the chief
executive — the president. We have arrived at this situation
even though we began with a parliamentary system.
In my opinion, this is attributable to the fact that
there has been no tradition of mass demonstration or an
independence struggle conducted in the name of the people.
Indeed, former President Jayawardene, the architect of the
current constitution, was quoted as saying that the only
power the executive president does not have is the power to
change a person’s sex! This is today’s reality. Parliamentary
democracy is but a façade. Real power and authority lie
with a single individual and a single institution, namely the
office of the president. The consequence is a political culture
that is statist and woven around the centralization of power.
It has led to the partisan politicization of civil society
and the attendant problem — when one thinks in terms of
checks and balances — of forcing people into operating
within the context of political parties as the effective vehicles
for political and social change. It means that civil society to
achieve its aims relies on a network of power relationships
that are realized in private soirees or on the cocktail circuit.
In effect, success is by virtue of
partisan political allegiance
and socioeconomic status.
The media also figures in this
complex set of circumstances.
Because of the prevalence of
partisan political allegiances,
both the print and electronic
media are precluded from
functioning as effectively as they
should — as a bulwark against
authoritarianism. Instead, the
media ends up as part of a set
of forces for which it is also
an apologist.
Another dimension to the
problem of governance is the
question of youth unrest. It is no coincidence that young
people in the south of the country spearheaded two insur-
gencies, one in 1971 and the other from 1987 to 1989.
In both cases, they mounted armed challenges to the state
from within the majority community. In the case of Tamil
militancy, too, it was the youth who grabbed the initiative
and challenged prevailing notions of nationhood.
There are reasons for youth discontent. Even though
education is free, including at the university level, there is
the perception of a gap between government promises and
performance, especially in the provision of viable employment
opportunities. Government is seen as a discriminatory actor
and, in some instances, as a predator and not as provider or
protector. It is perceived as antagonistic because it is not
able to protect or provide to the extent that it has promised
it would.
Falling short in its performance, government then turns
increasingly authoritarian in its efforts to maintain control.
This is the case in Sri Lanka and the youth have borne the
brunt of it. Indeed feelings of
alienation are at the heart of vir-
tually every problem, whether it
is focused on education or on
hopes of breaking into the political
and social mainstream. The
whole question of widespread
access to social and economic
power is an important aspect of
insurgency in Sri Lanka and of
the current conflict in the north-
east of the island.
Put simply, these feelings
translate into a demand for a
state of one’s own based on the
perception that the state as it
exists, will never have one’s inter-
ests at heart. Another expression of this is the project to
hijack the state and make it one’s own. The southern youth
insurgencies manifested this in particular, while the northern
one is secessionist in inspiration and design.
Both these factors — youth disillusionment and ethnic
factionalism — came to a head in the 1970s and 1980s.
Literature on the crisis of governance and the legitimacy
of the state in South Asia, including Sri Lanka, emerged in
this period. In fact, the dynamics of the problem in Sri
Lanka were similar to what was happening elsewhere in
Asia. The market was opening up and overall liberalization
4
The whole question
of widespread access
to social and economic
power is an important
aspect of insurgency
in Sri Lanka and of
the current conflict
in the northeast of
the island.
5
A S I A N P E R S P E C T I V E S S E M I N A R
of the economy had commenced. Clearly, the process was
not a smooth one. It did not happen without the usual
pangs — or without certain accomplishments, for that matter.
This period promoted a reorientation of the citizen-state
relationship in which the state now had to be seen as more
of a facilitator rather than the provider of the welfare and
well-being of everyone. This has resulted in greater pluralism
in the distribution of power in terms of bringing to an end
the overwhelming dependency on the state for education and
employment. While the state certainly has a role to play in
these areas, other options now are available.
The events of the late 1970s and 1980s served as the
backdrop to the general election of 1994. Expectations ran
very high that the election would be the catalyst for peace
as well as for good, clean government. Above all, people
wanted a clean break. They saw the preceding two decades
as having embraced years of single-party government,
insurgencies in both the north and south of the country,
horrendous human rights abuses, corruption, and extreme
authoritarianism.
The leader of the Peoples Alliance, Chandrika
Bandaranaike Kumaratunga, who was first elected prime
minister in August 1994, and then president in November
1994 (with a massive 62 percent mandate) promised peace
talks with the Liberation Tigers of Tamil Eelam (LTTE),
the secessionist Tamil militant group. She also promised
constitutional reforms that would free up society, resolve the
ethnic conflict, abolish the executive presidency, and restore
parliamentary democracy.
While an unprecedented devolution package has been
proposed to resolve the ethnic conflict, it has yet to be
approved by parliament and to be implemented. A number
of the other electoral promises made in 1994 also are yet to
be fulfilled. Four years later, there is a general sense of
malaise and a feeling that can be best described as one of
being stymied on all fronts, not the least of which is the
resolution of the ethnic conflict.
The latter has stirred up quite a lot of debate in Sri
Lanka of late. At times, this debate is sterile, and at other,
it is fruitful. It invariably focuses on whether there is a
terrorist problem or an ethnic conflict — and whether a
military strategy can be deployed productively in search
of a political solution.
A key question is whether there can ever be peace with
an avowedly secessionist organization that is fascist in out-
look, like the LTTE. For example, would the LTTE be inclined
to regard an attempt to negotiate as a sign of weakness on
the government’s part? Would it therefore try to hold out
against negotiations in the belief that it could succeed with
plans for secession? Recent history suggests that the LTTE
leadership is not interested in a peaceful resolution.
Nevertheless, the challenge of finding a solution remains
for all those who are interested in good governance and
Sri Lanka’s future prosperity. Resolution of the conflict is
not only critical for prosperity and governance, it is the key
to the country’s survival. Why do I say that? At present, the
Sri Lankan government is forced to operate with a crippling
defense budget. The manpower requirements that are neces-
sary to take territory from the Tamil Tigers and then hang
on to it are tremendous. Extensive resources are needed to
provide relief and rehabilitation to people in the northeast,
in particular to the Tamil minority who have been victims of
what must seem like endless military activity for the past
15 years.
The war has become a thing unto itself. For example, the
government recently postponed provincial elections on the
grounds that security considerations necessitated this. Failure
in this respect, the government maintained, would work to the
advantage of the LTTE. Holding to this argument, the govern-
ment not only postponed elections but also demonstrated that
its strategy had impaired its ability to fulfill a basic function of
democratic governance, namely holding elections.
What is required to resolve the ethnic conflict that is
tearing up the country? Both the government and the main
opposition party have begun to say publicly as well as in
private, that there must be negotiations with the Tigers.
However, I am of the opinion that the leaders in government
and in opposition do not comprehend what negotiations will
entail. Moreover, they do not appear to have a clear appreci-
ation of the nature and scope of the conflict. It is a problem
of mindset and perspective.
It has been said that Sri
Lanka is a country of many
minorities. It may be a cliché,
but there is a certain amount
of descriptive power in the
characterization of a majority
community in Sri Lanka with a
minority complex and a minority
community with a majority com-
plex. For example, there is an
almost atavistic sense of insecurity
on the part of the Sinhalese
community — the overwhelming
majority in the 25,000 square miles that make up the island.
With this mindset, Sri Lanka is their home in a way
that it is not the home of the Tamil minority. The latter
are separated by 22 miles of sea from the 60 million or so
Tamils who live in southern India and the millions of others
who live in Southeast Asia and elsewhere in the world.
Likewise, from this perspective, the Muslim minority is
seen as part of a wider international Islamic community.
Majoritarianism is ingrained deeply in the Sinhalese
psyche. Any attempt to move beyond the narrow expression
of this, say with an argument that favors genuine devolution
or sharing of power, is often met with fierce resistance.
The belief seems to be that power shared is power usurped.
Arguments calling for devolution and power-sharing as a
means of ending the ethnic conflict have traditionally been
rejected outright.
In my opinion, history is leaving behind those who
promote the unitary state and who turn their backs on
federalism and the notion of power sharing. Apparently
those in the government of Sri Lanka think the same. For
the first time in Sri Lanka’s political history, the government
in Colombo has come forward with a package that pro-
motes devolution. It is a package
that needs the support of both
the government and the opposi-
tion before it can be incorporated
in the constitution. Any change
in the constitution requires a
two-thirds majority in parliament,
plus a simple majority of the
people voting in an island-wide
referendum. Those who can
implement the proposals in
the northeast would have to
be identified as well.
The current position is that
the principal opposition party, the United National Party
(UNP), is not willing to support the government’s proposals.
It is a stance taken on the petty partisan calculation that they
would be locked out from power indefinitely if the govern-
ment succeeded with these proposals as the basis for a
peaceful solution to the conflict. Because the opposition has
significant support, the issue is deadlocked.
It is also complicated by the fact that the government has
declared its intention to bypass parliament and go directly to
the people in order to break the stalemate and change the
constitution. Obviously, this could have serious repercussions
for democratic governance in Sri Lanka. Were the govern-
ment to obtain just 50.1 percent of the popular vote, it very
well could go ahead and promulgate a new constitution.
6
History is leaving
behind those who
promote the unitary
state and who turn their
backs on federalism
and the notion of
power sharing.
It is worth noting that during the last 20 years, each
time a party has won government, it has changed the
constitution. This is a practice that calls into question the
very concept of due process. If this continues, it will present
even more serious problems down the line. It is a quick fix
that begs the question of the durability of a constitution so
enacted. The next government could well resort to the same
expedient and change the constitution yet again. It also
raises the question of whether the minorities can support
a constitution that is subject to frequent change, however
strong the guarantees are for them personally.
The stalemate continues and with it, the slow realization
that the government and the LTTE have to talk directly.
There have been resource persons from Northern Ireland
and South Africa who have shared their experience in conflict
resolution with Sri Lankan parliamentarians. Yet, without a
change in the mindset on both sides in Sri Lanka, the conflict
looks set to continue for some time.
The LTTE is a very fascist group that does not have the
full support of the Tamil people, as it claims. They cannot
be marginalized militarily or politically, as the record shows,
and therefore must be dealt with through negotiations. This
will entail moving beyond old notions of what the state has
to do and what the state ought to be. In the meantime, it is
possible that some could end up being the catalyst for a
whole new movement.
That said, our political leaders still have to feel a greater
sense urgency than they feel at present if this conflict is to be
resolved — and if we are to realize success. If our leaders fail
in this, they risk sacrificing everything achieved so far and in
effect, returning us to square one.
7
A S I A N P E R S P E C T I V E S S E M I N A R
Legal Aspects of Human Rights Issues by PRASHANTHI MAHINDARATNE
8
In the convulsive atmosphere that surrounds the conflict
in Sri Lanka, the legal ramifications in the human rights
arena are particularly noteworthy. Two main aspects, with
certain peripheral dynamics, are instructive in describing the
current security situation.
First, separatist minority Tamil guerrillas, led by the
Liberation Tigers of Tamil Eelam (LTTE), are waging what
is now nearly a two-decade-long war against the state. They
continue to provoke combative situations in pockets in
the north and the east between the LTTE and Sri Lankan
armed forces while also trying to infiltrate the so-called
non-combatant areas.
Peripheral yet important to understanding the situation
is the violence that the LTTE is perpetrating also in the
political arena, mainly against Tamil politicians. A dramatic
case in point is the back-to-back assassination of two
mayors of Jaffna. Second, Sri Lanka is no exception to
the fact that very frightening aspects are present whenever
fighting poses a threat to civilian life. Here, it would seem
that the government has little choice but to do what it
can to maintain civil order, including in those areas where
combat is occurring.
For example, the government made a decision to step up
the security alert in Colombo following a series of attacks
and bombings at the Central Bank and the Galadari Hotel.
Security measures also were strengthened in other cities as
a result of the violence, with the result being restricted
movement, especially in certain areas. The measures included
road blocks, security check points, the random checking of
vehicles as well as of individuals, and the otherwise generally
close scrutiny of people, especially those who travel from the
north and the east to non-combative areas.
One result has been the bringing of several claims
of human rights violations, mostly on the part of the
Tamil community.
It is important here to acknowledge that a very real
security threat existed — and to recognize that security
measures are essential in the present context. It also is
important to bear in mind that with extraordinary security
measures in place, there also is the potential for the abuse
of power and arbitrary use of authority by the military
personnel whose job it is to keep areas safe.
Also, so-called “war crimes” need not be limited to mili-
tary personnel. They can be, and have been, initiated by
armed combatants who operate under the LTTE’s banner. In
fact, it is unfortunate that all too often only military personnel
are brought up in connection with “war crimes,” while
violations at the hands of the LTTE get swept under the carpet.
Allow me to mention briefly and then return later to the
widely known Krishanti Kumaraswamy case. This is a case
with which I personally am familiar, having served as a
member of the prosecution team. The Krishanti Kumaraswamy
case involved the rape and murder of a young woman in
September 1996 in Jaffna. The verdict that ultimately was
handed down found the authorities charged with involvement
guilty and, in the process, countered a prevailing notion that
government security forces throughout the country were
entitled to blanket immunity from prosecution. The verdict
also demonstrated just how effective Sri Lanka’s legal
system can be when it must deal with abuse of power
and human rights allegations within the judicial system.
Here, a brief digression is in order to point out that
law enforcement officers in Sri
Lanka confront a dilemma
whenever they are involved in
the prosecution of subversives
for alleged acts of terrorism.
That is because the court’s legal
framework essentially caters to
civil situations.
Of course, officers have the
advantage of emergency regula-
tions when it comes to preventing
terrorism. Their main instruments
include special powers of arrest,
detention, and other prosecutorial
provisions. But based on my
experience as a prosecutor, I can say these instruments are
not 100-percent effective for the simple reason that they are
employed in emergency situations but get evaluated in
a civilian context, namely when they become part of a
legal proceeding.
To clarify the point, under emergency regulations, a
confession made by a suspect to an assistant superintendent
of police or a person of senior rank, is admissible as evidence
against the suspect in a follow-up criminal suit. This exception
is based on reasoning that argues that the arrest and detention
of subversives often derives from intelligence reports,
which may or may not contain directly admissible evidence,
especially in light of a rather rigid law on the subject of
the admissibility of evidence generally.
Because it is difficult to imagine a witness being ready
to come forward and testify against an LTTE member in a
criminal suit that involves charges of terrorism, it was
necessary to allow the exception in order to facilitate
effective law enforcement against terrorism. And since this
exception was allowed, the court must be satisfied that a
confession was made voluntarily and prior to a decision
to allow the admission of the
confession as evidence in a
criminal suit. The court must
be satisfied that the confession
was not obtained under duress.
It should be noted here that
the court has no specific guide-
lines for how to satisfy itself
about whether a confession
was indeed voluntary or not,
nor are there any provisions that
establish what degree of proof
is required to show that the
confession was indeed voluntary.
As a consequence, the courts
have adopted their own system whereby they hold an inter-
mediate inquiry — while the main trial is underway — to
determine whether or not the confession was voluntary.
In the process, they employ certain basic legal principles,
such as proof must be established beyond a reasonable
doubt; the prosecution carries the burden of proof; and the
accused is innocent until proven guilty.
One outcome, however, is that the testimony of a good
law enforcement officer can be rejected in favor of the partly-
tested and even sometimes tainted testimony of the accused.
That is because the court ends up giving the benefit of the
doubt to the alleged terrorist who gets into the box and
says, “Well, I gave this confession under duress.” The court
9
A S I A N P E R S P E C T I V E S S E M I N A R
Not only has the court
meted out some very
harsh judgements
against law enforcement
officers, it also has
awarded large sums
as compensation
to petitioners.
then finds that the confession cannot be allowed as evidence
in the main proceeding and the accused, often a hardcore
subversive, ends up walking away scot-free. In the process,
the legislature’s intentions to provide for the exception also
are undermined.
Because of the potential for problems here, it seems
imperative that we reform these laws or introduce new laws
that truly facilitate effective law enforcement against terrorism.
Returning to the subject of legal remedies for human
rights violations, those who feel they have been victimized
can file a fundamental rights petition before the Sri Lankan
Supreme Court.
Chapter Three of the Sri Lankan Constitution, Articles
10 through 17, guarantees and protects an individual’s
fundamental rights. Article 10 spells out the guarantees
on behalf of freedom of thought, conscience, and religion;
Article 11 concerns freedom from torture; Article 12 deals
with the right to equality; and Article 13 guarantees freedom
from arbitrary arrest, detention, and punishment.
Article 17 renders “justiciable” (legal terminology for
the ability to sue on the basis of those rights) the extension
of rights to an individual and entitles that person to invoke
the Supreme Court’s jurisdiction under the Constitution’s
Article 126 for redress of an alleged breach or violation of
his or her rights.
Recent events demonstrate that the Supreme Court has
been very effective in dealing with this fundamental rights
petition. Not only has the court meted out some very harsh
judgements against law enforcement officers, it also has
awarded large sums as compensation to petitioners. And not
only is the petitioner redressed, the decisions also serve as a
deterrent against similar behavior on the part of law
enforcement officers.
Also, the Attorney General, as a rule, does not defend
police personnel, officers, or military personnel against
allegations that they breached a ban against torture as
embraced by Article 11. The Attorney General will under-
take the defense against charges brought under Article 13
against illegal arrest, detention, and/or arbitrary treatment
only after an internal inquiry establishes a claim’s authenticity.
Meanwhile, an individual seeking redress for a human
rights violation also can file a prerogative writ of habeas cor-
pus and certiorari with the Court of Appeal. Depending on
the nature of the alleged violation, a person also can bring a
complaint individually as well as a civil suit against individ-
ual officers, seeking compensation for an illegal arrest, for
example.
Other more general remedies also are available, including
an individual’s right to file a bail application with the Court
of Appeal and/or asking the Attorney General to quash a
detention order. The Human Rights Commission also can
be called in to review a set of circumstances. In the latter
instance, defense personnel are required to file a report
explaining what happened at the time of the arrest made
under emergency regulations and what it is that was expected
to happen as a result of the arrest.
It may be appropriate here to point out that Sri Lanka
has been a signatory to and has ratified almost all
international covenants that pertain to human rights and
humanitarian laws.
Certainly, the Krishanti Kumaraswamy case can serve as
a backdrop to our discussion about human rights violations,
particularly during times of heightened security concerns.
Not only does the case illustrate the concerns that can come
into play at the state and judiciary levels whenever crimes
relating to human rights are involved, it also demonstrates
the legal mechanisms that are in place to insure that justice
is meted out, especially in human rights cases.
Unfortunately, the Krishanti Kumaraswamy case
involves one of the most gruesome crimes ever committed by
10
uniformed personnel against innocent civilians in Sri Lanka.
An 18-year-old girl, who was living in Jaffna at the time of
her death, was returning home from school in September
1996, when she was abducted at a security checkpoint,
raped, and murdered. When her mother, brother, and a
neighbor went to search for her at the security point in
question, they, too, were murdered in an effort to prevent the
reporting of the young woman’s death to higher authorities.
The bodies of the victims, all Tamils, were buried behind
the checkpoint.
When the disappearance finally was reported, there
was a great deal of speculation, especially among Tamil
politicians over whether the perpetrators would ever be
brought to book, especially since the suspects were all
Sinhalese. To her credit, President Chandrika Kumaratunga
ordered action taken immediately. I flew to Jaffna to be
present at what turned into a very difficult investigation.
Eight soldiers of the Sri Lankan army and one policeman
were indicted before the High Court, marking the beginning
of what would become one of Sri Lanka’s most publicized
trials of the decade. The trial continued daily for more than
seven months while skepticism, particularly among LTTE
propagandists, ran rampant.
On July 3, 1998, the guilty verdict on charges of rape
and murder was returned against five military men and one
policeman. All six were sentenced to death. (Another of the
accused soldiers died while the case was underway, and two
others were acquitted.)
The verdict was hailed locally and internationally as a
landmark judgement because it marked the first time that
Sri Lankan security personnel were convicted of human
rights violations. It also demonstrated just how effective
the justice system can be in dealing with crimes revolving
around human rights allegations.
Furthermore, the verdict demonstrated that it is no
longer necessary to always hand this kind of case to the
military courts. As an aside, I personally feel that the
military courts are a better forum for this type of case
for the simple reason that military tribunals are not bound
by the same rules and regulations that govern civil courts.
Specifically, a trial before a military court can be concluded
more expeditiously and effectively to the advantage of
the prosecution. For the time being, a decision to put this
kind of case before a military court is sure to provoke a
public outcry because of fears that a hearing will be biased
and partial.
One final point is that this case also concluded with a
margin of hope that the conflict in Sri Lanka might someday
be resolved. I quote from the Sunday Weekly: “The victims
were Tamils. The perpetrators were all Sinhalese and
security personnel at that. Yet, the President who ordered
swift action was Sinhalese. The defense personnel, who
implemented those orders and apprehended the offenders,
were Sinhalese. The prosecutors were Sinhalese. The judges
were all Sinhalese.
“Yet the greater ideal of retributive justice has triumphed
over the narrow racial perspectives of the LTTE. And more
importantly, the very real feeling of revulsion expressed by
the average person, whether Sinhalese or not, against the
offenders, has reinforced the truth that the punishment must
fit the crime.”
It is my hope that the outcome of this trial will prove
to be a durable testament to the Sri Lankan government’s
commitment to uphold the human rights of all its citizens.
11
A S I A N P E R S P E C T I V E S S E M I N A R
Alternative Dispute Resolution by DINESHA DE SILVA
Changing gears, my remarks will focus on the alternative
dispute resolution program that has been in operation
for about 10 years in Sri Lanka.
The Mediation Boards Program, administered by the
Ministry of Justice and Constitutional Affairs in Sri Lanka,
provides an effective alternative to traditional forms of
courtroom litigation that are carried out in courtrooms.
Their primary objective is to reduce what seems to be an
ever-growing backlog of cases.
During the past two decades, Sri Lanka has experienced
a significant increase in litigation that is impeding upon the
courts’ ability to cope with their dockets. Delays have
become quite routine as more and more cases piled up
behind those that take 5 to 10 years to litigate.
Even today, the backlog ranges upward to 8,000 cases
in the Court of Appeal alone. In petition and testamentary
cases, disputes may not even get resolved for the generation
that instituted the action. Modernization of the courts,
judicial training, and improved court administration could
help alleviate the problem to some extent, but the creation
of an effective alternative for resolving disputes is an option
that the government of Sri Lanka has chosen to experiment
with concurrently.
The mediation program was put in place 10 years
ago. Since then, more than 510,000 applications have
been referred to mediation. Today, mediation boards are
accessible to the general public and also well publicized.
They are entirely voluntary and promote confidence in the
government’s ability to adjudicate disputes, which is some-
thing that should be of interest to the average Sri Lankan
and to the international community as well.
While the mediation boards’ success depends ultimately
on the public’s willingness to accept an alternate system for
dispute resolution, the technical competence and profession-
alism of the mediators is also very important. The attitudes
of legal professionals toward mediation impinges on the
mediation boards’ ability to resolve disputes speedily and to
sustain themselves as independent and nonpolitical entities.
To this end, the Ministry of Justice holds a series of training
and awareness sessions that complement the program’s
administrative framework. There is a permanent cadre of 13
mediator-training coordinators whose job it is to provide
5,200 volunteer citizen mediators with their initial training
as well as advanced and refresher courses every six months.
Typically, each mediator is appointed for a three-year
period and can be renewed following a successful evaluation.
A mediator-trainer oversees approximately 20 community
boards, which translates into visits to three or four boards
each week. Trainers teach all the sessions, monitor the
mediators, provide feedback, and assist the boards in
dealing with administrative issues that arise.
Both mediators and board members are selected in a
competitive process that starts with an application to the
Mediation Board’s Commission. The Commission itself has
12
five members, three of whom by law must be retired judges
of the Supreme Court or Court of Appeal. The Commission
generally meets monthly to supervise and review mediators’
performance. Mediators, who are appointed based on aptitude
and an ability to be fair and impartial, tend to be civil servants,
teachers, school principals, postmasters, religious leaders,
professionals, and other respected citizens in their communi-
ties. The overwhelming number are men, and an effort should
be made to bring more qualified women into the program.
The mediation system in Sri Lanka requires that mediators
simply facilitate mediation and enable the disputants to
arrive at their own solutions. This is not an easy task and
sometimes, disputants’ expectations that mediators are there
to solve their problems, can get in the way.
Mediator trainers also get involved in a series of
awareness-raising and educational programs with the police,
local government officials, school children, and social workers.
There are two distinct programs here, one of which is a
stakeholder program that involves district judges, magistrates,
police chiefs, and local government officials — each with a
legally prescribed role under the Mediation Boards Act.
So far, there have been stakeholder programs in all areas
except for the north and until recently, the east.
Geared to various constituencies, education programs
attempt to educate an ever-wider range of people about the
process and then to impart understanding of the values that
underpin mediation skills. One particularly innovative
program, which introduces mediation techniques to young
leaders and teachers, has promoted interest in peer mediation
programs in the schools.
Despite the successes, the legal community has remained
wary, some even going so far as to publicly express skepti-
cism about the benefits of a program they do not take part
in. To introduce the next generation of lawyers to the
concept of mediation and the benefits of using mediation
skills, final-year law students at the Sri Lanka Law College,
participate each year in a three-day workshop. This is done
as part of their practical training and has been conducted
for the past three years. The workshop demonstrates the
techniques of mediation in an effort to assist them both in
observing mediation in action and in using the skills that
are involved.
To create even more widespread interest, a media
campaign with radio and television spots explaining the
benefits of mediation has been planned for this year. The
campaign is intended as a follow up to a highly successful
nationwide poster campaign. There is every indication that
these strategies are helping the mediation boards continue to
operate successfully. Since their implementation under the
Mediation Boards Act of 1988, the boards’ objective has
been consistent, namely to provide the people of Sri Lanka
with a low-cost and effective mechanism for mediating
disputes successfully.
It is worth noting that mediation is not new to Sri
Lanka. Mediation boards and the promotion of informal
mechanisms for dispute, resolution have been part of the
country’s social, cultural, and historical context since the
time of the Sinhalese kings. As far back as 425 BC, village
councils provided citizens mechanisms for seeking redress
for local conflicts at the community level. Typically a council
included village elders who met at a local resting spot —
often under a shady tree — to hear cases that involved petty
theft, boundary disputes, and otherwise minor offenses.
They followed fairly simple procedures with the goal of
finding a basis for a voluntary settlement based on mutual
consent of the disputants.
With a status that approximated a court of law, a
tribunal’s decision could be appealed ultimately to the king
himself. Their use declined precipitously after the arrival of
the Dutch and the British. At one point, the British tried to
revive the system but were unable to recreate the informal
nature that had prevailed at the time of the Sinhalese kings.
13
A S I A N P E R S P E C T I V E S S E M I N A R
Sri Lanka’s government tried again to organize an informal
system in 1958. The government set up conciliation boards
and then stipulated that the board was the place where all
civil disputes and minor criminal offenses were to be
resolved. The boards ultimately disbanded in 1978.
Appointments and removal of panel members had
become very politicized apparently due to a legal clause
that allowed the minister to remove someone without
making a case. Another obstacle
was the lack of training for panel
members or technical framework
for actually addressing disputes.
Then, there was the problem of
jurisdiction beyond the ability of
the lay persons who sat on the
boards and the misapplication
of the power to summons.
Ultimately, the public lost
confidence in the outcomes as
well as in the panels’ competency
and their ability to be impartial.
The Mediation Boards
Program that was established
thereafter was constituted with a deliberate effort to over-
come the flaws in the original system. As a result, effective
mediation has been institutionalized in a legal framework
and with an independent system for accountability. Boards
are able to resolve disputes that have been referred by
individuals, by the courts, and by the police. They handle
disputes that involve movable and immovable property, the
collection of bank loans, disputes between family members,
and matters involving pettytheft. Broadly stated, their goal
is to handle minor disputes wherever possible without inor-
dinate delays and in an atmosphere that promotes mutual
agreement. Legally, they are expected to resolve a dispute
within three months. Mediators adhere to this deadline
and have come to regard it as a crucial aspect of the
process’ integrity.
Disputants are not allowed to have lawyers present
their cases, nor are statements made before a board admissible
in a formal court proceeding. Boards, which are made up of
volunteers, tend to meet once or twice a week and usually
on weekends or after hours during the week in a variety of
public buildings and schools.
Each board is represented
by 12 to 30 mediators and a
chairperson. The Mediation
Board Commission selects the
chairs from recommendations
made by the trainer coordinators.
A board’s caseload ranges from
minor criminal offenses, assaults,
drunken and disorderly behavior,
boundary disputes, and more
recently to disputes between
debtors and commercial banks.
Very few cases involving family
issues come up for review.
Mediators speculate this is
because any sense of privacy is often elusive while mediation
is in progress.
A recent mediation involved a dispute between a single
mother, her daughter, and son-in-law. The mother wanted
the young family to move out and to that end had bought
property for the young couple to live on. But the son-in-law
refused to move, which led the mother to argue that his
presence was having a detrimental effect on her teenage son.
It came out that the son-in-law, while drunk, had made
improper advances toward his mother-in-law. As the mother
told her story in a whispered voice, those listening began
moving in closer. When the son-in-law argued that the
alternate location was not acceptable, a voice from the
14
Informal mechanisms
for dispute resolution
are not only less costly
and more accessible
to average individuals,
they also are better
suited to the speedy
resolution of disputes.
15
back of the room blurted out, “Oh no, it’s a lovely piece of
land. You should take it.” This difficulty to get people to
discuss personal matters is a drawback to an otherwise very
successful program and should be addressed. Measures should
be put in place to insure at least a degree of confidentiality.
Another drawback in maintaining an entirely voluntary
mediation program is the fact that mediators have no formal
way to force the party being challenged to show up for a
hearing. Since the voluntary nature of the mediation process
is crucial to its success, no effort thus far, has been made to
formalize participation.
Mediation has been very successful in resolving disputes
that involve bad debts. Anecdotal evidence suggests a success
rate of as high as 90 to 95 percent. In fact, commercial
banks have started turning to mediation boards to resolve
nonpayment of loans that often are higher than a board’s
allowable limit. It turns out that both the banks and defaulters
are willing to appear before a mediator because both want
an agreement for repayment based on a time frame the
defaulter can afford. Still, there are times when no resolution
can be reached. In that case, a nonsettlement certificate is
issued and the disputant is referred back to a traditional court.
Two recent developments augur well for the broader
acceptance of mediation in Sri Lanka. With technical
assistance from the Ministry Mediation Boards Program,
lawyers, scientists, and environmental activists are being
trained in mediation techniques by the mediator trainers of
the Ministry of Justice. This is the first nongovernmental
mediation initiative in Sri Lanka and represents a unique
collaborative effort between an environmental NGO and
the Ministry of Justice.
The second development flows from a decision to extend
the boards’ work to areas in the north and in the east. In
one of the areas, in the east, for example, there is concern
that security worries are causing people to abandon their
property. There has been a significant amount of encroach-
ment as a result, contributing to one of the more pervasive
problems of the time and consequently a number of court
cases. It is here that mediation could end up as a very
effective avenue for redressing these and similar disputes.
Amid the tension and security considerations that affect
the north and east, the establishment of boards in these
areas could mark an important turning point. Informal
mechanisms for dispute resolution are not only less costly
and more accessible to average individuals, they also are
better suited to the speedy resolution of disputes. This should
augur well for future development and for fostering confidence
in the administration of justice in both the north and east.
Even as it expands into new areas, the program contin-
ues to do what it does best, namely to resolve disputes in a
timely and fair fashion. And now by offering the service in
the northern and eastern provinces, the mediation program
can lay claim to providing all citizens of Sri Lanka with the
dispute resolution system that was envisioned in the act that
created it more than 10 years ago.
A S I A N P E R S P E C T I V E S S E M I N A R
Concluding Remarksby AMBASSADOR TERESITA C. SCHAFFER
16
However one characterizes Sri Lanka’s problems, there
is general agreement that a solution must be found to
the ethnic strife that is tearing this country apart. In fact, the
most pressing issue confronting Sri Lanka today is the task
of resolving its ethnic conflicts.
In all probability, a solution will have to involve direct
dealings and/or negotiations with the Liberation Tigers of
Tamil Eelam (LTTE). That said, I am of the opinion that the
chances for consensus are fragile. There is limited interest in
negotiating directly with the LTTE despite the widely held
view that they must be dealt with.
There are several key issues driving this set of circum-
stances. The first, as highlighted by Dr. Saravanamuttu, is
whether the problems of ethnic conflict spring from the
conflict per se, or whether they should be considered
terrorist activities. Both are factors in my opinion.
Of course, the ethnic dimension is the more fundamental
of the two. But terrorism remains the weapon of the weak
and all too frequently the weapon of those with a somewhat
perverse agenda. And that describes the LTTE.
As has been pointed out, the LTTE has a practice of turn-
ing its back on any kind of incremental progress. That is
apparently because from their point of view, any progress to
date has not produced the results they wanted — or were
comfortable with — or offered their leaders an attractive
enough outcome.
The second issue has to do with whether the conflict
requires a political or a military solution. In my view, the
military dimension is indispensable to any solution, even
though great failure has tarnished the role the military has
played since 1983.
Their efforts in the area of real estate have met with
some success, however. Starting in the summer of 1995,
the army has controlled Jaffna and Killinochchi, the two
population centers on the north of the island, and left the
LTTE with a much smaller and less heavily populated area
of scrub jungle for its territorial base.
Attempts to take over the LTTE’s home base have not
been quite so successful. In fact, the strategy has created a
new problem by stretching the military quite thin. Troops
have been transferred out of the ethnically mixed east, to
conduct the military campaign and to protect the newly
controlled areas. As a result, security in the east — where
a precarious normalcy had begun taking hold in late 1994 —
has deteriorated sharply.
Still, a military solution is not a solution unless it also
addresses and then resolves certain political issues. Even if
the army were to find itself suddenly in full control and
security was not precarious in the east, Sri Lanka still would
have to figure out how to win agreement on the ground
rules for governing.
Another concern is whether the situation in Sri Lanka
reflects an ethnic conflict or a constitutional dilemma.
Again, both issues are relevant, indeed more closely
intertwined than even the need for a military and a political
dimension to any solution. As Dr. Saravanamuttu said with
great eloquence, the focus during the first 30 years or so of
trying to solve the problem, has been almost totally on a legal
and constitutional means for a solution — at the expense of
the ethnic dimension in its rawest form. It now is time to
correct that — but not at the expense of the legal and consti-
tutional issues.
Consider the notion of devolution, which is the preferred
buzzword over federalism. (Here in Washington, D.C., which
is almost as far from Sri Lanka as
we could be, we can say quite
forthrightly that both devolution
and federalism reflect the exercise
of control at a level below that of
the central government.)
The notion of devolution is
complicated further in Sri Lanka’s
case by the question of whether it
should occur in a symmetrical
way, or whether governance should be divided proportion-
ately and between parts of the country that are primarily
Sinhalese and those that are primarily Tamil.
Again, as Dr. Saravanamuttu explained, the LTTE’s
likely point of view — provided its leadership could even
be brought around to the notion of devolution — would
involve questioning what the sacrifice has been for if indeed
they were to end up with little more than a chief minister
in one area or another. In all likelihood, a number of Tamil
leaders share this view.
Nevertheless, one government after another has determined
that they would not be able to win the critical support they
need from the Sinhalese side of the ethnic divide for any
arrangement that gives the Tamil community “privileges”
that are not similarly extended to the Sinhalese majority.
Still another factor is the limited, and some would say
phony, devolution that has occurred to date. Devolution has
not delivered much in the way of local power or authority.
In fact, a sizeable segment of mainstream opinion suggests
that efforts at devolution have been a colossal waste of
money. Many regard that what is in place as succeeding
at little more than the extension of patronage to political
parties at the state level.
Any solution will not be simple. Still, there are at least
three lines of thinking that frame circumstances in ways that
render them more understandable
and hopefully more amenable
to a solution. First, the ethnic
conflict will not be resolved
until there is a political and
constitutional solution. Part
and parcel will be an agreement
on the kind of ground rules
that are needed to define the
government and the relations
that exist at the political level among communities.
Second, certain steps are necessary just to get to the
point of being able to resolve the conflict. For years, the
LTTE’s position has been the need for an independent Tamil
Eelam. That may have some superficial appeal in this day of
breaking up multi-ethnic empires. At the same time, it seems
inconceivable that the government would ever agree to a
plan for separation. Aside from the northern tip, no neatly
defined ethnic populations exist on the island. In the north,
the population has been close to 100-percent Tamil ever
since the LTTE expelled the Muslim population that was liv-
ing there. A significant Sinhalese and Muslim population
lives in the east and every Tamil leader, including those who
try to work with the government, claims this area as belong-
ing to the Tamil homeland. Large numbers of Tamils also
live in Colombo and Kandy, while the “Hill Tamils” work
the plantations at the center of the country.
17
A S I A N P E R S P E C T I V E S S E M I N A R
The ethnic conflict will
not be resolved until
there is a political and
constitutional solution.
1818
This arrangement of ethnic populations would appear to
rule out any “separation” option. If that doesn’t work, one
has to make sure that the LTTE is pulverized. But the lessons
of history suggest that this, too, is an unlikely outcome. Sri
Lankan authorities have never even come close to doing in
the LTTE. Certainly, the army has not come close — and any
attempt to finish them off probably would spur new recruits
in those parts of the country where the LTTE is the weakest.
Even those Tamils who deeply disagree with the LTTE’s
methods, grudgingly admit that at least “the boys have
put us on the map.” That is very disconcerting to hear.
But it leaves us with the third line of thinking, namely
that a possible outcome has to embrace a constitutional
amendment. This would mean the country remains in one
piece while requiring the absolute integration of a political
and military strategy.
Here, I take note of the government’s attempts to do just
that during its first year in office; the fact that negotiations
came to naught; and the LTTE’s decision to head back into
the battlefield. Since then, very little has happened to again
join the issue with the LTTE. Any political movement has
been entirely on the government’s side of this great divide.
The effort has amounted to a rather painful process of
trying to inch the peace package forward. Time and again,
political difficulties and sensitivities of one sort or another
have interrupted the process. This fact alone may have
caused a fatal loss of momentum for the package. I would
welcome being proved wrong on this point. I believe these
proposals could and should be the basis for serious discus-
sion. But it remains a separate question whether any final
arrangement will reflect these proposals. Instead, it seems
very important at this juncture to find a format for engaging
the process that then can lead to resolving the issues.
My fear is that this potential is not close at hand, at
least at the moment. I wish it were otherwise. Sri Lanka
deserves better. This country has suffered desperately from
the holocaust that has been perpetuated by its leaders, starting
with the LTTE’s assassination of national leaders. These
assassinations are indeed one of this struggle’s saddest
consequences. Admittedly, those responsible for violence
in circumstances like these cannot always be traced. But it
is certain that the LTTE has been involved to a significant
degree. At the same time, leaders on the Tamil side also have
died or been disabled politically.
In a better-ordered universe, those who were assassinated
might very well have provided the keys for working out an
arrangement to resolve the conflict. To be sure, there are
not a whole lot of people left with the standing and the
ability to do the very hard work that is needed to move
the peace process forward.
Questions and Answers
19
A S I A N P E R S P E C T I V E S S E M I N A R
Panelists
Paikiasothy Saravanamuttu, Executive Director, Centre for
Policy Alternatives
Ambassador Teresita C. Schaffer, Director of the Center for
Strategic and International Studies’ South Asia Program
Q Please comment on the Sri Lankan government’s
experience in negotiating with the Tigers as well as
with minorities generally.
Dr. Saravanamuttu: Until armed hostilities broke out, there
was an attempt to reconcile majority and minority interests
with agreements and pacts. The effort was an attempt to put
the relationship on an institutionalized footing. What resulted
was an elite consensus. These agreements, once made public,
were torn up and, of course, never implemented.
In the period following the outbreak of armed conflict in
1983 to 1987, when the Indian government intervened and
devolution was introduced for the first time in Sri Lanka,
negotiations became more of a sideshow than a route to a
resolution. The government was set on a military solution
and was not interested in sharing power. The most serious
negotiations with the LTTE occurred around October 1994
and lasted until April 19, 1995.
On the government side, the first problem that developed
was the result basically of arrogance and naivete in thinking
that the LTTE came to the negotiating table, committed to
finding a solution. The government fell into the trap of
believing the LTTE’s argument that there must be confidence-
building measures before the LTTE would embrace a cease
fire and talk about a political solution.
I say this was a trap because I feel that it is necessary to
assume from the outset that the LTTE is not interested in
negotiating a solution. If they come to the negotiating table,
it is a tactical ploy. This means that the real challenge in
negotiating with them is to keep them at the negotiating table
and from the outset, not allow them to set the agenda.
So, if one were to ask what the pitfalls are when it comes
to negotiating with the LTTE, I would say the key point is
that negotiations are for the purpose of reaching a political
settlement to a political problem. The LTTE will talk about a
whole range of confidence-building measures and link
progress to these measures just to avoid talking about the
real, core issues of a political settlement. This means that
talks based on a single issue are a much better plan than dis-
cussing a range of issues that are of secondary importance.
Q Comment about the role of the Buddhist clergy and
how they have or have not affected the negotiating
process with the minority communities.
Dr. Saravanamuttu: By and large, the Buddhist clergy has
been singularly unhelpful with regard to negotiations and
devolution in the whole conflict resolution process. This is
unfortunate. The clergy identifies itself with the notions of
majoritarian democracy and with the Sinhalese community.
In fact, the chief priests have come out in a number of
instances and said categorically that there should be no
negotiations with the LTTE. They have advocated no elections
and other “distractions” from the main objective, which they
maintain should be the prosecution of the war against the
Tamil Tiger terrorists.
So any notion that the Buddhist clergy might play a role in
achieving a political resolution to the conflict is misleading.
When the government came forward with its devolution
package, it looked initially to the clergy’s more liberal-minded
members for support. Some did express support. But what
resulted was a heightened politicization of the clergy in a
country where since 1972, Buddhism has been accorded the
“foremost place” in the constitution.
An interesting anecdote with respect to the Buddhist
clergy and the devolution package is that the government,
realizing that the clergy is a key constituency, sought its
support by offering them a sweetener. This was in the form
of a council of priests to advise them on all matters relating
to Buddhism and a range of social and development issues.
However, the priests ended up saying, “Thank you very
much. We understand this to be our rightful due, and we do
not intend to support devolution, anyway.”
Buddhist priests and particularly the high priests are
more likely to be associated with opposition to devolution
and sharing power with minorities than with a push for
a political solution based on constitutionally guaranteed
ground rules for the relationships between the majority
and the minority.
Q How is majoritarian democracy in the Sri Lankan
context defined?
Dr. Saravanamuttu: The debate is very much in flux, and the
notion that the state will provide for all its citizens is still
accepted. What this means in practice and on what terms and
what grounds the state will provide, is still subject to debate.
I feel strongly that the movement is away from discrimi-
natory criteria, like ethnicity, quotas, and reserving certain
places for certain people. There is the notion emerging of
the state as a facilitating framework for partnership with
the private sector and with other actors in civil society.
However, for any such partnership to develop and be
successful, there also must be mutual respect and confidence.
That said, I think the notion of majoritarian democracy
generally has taken a beating, even though this debate is
yet to be concluded.
Q Because the leaders of the LTTE seem to be central
to the LTTE’s advancing any position, could out-
comes be different if the leadership changed?
Dr. Saravanamuttu: I firmly believe that serious issues stem-
ming from the ethnic conflict are serious regardless of who
heads the group. It is wishful thinking to say if the leadership
changes, a solution might present itself overnight or, if not
overnight, then in the next couple of weeks.
The issues are far more serious, particularly those that
address the need for ground rules to govern relationships
between the majority and the minorities. These are far more
serious than a solution involving a change in the LTTE’s
leadership might otherwise imply. For example, I do not
think that getting rid of Vellupillai Prabhakaran is the
necessary or sufficient condition for resolving the conflict.
The conflict is much wider and much deeper.
Ambassador Schaffer: I agree that this is fundamentally an
ethnic conflict. But a significant part of it is also a terrorist
problem and influenced by the temperament and outlook of
those leaders who are involved. That said, there is a blind
spot on the part of the Sinhalese when it comes to the depth
of the ethnic dimension of the problem. Let me illustrate that
with an anecdote:
While serving as ambassador, I had a visitor from
Washington, D.C. who is a distinguished American and who
participated in Middle East negotiations during his government
career. Since leaving government, he had gotten involved in
so-called Track II, nonofficial diplomacy. We were having
20
lunch with an ethnically mixed group, who included people
from government, the political parties, and the foreign
policy establishment. My American visitor talked about
his experience in other parts of the world and generally made
an effort to understand the Sri Lanka issue in greater depth.
To that end, he asked what relations are like between the
two communities, the Sinhalese and the Tamils.
Of course, I was listening carefully, but especially because
at least one of the Tamils at the
gathering recently had unloaded
about the kinds of petty harass-
ment and discrimination that even
he, a card-carrying member of
the establishment and his family
had encountered. Then one of
the Sinhalese members of the
group, an otherwise sensitive
and compassionate individual,
replied to the guest’s query.
“You know this really isn’t an
issue,” he said. And no one else
said a word, which I found all
very revealing.
That said, Mr. Prabhakaran
has been on the run since
he was 18 years old. He knows relatively little of the world
outside of Jaffna. He is said not to sleep in the same place
two nights in a row. His entire engagement in this struggle
has been a violent one. People who have met him, which I
obviously have not, say that his thinking is very much guerilla-
style and military oriented. He certainly ran an autocratic
and authoritarian quasi-state in Jaffna in the days when he
was running one.
His removal would not in any way provide an automatic
solution. Nevertheless, I am not at all sure that he is capable
of the kind of political turnaround that say, Yassir Arafat was
able to gin up in the Middle East. I would enjoy very much
being proved wrong on this.
Q I’m hearing a rather despairing point of view, partic-
ularly if the prerequisite for a solution is changing
the mindset on both sides. My reading, too, is that this will
be extremely difficult, given the current stalemate. Still, there
seems to be a possibility that this conflict ends up as the
catalyst for democracy and
democratic structures. Could
you comment?
Also, an offshoot to my
question concerns human rights
in Sri Lanka. Given the documen-
tation of the military’s part in a
number of serious violations,
can the military fit into any
proposed solution?
Dr. Saravanamuttu: On the point
of the conflict serving as catalyst
to a resolution and for greater
democratization, my feeling is that
any political solution will have to
lead to the establishment of more
pluralistic institutions and structures of government. There is
no alternative — no other option than a political solution.
With regard to the military, I do not accept the argument
that the military is a threat to democracy in Sri Lanka. My
experience with the military is that this is a constituency
whose members (particularly the middle level officers) articulate
an important point of view, namely that the military only can
do so much without the complement of a political solution.
That said, there still has to be a fairly effective calibration of
the political and military components of a solution.
The subject of human rights will be taken up by a
21
A S I A N P E R S P E C T I V E S S E M I N A R
Any political solution
will have to lead to the
establishment of more
pluralistic institutions
and structures of
government. There is
no alternative — no
other option than a
political solution.
subsequent speaker. But I would comment that there has
been improvement. This government is concentrating on
improving human rights in Sri Lanka, and, in fact, has
signed a number of conventions and agreements that entail
reporting to international bodies. There is also a great deal
of transparency with regard to human rights. Still, there is a
long way to go I grant you.
The only way to succeed is if the media begins to play a
much more important role on this score. We have a three-
language media, and it is important to raise awareness of
human rights in the majority Sinhala-language media. Time
and again, I have said that the average Sri Lankan has seen
more of the pictorial evidence of the horror and destruction
in Bosnia, Rwanda, Burundi, and Somalia than he or she has
seen of the situation in the north and east of Sri Lanka. This
is a tragedy.
Q What about an approach that would strengthen
the hand of other factions and in effect subdue
the LTTE? Second, will the motivation to break the present
deadlock come from within Sri Lanka or the outside?
Dr. Saravanamuttu: Let me answer the second question first.
The only political solution that has come out of this conflict
occurred in 1987. At the time, India had intervened and
devolution was put on the agenda, along with the establishing
of a provincial council. At this time, donor countries began
advancing an economic argument, saying, “Look, we are not
going to pour money into this country unless you resolve this
conflict. You are going to have to get together, and it cannot
be done militarily.”
My point here is to underscore that external sources have
tried to influence outcomes and have continued to push us
toward an agreement of one sort or another. Not only does
Sri Lanka have to be receptive, the influences from the outside
have to be sufficient to move the two parties together. So far,
this has not been the case. As things stand now, the president
has said consideration will be given to a third-party facilita-
tion if and when negotiations with the LTTE are scheduled.
In this instance, the level of mistrust between the two sides
is so great that external parties indeed could play a very
helpful role.
With regard to the point concerning terrorism, it is my
opinion that in the area of conflict resolution, culminating
in a negotiated political settlement, it is not helpful to focus
on the conflict’s terrorist dimension. There are a number of
reasons, but let me give you one by way of explanation.
From 1987 to 1989, there was an insurgency in the south,
exacerbated by the fact that an Indian peacekeeping force
had been brought into the north and east. The insurgents
demanded that these forces be removed. By December 1990,
the insurgency had been put down. Let me explain how.
It was squashed with a killing ratio of 10 to 12 insurgents
to one member of the security forces. The leadership of the
insurgents was wiped out. The average citizen who lived
through this could well ask why the terrorist problem in the
northeast cannot be handled in the way it was handled in
the south. The southern insurgents also were characterized
as terrorists. But were the government to follow this path, it
would compound the ethnic problem. It also would serve the
purpose of Prabhakaran, who maintains that the government
is intent on killing Tamils and that its strategy of conflict
resolution amounts to no more than this.
This is a serious problem. Another factor is that we do not
seem to have in place the political structures that can resolve
the conflict. The whole process of conflict resolution will be
threatened with derailment if the powers insist that the ethnic
conflict is only a terrorist problem.
Q Please elaborate on the internal political dynamics
that are in play in the Tamil community, in particular
the extent to which Tamil groups and organizations that are
22
not associated with the LTTE are able to operate and represent
the Tamil community. Does the LTTE, for example, tolerate
other Tamil organizations participating in negotiations?
Dr. Saravanamuttu: No, the LTTE does not tolerate other
political organizations. In fact, the LTTE basically
has killed its way to its present position as the principal
protagonist on the Tamil side of the conflict. But other
organizations do exist. What
should be understood is that after
independence in 1948, there was
a consensus among the elites in
Sri Lankan politics that the par-
liament and parliamentary
democracy provided the appropri-
ate forum for resolving conflict.
However, this position was
discredited when the elites
were unable time after time to
come up with an adequate solu-
tion. Also, the lawyers, profes-
sionals, and middle class repre-
sentatives of the Tamil community were unable to maintain
their preeminence as the politics of ethnicity drew in more
youth — and in due course, became more militant.
A key event occurred in 1983 after the horrific anti-Tamil
riots. The government brought in the 6th Amendment to the
constitution, which proscribed secession. All members of the
national legislature were required to swear an oath against
secession. This applied to Tamil parliamentary representa-
tion—which refused to do so and walked out. In effect, the
result of this was that the site or forum for conflict resolu-
tion shifted from parliament to the battlefield. (The
Tamil United Liberation Front or TULF was the principal
opposition party in parliament following the 1997
general election.)
Currently, there are a number of other organizations
that have come into being and that are having some impact.
Apart from the TULF, the principal organization is the Eelam
People’s Democratic Party (EPDP), sometimes called “half
democrats.” They are former militants, who gave up armed
militancy in 1987 when devolution was put on the statute
books, and now want to be part of the political mainstream.
They face a serious problem. They justify giving up militancy
with their position that from
within the mainstream, they can
obtain a settlement for the Tamil
minority that is preferable to any-
thing Mr. Prabhakaran can
achieve on the battlefield.
Unfortunately, these former
militants have nothing to show
for their renunciation of militancy
as far as a political settlement is
concerned. In January 1998, there
were local government elections
in Jaffna. All the parties partici-
pated. The LTTE called for a boy-
cott of the elections. In the course of monitoring these elec-
tions, we discovered that the ex-militants did not campaign
against the LTTE but on a platform that drew attention to the
government’s devolution package as insufficient. They also
seemed keen to make out that they were okay with the LTTE
and were not engaged in military action with the government
against the Tigers.
There is a serious problem here. Can these groups be a
bridge to the LTTE? If so, will they eventually be swallowed
up by the LTTE or can they be expected to act as a bulwark
against the LTTE? To do the latter, they need to develop sub-
stantial credibility on the ground. This is not the case now,
unfortunately. The non-LTTE Tamil political representation
needs help from the government of the day in fundamental
23
A S I A N P E R S P E C T I V E S S E M I N A R
The LTTE basically
has killed its way to its
present position as the
principal protagonist
on the Tamil side of
the conflict. But other
organizations do exist.
ways, and this is a position of weakness. When you must
rely on the government of the day to achieve your political
objectives and the government in turn has to rely on the
opposition, then you really are not in control of your
destiny. As far as I can see, this is ultimately a position
of serious weakness.
Q Please elaborate on your point about civil society
operating through politi-
cal parties, specifically as it affects
the pursuit of peace in a long-
standing violent situation. For
example, have party conferences
contributed to the creation of new
groups that can challenge these
old patterns?
Dr. Saravanamuttu: Yes, there
are groups that are identified
and defined in terms of their
peace constituency. But the
problem is they do not constitute
a critical mass. They cannot turn
people out for a mass demonstra-
tion on behalf of peace, for
example. There are small
pockets of people, but nothing that is very coordinated.
That said, I also think we are at a particularly
dangerous point because the government has launched
a program that basically supports its devolution package
and in the process, has co-opted a number of people
from civil society. The program intends to inform and
educate people about devolution, and the danger is that
the whole exercise will have a partisan/party political
dimension to it.
There is another problem. This has to do with the notion
of a majority with a minority complex and the associated
feeling of being besieged — Sri Lanka belongs to us; it is our
land; the rest of the world does not accept this and is against
us. Stemming from this is the notion that the international
community has been hijacked by the Tamils and that
peace groups generally are being funded by foreign, non-
governmental organizations that operate based on their
own agendas.
Xenophobia and populism are
part of this sentiment.
For example, the NGO Forum
on Sri Lanka Europe, held
its meeting in 1995 in Colombo.
People who were major
supporters of the government
were involved in the Forum, but
they were beaten up. The meeting
had to change location thrice
because of disruptions. There
was a feeling that the NGO
Forum would draw attention
to the refugee problem arising
when government forces entered
the northern Tiger stronghold
of Jaffna and that as a conse-
quence, international pressure
would be brought to bear on the government to prevent it
from taking over Jaffna.
Q Can the LTTE really continue to exist outside a revo-
lutionary context? Also, the conflict resolution
process now in effect exists because of a basic belief that the
conflict is ethnic in origin and that the terrorist angle evolved
in 1995. Could you please comment?
Dr. Saravanamuttu: Given the nature of the LTTE and the high
We are at a particularly
dangerous point
because the government
has launched a program
that basically supports
its devolution package
and in the process,
has co-opted a number
of people from
civil society.
24
probability that it will never change, one has to conclude that
while peace with the LTTE may be desirable, peace may only
be possible without them. Fifteen years have been spent trying
to solve this problem on the battlefield and, so far, little if any-
thing has happened to bring the conflict to an end.
I begin from a position that maintains we do not have
an option here. Peace may not be attainable in full measure,
but we must explore the possibility with all sincerity and
look seriously at what it can yield.
That said, I would like to make a couple of points about
the nature of the LTTE. Mr. Prabhakaran feeds on war and
conflict. The LTTE feeds on war and conflict, and it is this
context of conflict that sustains them. The challenge is to
create another context in which there will be no grounds
for them to claim that the Tamils are being subjected to an
“army of occupation” and have to go to Colombo to seek
justice and to beg for resources. We have to be able to change
the rules of the game. Now, Mr. Prabhakaran and the LTTE
are setting the agenda despite the fact that they have killed
Sinhalese and Tamils without compunction.
There was a reference made to the attack on the Buddhist
Holiest of Holies, the Temple of the Tooth in Kandy, and also
to the assassination of the elected mayor of Jaffna. In both
instances, the LTTE was making the political point that any
attempt to try and resolve the conflict without them or by
working around them — any attempt that does not take them
into account as the principal protagonists on behalf of the
Tamils — is bound to fail. They are saying, “We will make
sure it fails. We will blast our way — bomb ourselves onto
the agenda. We will kill mercilessly if we have to.”
If you recall, there was a plan to hold the 50th anniversary
of independence at the Temple of the Tooth. The idea also was
for the military offensive to have opened the supply route to
the north from the south by that time. There was also to be
this great tamasha on Independence Day, February 4, followed
by a consultative referendum on the devolution package in
April. Mr. Prabhakaran totally wiped out any chance for that.
With regard to the assassination of Sarojini Yogeswaran,
the mayor of Jaffna, the rationale appears to have been to
negate the impact of something the government hailed as a
great victory for democracy. Mrs. Yogeswaran’s election,
after all, did represent for many of us, the true beginning of
a process of normalcy and democratization on the Jaffna
peninsula. In one of her last interviews, Mrs. Yogeswaran
was quoted as saying that her election had been largely a
public relations exercise and that insufficient funds had
been allocated for the administration of Jaffna.
As far as the LTTE was concerned, their point was quite
simply that if you even begin to contemplate an alternative
political leadership in the north, you will find that you have
been quite mistaken because it means you have overlooked
the LTTE. These are the rules that they play by.
Q Is it your opinion that the government’s devolution
package is good enough and that it provides an
adequate basis for a solution? Or does the package have
substantive problems?
Dr. Saravanamuttu: The devolution package that is before us
is unprecedented in that it is the first time any political party in
Sri Lanka has come forward voluntarily with these proposals.
And they are a solution in that they represent a quasi-federal
package. Now, I have two problems with the package. I sup-
port it because I think it can be the basis for discussion and
negotiation. It should not be viewed as if it were carved in
stone. There is more that I would like to see included.
Here, I would like to make the point that the way in
which devolution has been presented suggests that a calcula-
tion was made that if the Tamils are to have devolution, the
Sinhalese must have it too and in equal amounts — or else
they would not agree to the Tamils having any devolution at
all. It is an odd situation really, to respond to ethnic conflict
25
A S I A N P E R S P E C T I V E S S E M I N A R
with constitutional reform that attempts in effect to negate
the ethnic dimension to the conflict.
I do not think that the LTTE or any other Tamil political
party would be satisfied in the end with the same powers as
a Sinhalese politician in the south or northwest, especially
after they have fought so hard and for so long, suffered and
demanded so much sacrifice and deprivation. So, I would
like to see an asymmetrical dimension to the devolution.
This would be a more feasible and viable approach to
resolving the ethnic conflict. Furthermore, in terms of the
actual powers that are devolved, the balance of power should
be weighted toward the provinces and away from the center.
Personally, I would like to see a more explicitly federal
package. However, the government has shied away from that
on the grounds that in Sri Lankan politics, like in England,
federalism is a dirty word. Ironically, the government is being
criticized by chauvinists and hard-line conservatives who
label the devolution package federalist anyway. I do not
understand why they do not just come out and say, “Yes, it
is a federal package, and we require such a package if we
are going to get any kind of agreement or resolution to the
ethnic conflict.”
So, the package has qualified support. It is to be greatly
welcomed in so far as no other political party has come out
with anything like it before. It represents a radically new
departure, although it does not yet fully meet the require-
ments of the political situation at hand or the outline of an
appropriate and suitable constitutional settlement.
26
A S I A N P E R S P E C T I V E S S E M I N A RA S I A N P E R S P E C T I V E S S E M I N A R
Asian Perspectives Series publications are produced
by The Asia Foundation’s Office of External Relations.
Contributing editor: Dr. Marsha J. Vande Berg
Dinesha de Silva
Assistant Representative, Sri Lanka The Asia Foundation
Dinesha de Silva is Assistant Representative in Sri Lanka for The Asia
Foundation. She is responsible for the management and administration of
the office, its grant portfolio and programming direction. Ms. de Silva was
instrumental in negotiating on behalf of The Asia Foundation a two-year
human rights initiative with USAID.
Prior to assuming her responsibilities as Assistant Representative,
Ms. de Silva was the Law and Media Program Director for The Asia
Foundation’s Citizen Participation Project. The project was designed to
strengthen democratic processes that enhance opportunities for citizens to
address fundamental social, economic, and political needs.
She also has served as a project management specialist for USAID’s
Office of Private Sector Development, an economist with the Environmental
Foundation, Ltd., and a staff economist at the Central Bank of Sri Lanka.
Ms. de Silva received a BA degree in economics and political science
from Georgetown University and an MA in economics from Columbia
University.
Prashanthi Mahindaratne
State Counsel, Attorney General’s Department
Prashanthi Mahindaratne is with the Attorney General’s Department,
attached to a special unit, which deals with white-collar crime and what
in Sri Lanka are described as war crimes. As State Counsel, she conducts
criminal prosecutions in cases as varied as homicide and white-collar
crime. Ms. Mahindaratne, a Hauser Global Scholar, is reading for a
Masters in Law in International Legal Studies at the New York University
Law School.
Ms. Mahindaratne conducted the investigation in 1996 and assisted
in the prosecution in 1997 of a multiple murder case, which involved a
Jaffna student and three members of her family. This groundbreaking
lawsuit represents the first time in Sri Lanka that military personnel have
been tried and found guilty of human rights abuses.
Ms. Mahindaratne also represented the Attorney General on the
Parliamentary Select Committee for Constitutional Reform. She has pre-
sented a paper on liberalizing the laws covering abortion for the Law
Review and the Annual Scientific Sessions of 1997, which were organized
by the Medico-Legal Society of Sri Lanka.
She graduated with First Class Honors from Sri Lanka Law College
in 1990. She also holds a diploma in Forensic Medicine and Science from
the University of Colombo.
Paikiasothy Saravanamuttu
Executive Director, Centre for Policy Alternatives
Paikiasothy Saravanamuttu is the executive director of the Centre for
Policy Alternatives (CPA), an independent public policy institute in Sri
Lanka. He is a member of the Foreign Affairs Study Group of the Foreign
Ministry of Sri Lanka and of the Advisory Committee of the Free Media
Movement and the Movement for Inter-Racial Justice and Equality.
Dr. Saravanamuttu is a visiting lecturer at the University of Colombo
and the Bandaranaike Centre for International Studies. He has worked as
a research consultant with the International Centre for Ethnic Studies
(ICES) and the Centre for Policy Research and Analysis (CEPRA) at the
University of Colombo. He writes a column on politics for the Sunday
Leader newspaper. He also is quoted widely in the international print and
electronic media.
Dr. Saravanamuttu received his Ph.D. (1986) and his Bachelor’s
degree (1979) in International Relations from the London School of
Economics and Political Science, University of London.
Ambassador Teresita C. Schaffer
Director, Center for Strategic and International Studies’
South Asia Program
Teresita Schaffer is the Director of the Center for Strategic and
International Studies’ South Asia Program. From 1992 to 1995, she
served as the U.S. ambassador to Sri Lanka.
As ambassador, she led the dialogue on human rights between the
Sri Lankan government and its aid donors. She also worked closely
with the Sri Lankan government on proposals for peacemaking and
constitutional changes.
Before she was named to her post in Sri Lanka, Ambassador Schaffer
served as the State Department’s Deputy Assistant Secretary for South Asia,
Country Director for Egypt and Director of the Office of International
Trade. She also served as Director of the State Department’s Foreign
Service Institute. An expert in the Middle East and trade policy,
Ambassador Schaffer retired in 1997 from government service.
Ambassador Schaffer is the author of “Sri Lanka: Lessons from the
1995 Negotiations,” a chapter in a forthcoming collection of articles to
be published by Harvard University Press. In 1998, she co-authored
“Better Neighbors? India and South Asian Regional Politics” with
Howard Schaffer in the SAIS Review.
She did her graduate study in economics at Georgetown University
and received her BA degree in European history from Bryn Mawr College.
The Participants
29
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