Prof. N. Selvakkumaran, Dean, Faculty of Law, University of Colombo
Delivering the Sir Ponnambalam Arunachalam Commemoration lecture this week in Colombo, Prof. N. Selvakkumaran, Dean, Faculty of Law, University of Colombo, says there is a necessity for major constitutional and legal reforms in the post-conflict Sri Lanka so that the negative peace that is prevailing now can be transformed into a positive one. Excerpts from his widely-hailed speech.
We are gathered here to cherish the memory and 159th birth anniversary of a great statesman and distinguished personality this country had produced. The late Sir Ponnambalam Arunachalam, of whose birth and life that we remember today, was born in 1853 to a very well-known and highly respected family in Manipay, Jaffna. Sir Ponnambalam Arunachalam was the youngest of three equally eminent brothers, who left an indelible mark in various facets of life in this beautiful island.
Sir Ponnambalam Arunachalam's signal contributions in the legislative, executive and judicial spheres as well as in political, social and religious domains had been illuminating and constructive. It will require a lot of time and energy to capture his achievements and contributions to the mankind in general and to the betterment of Sri Lanka in particular. As you all will agree, that cannot be done in a short time and at a function like this. That has to be reserved for a separate time and event, which I would urge the Sir Ponnambalam Arunachalam Trust to undertake in earnest please. The Trust should invite researchers to delve into the invaluable contributions made by Sir Ponnambalam Arunachalam in different spheres of the Sri Lanka's life.
Let me take this occasion to reflect upon some contemporary events that took place in the country which are related to some of the ideals which the late Sri Ponnambalam Arunachalam stood for and strived to carry out in his days. The miserable and violent occurrences that unfolded in the last thirty years or so in this island would surely have grieved the heart and soul of Sri Ponnambalam Arunachalam. He would not have ever imagined or accepted, on any ground whatsoever, the bleeding of this nation in such a ferocious and barbarous manner as it endured in the recent past. However, the past is past and now is an opportunity for us to go forward and ensure that this Pearl of Indian Ocean becomes a vibrant and resplendent place to live in. That should be achieved in the shortest possible time while ensuring that the country and its people will not suffer a relapse of what they endured in their recent history.
The release of the Report by the Presidential Commission, viz., the Lessons Learnt and Reconciliation Commission, recently too provides a welcome and desirable opportunity in this respect. It requires the powers that be to take a hard and serious look at the present state of affairs in the political, legislative, executive, judicial, economic, social and other spheres; it also calls for chartering a course which will make our present and future generations to remember us with gratitude and pride, but not to curse us for failing them and the country abysmally.
The LLRC Report is a point of departure as its release provides a golden opportunity for the people of this country, in particular their representatives in the Executive and the Legislative arms of the government, to shape the future of this tiny nation to great, if not greater, heights.
Missed were many opportunities in the recent times when adversities - natural and man-made - provided window of opportunities for winning peace in the country. It is of great relief that the violent armed conflict had been brought to an end with the decimation of the ruthless LTTE and its violent activities in the country. Although there linger some issues of accountability raised about the final stages of the war, it is time for the people and powers that be to consider and act decisively as to how the country could go forward as a united nation upholding respect for democratic values, human dignity and the rule of law.
Various factors have contributed to the pathetic and sorry state to which the country fell in or sunk in the recent past. It is not my intention or wish, or is it necessary, to delve into the past minutely and engage in a blame game. That alone will not take us forward in any meaningful manner.
If we are strongly perched in the past we are sure to lose the future. While there is immense value in learning lessons from the past and addressing vital concerns that led to the failures of humanity, we need to engage ourselves collectively, as responsible citizens of this country and members of the world of human beings, in an exercise which will enable us to go forward to turn this country as a resplendent land in the world where peace and happiness will permeate the people who inhabit it.
The successful termination, almost three years ago in May 2009, of the war waged by the LTTE against the government did not bring about an enduring positive peace in the country. It is so at least in the minds of the minorities of the country. What was achieved is an absence of war and armed hostilities in the country, which is referred to as negative peace in the words of conflict resolutionists.
It is true that achieving negative peace was not an easy exercise given the ruthless and elusive nature of the LTTE. Considering the cost of achieving negative peace which was huge in terms of the loss of human lives and limbs and other damages and destruction suffered, it is essential and imperative that the negative peace achieved must be converted to sustainable positive peace, if this land were to be a peaceful country.
There are a lot of things to be done to achieve endurable positive peace in the country. Similarly there must take place attitudinal change in the minds of people. The report of the LLRC adverts to some of these important issues in making its recommendations. The report provides valuable food for thought as well as worthy suggestions; if those recommendations are properly understood and implemented efficiently, I venture to state that the negative peace achieved in the country could be made positive and permanent. It is in this context that I wish to place some of my thoughts for your reflection. In support of my views, I draw from the Report of the LLRC where it is appropriate.
The Sri Lankan society is polarized and divided at the present time. It has been so for some time now. The polarization has come about mainly due to political and economic reasons. Alleged acts of discrimination by the government against minority communities, or acts so perceived by the minority communities, have contributed to this polarization.
Some of the legislative, executive and judicial actions of the state had not evinced an approach of inclusive nation-building on the part of the post-independence governments. On the other hand, some of the actions and pronouncements of political parties of the ethnic divide had not helped the situation either. The three-decade long civil war has not done anything good towards creating an environment conducive for these societies to live harmoniously. To the contrary, it has taken a heavy toll on the minds of the people which was inevitable and unavoidable given the dynamics of armed hostilities. In addition to the direct consequences of armed conflict, the violent strife fought fiercely and savagely, with scant respect for human dignity but with its attendant ethnic dimension, has brought about indirectly many negative effects upon the communities. It is the ordinary people and civilians who have suffered the most.
The prolonged war has hardened the young minds of the ethnic divide against each other and they were moulded and coloured by the antagonism that was generated by the hostilities and their fall outs. Their sentiments and attitudes towards the others and their take on the future of this country and themselves are mainly coloured by their bitter experiences of the war which they were made to suffer during this long period of time.
The people have wounds in their minds; they have developed prejudice against one another; seeds of prejudice, hatred and antagonism are sown in their minds at an early age; there was a lack of opportunity for them to interact in a friendly and harmonious way; they feel bitter about others; they look at others with suspicion; they are not at peace with others; they are not at peace with themselves as well. In certain cases, their dealing with members of other communities had been with personnel from the armed forces or the police force. They had hardly met any civilian members of the other communities. ...
The end of the war and the consequential opening of the A9 road and the free flow of transport between the north and the rest of the country have made the situation better for people to move about with ease. However, this is not sufficient to erase the mind-set of people who have entertained negative attitudes about others to change them on their own. The government should take positive and proactive steps to create opportunities and space for interaction between young people from these communities from 'the north and the south'.
The money spent on these pro-peace activities would be worthy investment in the long run. They would create a sense of understanding and a feeling of being inclusive in the minds of young people. They will create a window of opportunity for the people of the south to see, learn and understand the traditions and culture of the north; conversely the people of the north will also see, learn and understand the traditions and culture of the south. Facilitating a better understanding of each other is a must for harmonious living in the country and peace to prevail in the country.
This apart, the people who suffered immensely due to the war - by loss of their loved ones - have deep-seated wounds in their minds. Some of them do grieve a lot in silence; others grieve openly and at times in moods of anger and hate; some of them are unable to get over their wounds as they do not know what had happened to their loved-ones. There have to be some genuine efforts to heal these wounds. Allowing them to fester is not going help in fostering a harmonious and united nation in the country. These people do not know the whereabouts of their relations. They do carry a great burden in their hearts. They know that there are large numbers of detainees who have been detained after the end of the armed hostilities. These parents and family members do not know whether their children and loved ones are amongst those who had been detained by the government or they had perished in the war or come up with their end in one way or another.
The Lessons Learnt and Reconciliation Commission provided opportunities for people to make representations and relate their 'stories of grief and victimization'; it did not, however, provide opportunities for truth telling as how the South African Truth and Reconciliation Commission did after the collapse of apartheid. While it is irrefutable that a system which worked in one country and in one context may not apply equally to another context or country, the scope of the mandate given to the LLRC was not meant to be or sufficient enough to provide an occasion for truth telling and unburdening the hearts of victims or perceived victims.
The government should seriously think about providing some space for people to relate their tales and learn the truth of what happened to them or their family members so that it will provide genuine effort at reconciliation. Otherwise there would be a sense of injustice to those who perceive that they had been wronged and that no opportunity was provided to seek redress for their injustice or perceived injustice. Transitional justice provides opportunities for people to get over their psychological trauma in a collective manner without necessarily imposing criminal sanctions on others for telling the truth.
There are different shades of systems of transitional justice. What is necessary is to make people to come to terms with the past and get along with their future; if it could be done without being burdened by the past which prevents them from going into the future in a meaningful manner that will facilitate genuine reconciliation. This is necessary if those people are to contribute positively for the future wellbeing of the country and its people.
Some of the recommendations made by the LLRC with regard to political power sharing and upholding the rule of law in the country are very valuable and instructive. Their inherent value is to promote and foster a united democratic Sri Lanka ensuring justice and fair play to all the people living in the country with respect for human dignity and rights of people. The LLRC notes in its report that "
Along with an independent Judiciary and a transparent legal process a strict adherence to the Rule of Law is a sine qua non for peace and stability which is of the essence, if there is to be any meaningful reconciliation. A democracy must assure a fair system of governance under the Rule of Law rather than the rule of men. The Commission reiterates that the lack of governance and non-observance of the Rule of Law would result in the creation of tension between communities. Respect for the rights and freedoms of the citizens of a country is the very essence of the concept of the Rule of Law. It was stated that lack of good governance, and non-observance of the Rule of Law coupled with a lack of meaningful devolution were causes for creating tension between communities." [vide para 8.185]
It is the view of the Commission that making visible progress on the devolution issue is of critical importance to ensure the success of any process of lasting and sustainable reconciliation.
It is my humble view that the thirty year war has made the life of the minority communities very weak and feeble. Although the war has affected the country as a whole and others as well in one way or another, comparatively it is the members of the minority communities who are most affected by the war and conflict. Their economic and social structure has got so weakened that they need to concentrate on rebuilding those fabrics. They have been displaced internally a number of times; internal displacement has followed them with regular frequency. As a consequence, they do not enjoy their civil, cultural, economic and social rights in any meaningful way.
In addition, due to the protracted and violent conflict over allegedly ensuring their political rights, members of the Tamil minority community have lost their peace of mind and have become very weak and war-weary. What they immediately need is to get along with their life economically and socially.
They need to have development in their day to day life - to improve it in a meaningful manner. Their representatives must pay attention to improve their living conditions and to develop their areas. The physical infrastructure of the north and east needs urgent development. In keeping with the development drive that has been taking place in other parts of the country, the north and east must also receive concerted effort to boost the infrastructure development and economic development.
The elected representatives of the people of those areas should not ignore the urgent needs of those people - they need development and progress in the spheres of health, education, housing, transport, roads, security, law and order, economic activities, etc. The commitment to represent matters for political power sharing and political rights on the part of their representatives should not be a hurdle with regard to achieving economic and social rights of those people.
Enjoyment of these rights will help them to get over the scars of war and be amenable to sustainable reconciliation. This is the urgent need of the hour!
Conclusion
I have tried to highlight some of the shortcomings that prevail in the country which do not facilitate genuine reconciliation between various communities that have made this island their home. The country's constitutional and legal framework needs change - this should result in the way the legislature, the executive and the judiciary function in our plural democracy; there is a necessity for some institutional change; political parties and activists need attitudinal change; media and civil society organizations need to reflect upon their responsibilities and look at things from a broader perspective; they do require change in their dealing with issues.
These are not unachievable! If there is will there is a way. If we achieve these and work towards bringing out a united country where democracy, and respect for the rule of law, human rights and human dignity hold sway we will convert this tiny island into a resplendent land!
That will be our genuine respect and service to the memory of the late Sir Ponnambalm Arunachalam who stood for a united and democratic Sri Lanka.
ST
Delivering the Sir Ponnambalam Arunachalam Commemoration lecture this week in Colombo, Prof. N. Selvakkumaran, Dean, Faculty of Law, University of Colombo, says there is a necessity for major constitutional and legal reforms in the post-conflict Sri Lanka so that the negative peace that is prevailing now can be transformed into a positive one. Excerpts from his widely-hailed speech.
We are gathered here to cherish the memory and 159th birth anniversary of a great statesman and distinguished personality this country had produced. The late Sir Ponnambalam Arunachalam, of whose birth and life that we remember today, was born in 1853 to a very well-known and highly respected family in Manipay, Jaffna. Sir Ponnambalam Arunachalam was the youngest of three equally eminent brothers, who left an indelible mark in various facets of life in this beautiful island.
Sir Ponnambalam Arunachalam's signal contributions in the legislative, executive and judicial spheres as well as in political, social and religious domains had been illuminating and constructive. It will require a lot of time and energy to capture his achievements and contributions to the mankind in general and to the betterment of Sri Lanka in particular. As you all will agree, that cannot be done in a short time and at a function like this. That has to be reserved for a separate time and event, which I would urge the Sir Ponnambalam Arunachalam Trust to undertake in earnest please. The Trust should invite researchers to delve into the invaluable contributions made by Sir Ponnambalam Arunachalam in different spheres of the Sri Lanka's life.
Let me take this occasion to reflect upon some contemporary events that took place in the country which are related to some of the ideals which the late Sri Ponnambalam Arunachalam stood for and strived to carry out in his days. The miserable and violent occurrences that unfolded in the last thirty years or so in this island would surely have grieved the heart and soul of Sri Ponnambalam Arunachalam. He would not have ever imagined or accepted, on any ground whatsoever, the bleeding of this nation in such a ferocious and barbarous manner as it endured in the recent past. However, the past is past and now is an opportunity for us to go forward and ensure that this Pearl of Indian Ocean becomes a vibrant and resplendent place to live in. That should be achieved in the shortest possible time while ensuring that the country and its people will not suffer a relapse of what they endured in their recent history.
The release of the Report by the Presidential Commission, viz., the Lessons Learnt and Reconciliation Commission, recently too provides a welcome and desirable opportunity in this respect. It requires the powers that be to take a hard and serious look at the present state of affairs in the political, legislative, executive, judicial, economic, social and other spheres; it also calls for chartering a course which will make our present and future generations to remember us with gratitude and pride, but not to curse us for failing them and the country abysmally.
The LLRC Report is a point of departure as its release provides a golden opportunity for the people of this country, in particular their representatives in the Executive and the Legislative arms of the government, to shape the future of this tiny nation to great, if not greater, heights.
Missed were many opportunities in the recent times when adversities - natural and man-made - provided window of opportunities for winning peace in the country. It is of great relief that the violent armed conflict had been brought to an end with the decimation of the ruthless LTTE and its violent activities in the country. Although there linger some issues of accountability raised about the final stages of the war, it is time for the people and powers that be to consider and act decisively as to how the country could go forward as a united nation upholding respect for democratic values, human dignity and the rule of law.
Various factors have contributed to the pathetic and sorry state to which the country fell in or sunk in the recent past. It is not my intention or wish, or is it necessary, to delve into the past minutely and engage in a blame game. That alone will not take us forward in any meaningful manner.
If we are strongly perched in the past we are sure to lose the future. While there is immense value in learning lessons from the past and addressing vital concerns that led to the failures of humanity, we need to engage ourselves collectively, as responsible citizens of this country and members of the world of human beings, in an exercise which will enable us to go forward to turn this country as a resplendent land in the world where peace and happiness will permeate the people who inhabit it.
The successful termination, almost three years ago in May 2009, of the war waged by the LTTE against the government did not bring about an enduring positive peace in the country. It is so at least in the minds of the minorities of the country. What was achieved is an absence of war and armed hostilities in the country, which is referred to as negative peace in the words of conflict resolutionists.
It is true that achieving negative peace was not an easy exercise given the ruthless and elusive nature of the LTTE. Considering the cost of achieving negative peace which was huge in terms of the loss of human lives and limbs and other damages and destruction suffered, it is essential and imperative that the negative peace achieved must be converted to sustainable positive peace, if this land were to be a peaceful country.
There are a lot of things to be done to achieve endurable positive peace in the country. Similarly there must take place attitudinal change in the minds of people. The report of the LLRC adverts to some of these important issues in making its recommendations. The report provides valuable food for thought as well as worthy suggestions; if those recommendations are properly understood and implemented efficiently, I venture to state that the negative peace achieved in the country could be made positive and permanent. It is in this context that I wish to place some of my thoughts for your reflection. In support of my views, I draw from the Report of the LLRC where it is appropriate.
The Sri Lankan society is polarized and divided at the present time. It has been so for some time now. The polarization has come about mainly due to political and economic reasons. Alleged acts of discrimination by the government against minority communities, or acts so perceived by the minority communities, have contributed to this polarization.
Some of the legislative, executive and judicial actions of the state had not evinced an approach of inclusive nation-building on the part of the post-independence governments. On the other hand, some of the actions and pronouncements of political parties of the ethnic divide had not helped the situation either. The three-decade long civil war has not done anything good towards creating an environment conducive for these societies to live harmoniously. To the contrary, it has taken a heavy toll on the minds of the people which was inevitable and unavoidable given the dynamics of armed hostilities. In addition to the direct consequences of armed conflict, the violent strife fought fiercely and savagely, with scant respect for human dignity but with its attendant ethnic dimension, has brought about indirectly many negative effects upon the communities. It is the ordinary people and civilians who have suffered the most.
The prolonged war has hardened the young minds of the ethnic divide against each other and they were moulded and coloured by the antagonism that was generated by the hostilities and their fall outs. Their sentiments and attitudes towards the others and their take on the future of this country and themselves are mainly coloured by their bitter experiences of the war which they were made to suffer during this long period of time.
The people have wounds in their minds; they have developed prejudice against one another; seeds of prejudice, hatred and antagonism are sown in their minds at an early age; there was a lack of opportunity for them to interact in a friendly and harmonious way; they feel bitter about others; they look at others with suspicion; they are not at peace with others; they are not at peace with themselves as well. In certain cases, their dealing with members of other communities had been with personnel from the armed forces or the police force. They had hardly met any civilian members of the other communities. ...
The end of the war and the consequential opening of the A9 road and the free flow of transport between the north and the rest of the country have made the situation better for people to move about with ease. However, this is not sufficient to erase the mind-set of people who have entertained negative attitudes about others to change them on their own. The government should take positive and proactive steps to create opportunities and space for interaction between young people from these communities from 'the north and the south'.
The money spent on these pro-peace activities would be worthy investment in the long run. They would create a sense of understanding and a feeling of being inclusive in the minds of young people. They will create a window of opportunity for the people of the south to see, learn and understand the traditions and culture of the north; conversely the people of the north will also see, learn and understand the traditions and culture of the south. Facilitating a better understanding of each other is a must for harmonious living in the country and peace to prevail in the country.
This apart, the people who suffered immensely due to the war - by loss of their loved ones - have deep-seated wounds in their minds. Some of them do grieve a lot in silence; others grieve openly and at times in moods of anger and hate; some of them are unable to get over their wounds as they do not know what had happened to their loved-ones. There have to be some genuine efforts to heal these wounds. Allowing them to fester is not going help in fostering a harmonious and united nation in the country. These people do not know the whereabouts of their relations. They do carry a great burden in their hearts. They know that there are large numbers of detainees who have been detained after the end of the armed hostilities. These parents and family members do not know whether their children and loved ones are amongst those who had been detained by the government or they had perished in the war or come up with their end in one way or another.
The Lessons Learnt and Reconciliation Commission provided opportunities for people to make representations and relate their 'stories of grief and victimization'; it did not, however, provide opportunities for truth telling as how the South African Truth and Reconciliation Commission did after the collapse of apartheid. While it is irrefutable that a system which worked in one country and in one context may not apply equally to another context or country, the scope of the mandate given to the LLRC was not meant to be or sufficient enough to provide an occasion for truth telling and unburdening the hearts of victims or perceived victims.
The government should seriously think about providing some space for people to relate their tales and learn the truth of what happened to them or their family members so that it will provide genuine effort at reconciliation. Otherwise there would be a sense of injustice to those who perceive that they had been wronged and that no opportunity was provided to seek redress for their injustice or perceived injustice. Transitional justice provides opportunities for people to get over their psychological trauma in a collective manner without necessarily imposing criminal sanctions on others for telling the truth.
There are different shades of systems of transitional justice. What is necessary is to make people to come to terms with the past and get along with their future; if it could be done without being burdened by the past which prevents them from going into the future in a meaningful manner that will facilitate genuine reconciliation. This is necessary if those people are to contribute positively for the future wellbeing of the country and its people.
Some of the recommendations made by the LLRC with regard to political power sharing and upholding the rule of law in the country are very valuable and instructive. Their inherent value is to promote and foster a united democratic Sri Lanka ensuring justice and fair play to all the people living in the country with respect for human dignity and rights of people. The LLRC notes in its report that "
Along with an independent Judiciary and a transparent legal process a strict adherence to the Rule of Law is a sine qua non for peace and stability which is of the essence, if there is to be any meaningful reconciliation. A democracy must assure a fair system of governance under the Rule of Law rather than the rule of men. The Commission reiterates that the lack of governance and non-observance of the Rule of Law would result in the creation of tension between communities. Respect for the rights and freedoms of the citizens of a country is the very essence of the concept of the Rule of Law. It was stated that lack of good governance, and non-observance of the Rule of Law coupled with a lack of meaningful devolution were causes for creating tension between communities." [vide para 8.185]
It is the view of the Commission that making visible progress on the devolution issue is of critical importance to ensure the success of any process of lasting and sustainable reconciliation.
It is my humble view that the thirty year war has made the life of the minority communities very weak and feeble. Although the war has affected the country as a whole and others as well in one way or another, comparatively it is the members of the minority communities who are most affected by the war and conflict. Their economic and social structure has got so weakened that they need to concentrate on rebuilding those fabrics. They have been displaced internally a number of times; internal displacement has followed them with regular frequency. As a consequence, they do not enjoy their civil, cultural, economic and social rights in any meaningful way.
In addition, due to the protracted and violent conflict over allegedly ensuring their political rights, members of the Tamil minority community have lost their peace of mind and have become very weak and war-weary. What they immediately need is to get along with their life economically and socially.
They need to have development in their day to day life - to improve it in a meaningful manner. Their representatives must pay attention to improve their living conditions and to develop their areas. The physical infrastructure of the north and east needs urgent development. In keeping with the development drive that has been taking place in other parts of the country, the north and east must also receive concerted effort to boost the infrastructure development and economic development.
The elected representatives of the people of those areas should not ignore the urgent needs of those people - they need development and progress in the spheres of health, education, housing, transport, roads, security, law and order, economic activities, etc. The commitment to represent matters for political power sharing and political rights on the part of their representatives should not be a hurdle with regard to achieving economic and social rights of those people.
Enjoyment of these rights will help them to get over the scars of war and be amenable to sustainable reconciliation. This is the urgent need of the hour!
Conclusion
I have tried to highlight some of the shortcomings that prevail in the country which do not facilitate genuine reconciliation between various communities that have made this island their home. The country's constitutional and legal framework needs change - this should result in the way the legislature, the executive and the judiciary function in our plural democracy; there is a necessity for some institutional change; political parties and activists need attitudinal change; media and civil society organizations need to reflect upon their responsibilities and look at things from a broader perspective; they do require change in their dealing with issues.
These are not unachievable! If there is will there is a way. If we achieve these and work towards bringing out a united country where democracy, and respect for the rule of law, human rights and human dignity hold sway we will convert this tiny island into a resplendent land!
That will be our genuine respect and service to the memory of the late Sir Ponnambalm Arunachalam who stood for a united and democratic Sri Lanka.
ST