Basil Fernando

(Ed. note: The Asian Human Rights Commission [AHRC] presents this article for discussion for those who are seriously concerned about the continuing anarchy in Sri Lanka. The author is the executive director of the AHRC.)

This article is based on many years of work in understanding the overall crisis affecting Sri Lanka. It is based on the assumption that 30 years or so of recurrent political mistakes have created a situation of anarchy in the country. While the world talks only of Sri Lanka's ethnic crisis, which by now is reduced to a conflict between the government and the Liberation Tigers of Tamil Eelam (LTTE), this article poses the ethnic crisis as only one aspect of Sri Lanka's total crisis, which affects the South, North and East. The article is based on the further assumption that, unless the collapse of the country's political and legal systems is addressed, a sustainable solution to the ethnic crisis is not possible. Keeping in mind these premises, the article poses points for discussion in bold italics throughout the text.

A thorough reform of the policing and prosecution systems, coupled with the complete overhaul of the administration of discipline in the armed forces, is more likely to resolve Sri Lanka's ongoing conflict than any other measures.

That these measures are necessary will not be a matter of dispute. There have been comprehensive writings on the policing system of Sri Lanka, and they illustrate a tragic collapse beyond imagination. The inspector general of police (IGP) himself has admitted that the biggest obstacle to the prevention of crime, including eliminating the current drug menace, is the link between the police and criminals. That the police lack discipline has also been acknowledged. The reason for the policing system's current state is often said to be the manipulation of the police during periods of national emergency as well as the anti-terrorism activities of the past 30 years.

The prosecution system under the Attorney General's Dept. is also acknowledged to have degenerated considerably, particularly since the early 1980s. This breakdown is largely attributed to political pressure. While some attempts at improving its performance have been made, the system remains deeply flawed and is unable to win public confidence. Under the present circumstances, the system is unable to reform itself.

As for Sri Lanka's armed forces, their brutal manner and total disregard for disciplinary rules during any active operations—regardless of whether the operations are held in the South, North or East—is well documented. Large-scale mass killings after arrest were instigated in the South in the early 1970s and late 1980s, causing the disappearance of at least 40,000 people. Mass extrajudicial killings in the North and East beginning from the late 1970s have also been well documented. The lack of any internal disciplinary process became most evident in the disappearance of the Embilpitiya school children, who were arrested by the military for no reason at all and subsequently went missing. This absence of discipline brings discredit to the Sri Lankan armed forces within days of any operation.

Without these institutions being reformed, it is unlikely that any discussions or dialogue regarding the current ethnic conflict, whether held in Sri Lanka or abroad, can lead to a positive outcome. The simple reason for this pessimistic conclusion is the absence of basic conditions that enable social cooperation.

For discussion and dialogue to succeed, there must exist a realisation that whatever agreement is reached will be enforced. The parties to the dialogue are naturally those who politically represent the parties to the conflict. These political leaders cannot make any executable pledges as long as the public institutions meant to enforce the law themselves contribute to lawlessness and anarchy. Dialogue held under these circumstances can only be damage control exercises, which, although they may help to prevent the conflict from escalating into open warfare, do not offer genuine solutions to the existing conflicts of interest. This assertion is clearly reflected in all past discussions and dialogue regarding Sri Lanka's ethnic issue.

The basis for the resolution of any conflict is the creation of conditions necessary for social cooperation. The resolution of a conflict means the transformation of a situation of conflict into one of social cooperation. Such cooperation may not initially be achieved to an ideal extent, but there must be reasonable hope on both sides that eventual genuine cooperation is possible. Without the establishment of the rule of law, there can be no such cooperation.

A conflict cannot be defined only by the parties to the conflict, which may define it according to their own beliefs or what they wish others to believe. In reality, however, the parties themselves may only be willing or unwilling agents of larger forces. Often they themselves may be surprised when, in the course of time, they no longer have control over events they in some way precipitated.

Conflicts around the world reveal that the way in which parties to the conflict define their goals is not the only factor affecting the ultimate outcome of the conflict. The present conflict in Sri Lanka is defined by some elements in the South as one of sovereignty and territorial integrity. It is defined by other elements, led by the LTTE, as the defence of their traditional homeland, requiring a separate state. Both of these positions have also been expressed through the following buzzwords: unitary state, federal state, autonomy and self-determination, which enable the respective parties to seek legitimacy for their struggles.

None of these goals or buzzwords, however, are able to adequately express the roots of the grievances or the modes of social organisation necessary to address them. It is therefore important to go beyond the buzzwords and attempt to understand the root causes of the conflict and its practical manifestations. This approach is also required to understand why parties to a conflict may fear "peace," which is often seen as a trap and a way by which their opponents seek to disarm them for their own benefits. In the South, therefore, peace is seen as a method by which the LTTE can gain greater resources, arms and prepare for a greater offensive. The LTTE, on the other hand, sees peace as something that can bring stability and prosperity to the South, which may lead to the neglect of the North as well as placing the government in a better position to fight in the North. With such fears, none of the parties are able to see the possibilities of future cooperation, leaving dialogue and discussions as exercises empty of firm expectations.

Contemporary Sri Lankan society in all parts of the country is in a state of anarchy due to the fundamental defects in the political and legal systems as mentioned above. The reform of the police and prosecution systems, as well as the administration of discipline within the armed forces, will transform the current anarchy into stability and is therefore a better option in resolving the ethnic conflict.

Regardless of whether or not violence in Sri Lanka intensifies, the country will continue to be in a state of anarchy. Varying degrees of anarchy have plagued Sri Lanka since the early 1970s, affecting all parts of the country. For a significant amount of time, the anarchy led the country to become a killing field: in the 1970s, it was mostly the South that was affected while in the 1980s the killings spread to the North and East as well.

Now the anarchy and violence is once again affecting the entire country with the Sri Lankan State having lost all authority. To illustrate this point, one need not look any further than the large number of killings in the North and East, including of soldiers, during the past month. In December 2005, the National Human Rights Commission (NHRC) reported about 20 disappearances there as well. Even in the South, the State's incapacity to exercise power and enforce the rule of law is visible: the country's police, prosecution and judicial systems, as well as administrative mechanisms, function only in name and are, in fact, unable to deliver even the most basic services to the nation. As a result, the media has begun to talk about Sri Lanka's return to civil war. In fact, what they mean is a more intense return to the anarchy and killing fields of the past.

While there is an overwhelming consensus of the colossal flaws in the country's political and legal systems as well as public institutions, there is also a common doubt as to whether the reform of these systems and institutions is possible. This doubt fuels the conflict.

Although it is accepted that Sri Lanka is in a state of anarchy, this understanding has never become a central issue within social discourse. Such discourse is more concerned with a possible "war," which is portrayed as the real evil to be prevented at all cost. Only in private conversations is the miserable nature of present-day life bemoaned. This misery will continue and even worsen, irrespective of whether the ethnic conflict intensifies or not. If Sri Lanka's state of anarchy is to be brought to an end, this misery and its causes need to be addressed.

The only measure—albeit limited—taken to address this situation of anarchy was the adoption of the 17th Amendment to Sri Lanka's Constitution in October 2001. However, the provisions of this amendment were never pursued vigorously, leading to little change in existing conditions. Those in power may have found it more lucrative to exploit those conditions rather than to eliminate them. Genuine reform of the police and justice system and the subsequent social discipline would limit possibilities for their illegal enrichment and abuse of power.

By the end of 2005, even the limited reforms undertaken by way of the 17th Amendment were abandoned. Two presidents and their cabinets deliberately opted not to appoint the Constitutional Council, thereby preventing the functioning of the commissions created under the amendment. Without these commissions, it is not possible to adequately supervise and discipline important public institutions and processes. Although it cannot be said that the 17th Amendment was enough by itself to end the lawlessness in Sri Lanka, its effective implementation could have provided the necessary impetus for further reform. The inability to implement even these limited measures indicates the clear lack of political will within the country that is necessary to bring about change.

This absence of political will is the most discouraging and demoralising factor affecting the Sri Lankan population today. When people are in doubt regarding the possibility of effective reform to restore social cooperation, there is no hope for any discussion or dialogue to succeed. In fact, these doubts encourage parties to the conflict to pursue and intensify violence. Rather than a rational solution to the conflict, victories against their opponents are pursued regardless of the cost. The rational adherence to a programme of peace is possible only when there is such a choice in real terms.

This doubt regarding the possibility of effective reforms can only be eliminated through a political decision in the south of the country.

Trading blame on who caused the conflict to escalate or to continue does not alter the political fact that it is the government in the South alone which can make decisions to end the present lawlessness. It is only the government which can implement police, prosecution and military reforms. Opposition as well as civil society groups must pressure the government towards this end. In fact, as the legitimate authority of the country, it is the government's duty to ensure stability through genuinely functioning public authorities irrespective of whether or not it has a bearing on the ethnic conflict. In the same way, the existence of the ethnic conflict cannot be used as an excuse to delay these reforms.

The reform of these institutions in the South will create a positive environment that parties to the conflict cannot ignore. They may then be more hopeful of a rational solution to the conflict.

As the survival of ordinary people is threatened more by the defects and flaws in public institutions than by the LTTE or any other external agency, they may soon push hard for an effective political decision regarding such reforms.

As evidenced by the non-implementation of the 17th Amendment as well as the fact that the government is not at all engaged in discussions about any internal reform agenda, it is clear that, at present, the government is unwilling to institute reforms. It is likely that within the government there are those who would like to emulate their predecessors and use their positions of power as an opportunity for their own gain rather than for the public good. No one within the government, or even the opposition, has yet to step forward in support of these reforms.

Under these circumstances, it is the people who must make their grievances heard and fight for redress. Recent years have seen enough expressions of discontent to feel hopeful that people will continue to make their presence felt in the political arena. Civil society groups should work towards reforms by initiating moves from the grassroots level. In a very literal way, the people themselves must now become the ultimate guardians of democracy.

If the international players understand this dynamic, they can expedite this process of reform and thereby give impetus to a process that may contribute to the building of social cooperation that has completely broken down due to the defects and flaws mentioned above.

In most conflict situations, international actors take a long time to understand the multiple facets of the issue, particularly if they only go by what parties to the conflict say is happening. It is only through the painful failures of their interventions that they learn of the many other aspects to a conflict than those immediately visible. Many international actors concerned with the Sri Lankan conflict will have learned such lessons in recent decades. For some, like India, the learning process will have cost many lives and will have had implications on their own political process.

While it is now commonly accepted, even internationally, that Sri Lanka is in a state of anarchy, few efforts have been made to understand the depth of this problem. In particular, there is little understanding of the strong link between the crisis of Sri Lanka's democratic institutions and the general lawlessness of which the ethnic conflict is a part. Without this understanding, international actors have had little interest in assisting with the necessary institutional reforms. By developing such an understanding, international actors would be in a better position to engage with the parties to the ethnic conflict and enrich the existing discourse, both within the country as well as outside.

International actors would also then be in a position to help with the resources necessary for such reforms. Adequate financial and material resources are essential in convincing the political actors of the South that such reforms can be undertaken. Common excuses for not undertaking reforms in the policing and justice systems, as well as military discipline, are the lack of funds. While these claims may hide other motives, they do have some credence and further help to sustain a state of pessimism regarding the ability to reform.

In this way, the combination of a grassroots movement concentrating on reforms of public institutions with strong support from international actors involved in resolving the ethnic conflict can produce a momentum that is badly needed in Sri Lanka. This momentum will allow the country to escape from the state of anarchy through which Sri Lanka has suffered for quite some time now.