Liberties and the constitution in Sri Lanka. Its implications in the region

In one of its latest judgments, the Supreme Court of Sri Lanka, an island situated at the southern tip of India, has granted an additional year to its president's term, following the 26 January 2010 presidential election in the country where outgoing President Mahinda Rajapaksa was re-elected. Given its nature, the piece of news would normally fall as a tile on the head of ordinary citizens waking up one day to learn that their President or their Prime Minister was granted one additional year to the term for which he was elected.
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There is nothing more valuable in life than the love of the people.
(Jyoti Basu, Memoirs)

In one of its latest judgments, the Supreme Court of Sri Lanka, an island situated at the southern tip of India, has granted an additional year to its president's term, following the 26 January 2010 presidential election in the country where outgoing President Mahinda Rajapaksa was re-elected. Given its nature, the piece of news would normally fall as a tile on the head of ordinary citizens waking up one day to learn that their President or their Prime Minister was granted one additional year to the term for which he was elected.

Shortly after, on 4 February, the Republic of Sri Lanka was to celebrate its 62nd anniversary on the tense background of a fresh election. At the function that was organized for the occasion, the rhetoric reached its peak in the allocution of the President whose victory was another reason to celebrate. If this was enough to have his audience forget the extraordinary events that marked the country's politics following the election, the Supreme Court’s judgment that came in the aftermath of the vote should have given some sort of indication that, from a certain perspective, something uncommon was taking place in the island.

Four years ago, Mahinda Rajapaksa became president of Sri Lanka for the six years term granted through the constitution. But considering that the political context was favourable to his candidacy, he decided to call elections two years ahead of time, a decision he justified on the basis of the provision of the 3rd amendment to the constitution passed by previous president J. R. Jayawardene, in 1982.

With the support of the rural masses, Mahinda Rajapaksa was re-elected taking advantage of the ethnic divide between the Tamil minority and the Singhalese majority – attributed to a long-standing conflict that he resolved in his manner, by eradicating the Liberation Tigers of Tamil Eelam (LTTE), a hard-militant group in favour of the independence of the regions of the North and the East. The LTTE is a militarized organization. Until its elimination by the Rajapaksa government, the organization represented one of the major political forces in the regions of the East and the North, whose pressure on the central government led to the conclusion of the Oslo accord, in 2002.

Strong of his roots in the Singhalese majority antagonistic to the Northern aspiration to independence, Mahinda Rajapaksa won with a comfortable advance on the opposition candidate, Sarath Fonseka, a general earlier dismissed by the president after the war on the Tigers, and who became Mr Rajapaksa's fearsome adversary. Mr. Fonseka had the support of the urban areas, and the Tamil constituencies – The Tamils form approximately 12.5 per cent of the 20 millions inhabitants that constitute the population of the island. At any rate, the Tamil turnout for the vote in the North and East remained poor: 40% as against the 70% average for the whole country (1). A great number of those voters at the time were living in temporary shelters after their displacement and detention in government camps. Most of the area is still dis-functional, and the infrastructure is in a state of quasi-total collapse.

As a result of his recent re-election, Mr. Rajapaksa ought to be in power for two consecutive terms of a cumulative ten years, according to the election commission: the four years of his completed term, plus the six granted by the election which he won on 26 January 2010 (2). Shortly after the results were announced, whether his calculation was premeditated or not remains a matter of speculation, Mr. Rajapaksa realized that with his ten years in office, he was going to be in power two years short what the constitution would have allowed him if he had called the elections at the end of his first term. He therefore requested the Supreme Court to rule that his second term should begin, as he claimed it, on 19 November 2011, i.e. on the day when the election was due, instead of 26 January 2010, on the day when the vote was held (3). The court ruled Mr Rajapaksa could begin his second term on 19 November 2010, thus granting him an extra year in the exercise of his functions as President.

How this is going to influence the political system of the country is predictable. Playing with the constitution, one would declare an election ahead of time, and would have one's term prolonged by presenting the case to the Supreme Court which could hardly ignore the precedent it earlier created. In the meanwhile, embolden by his success, and strong of the support of two key ministries at his brothers' hands, Mr Rajapaksa implemented or rather reinforced a set of extraordinary measures.

Immediately after the election, instead of taking the path of the national reconciliation, he attempted to silence those who accused him of electoral malpractices and of using public resources to denigrate the opposition. So far, Fonseka’s website is blocked, with the following message: “Forbidden”. (www.sarathfonseka.com)

The president went on with his repressive move, systematically purging the army where fourteen military officers, including five Major Generals were forced to retire (4). He hardened the repression on the free press and the opposition, and his administration is maintaining until this day the detention of 80,000 Tamil refugees in the Vavuniya camp alone after he promised they would be released on January 31st (5). Remember that an estimated 300,000 Tamils were displaced from their home and their land in the North and the East by the Sri Lankan army and the government in order to facilitate the clean-up of the Tigers in the region (6).

In the course of events, the European Commission pressed for an inquiry into allegations of electoral malpractices; US politicians welcomed a “peaceful election" while looking forward to waging their next war (7); the United Nations approved the results, having beforehand turned down a request to monitor the process – it had previously given its imprimatur, however, on the authenticity of a video showing the summary execution of militants by the Sri Lankan army. Some nations contemplated the disaster of the war while trying to figure out the benefit they could gain out of it; others protested with a touch of reserve. Meanwhile, China who supported the regime reinforced its influence on the island at the expense of those who dared protest. India tried to throw in the weight of its influence. Expressing reservations on a military solution, and under pressure from the Indian Tamils (with some variants, the Tamils of India and those of Sri Lanka have the same linguistic and cultural backgrounds), Delhi sent out its emissaries while making it clear that it had no intention to meddle with his neighbour's affairs. And this was not an improvised action.

For, the Republic of India is one of the countries that have learned not to interfere (at least not too openly) in the Sri Lanka’s troubled affairs. Last year, however, it welcomed the elimination of the Tamil Tigers of Sri Lanka, following a long-standing war and the unsuccessful intervention of the Indian military in the island, which led to Rajiv Gandhi’s assassination by the Tigers at Sriperumbudur (Tamil Nadu, India), in 1991. The island's so-called "ethnic cleansing" carried out a year ago met an isolated but outspoken resistance in the Indian state of Tamil Nadu, a short-lived resistance which the power sharing in Delhi following the Indian elections in April-May 2009, has eventually silenced (8). After all, particularly since the assassination of Rajiv Gandhi, India never hid the fact that it wanted the elimination of the Tigers.

Though a ruling like the one of the Sri Lanka's Supreme Court would probably have no chance to emerge in Indian politics (such eventuality would certainly provoke an outcry), it is unlikely, after the elimination of the Tigers, that the Lanka politics, whatever its orientation, would ever face a firm disapproval in India. If that should serve its interest, it would be better for India to have a dubious democracy in the South than the Burman illegal generals to the north-east border – at all events, one could always put up with both. But there is a lot more in the political environment of the sub-continent.

Obviously, India has many hot points in a fairly complex domestic net. Its military involvement in Kashmir since the independence is just one of them and it drags on. Besides, there are the Naxalites (the Maoist guerrilla), the pressure from armed resistance in the north-east, and the threat of urban violence. On such a background, Indian strategists are worried by terrorist expansion from neighbouring countries like Sri Lanka, Pakistan, Bangladesh, and Nepal – The latter recently witnessed the overthrow of its kingship that was replaced by a less docile Maoist democracy. This should explain the stand taken by a large portion of the Indian press in favour of a hand of iron like the one Rajapaksa has over his country in the South, as compared to the lack of control (perceived or real) by the Pakistan on the so-called terrorism to the western border. In this context, the human rights issue in Sri Lanka is not particularly relevant. In any case, it is not at the foreground.

Thus, Mr Rajapaksa's second term at the helm of Sri Lanka is welcomed as a "magnificent triumph" (9), with a definite touch of sympathy for the President of Sri Lanka and his "strong rural roots and aura of rustic simplicity" (Ibid) which, one is left to understand, might extend its appeal beyond rural Sri Lanka across the strait towards the North. But India is a complex entity, and that reflects in the variety of opinion displayed in the press. There are extensive analyses like those carried by the left oriented Frontline stating that the core issues of the ethnic conflict of the country has been clouded in the presidential race by a clash of egos between the President and its opponent (10).

In the end, the Sri Lankan government did exactly the thing what India had expected, by the crushing of the LTTE even if that entailed massive displacements of populations who had to live in camps where observers were systematically kept out (11). And, as was said earlier, there took place the assassination of resistance leaders who apparently had surrendered according to an statement made during the election campaign by general Fonseka himself who was responsible for the operation that led to the eradication of the Tigers – a statement he had to withdraw following threats of being brought to justice by the Rajapaksa party, in the midst of the electoral campaign (12).

Though the Tamil resistance is still rampant in Sri Lanka, no big surprise is foreseen on the island for the near future. The country has witnessed a fierce conflict that led to the elimination of one of its minority's political force (known however for its recourse to violence) and of the weakening of other political bodies (The Eelam People's Democratic Party is one of them). It underwent censorship imposed on the press and cancellation of visas for international officials, journalists, humanitarian organizations, in order to eliminate the embarrassing supervision of the troubling events that took place in the country.

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According to observers, on the other hand, the LTTE has missed the opportunity of the Oslo accord (2002) that has granted autonomy (without independence) to the Tamil minority and the Muslims. The main achievement of the accord resides in the constitutional institutionalization of the devolution of power towards the regions. By pushing for independence, the LTTE lost an opportunity to bring a permanent solution in favour of the afflicted minorities (13). Remember that the LTTE was declared a terrorist organization following pressures from India and other countries like the US and the less visible but effective Israel which is very much in the business of arm deals with the region. As a matter of fact, the time for Oslo accords in Israel and Sri Lanka seem to be a thing of the past.

Talking of peace, and as a counterpoint to the Sri Lankan election, Jyoti Basu, one of the last Indian doves, and former chief minister of the West Bengal, received a national tribute from all India on the occasion of his death at the age of 93. He was one of the exceptional contemporary political figures who worked all his life for minority rights, the oppressed and the poor. Like the peace processes of another era, such a model has probably not much significance for the Prime Minister of Sri Lanka, at least until recently. On the other hand, those ideals no longer seem to find their legitimacy in the policies of the contemporary nation-states. In the actual world, states are trying to maintain their citizens within political boundaries while identities are being constructed in broad communication networks within newly designed spaces that have their own delimitation (14). Like the larger entities, smaller ones like Sri Lanka seem to be an illustration of this.

Already, some time ago, Mr Rajapaksa had decided to actually diminish the Tamil political force when in his previous term he had promised to cancel the Oslo accord, and to eradicate the LTTE. And he did that, as promised. In the upcoming years, he might be tempted to reinforce the obsolete 13th amendment to the constitution (1978) in order to limit the devolution of power and keep it under a strong government at the Centre. “Equal treatment for all”, he said in his Republic Day discourse. That is to say: No special status for the north-eastern regions. And he added: “That is our way, the only way” (15).

Only 40% of the Tamil population went to vote. They are those who threw their ballot paper in the proportion of 70 to 90 percent in favour of Sarath Fonseka, as they possibly knew that the opposition candidate was the only chance (though uncertain) to see a revival of the agreement that was signed some twenty years ago in Oslo. For a minority whose voice remains clandestine, Mr Fonseka was perhaps the less evil of the two candidates, in spite of the fact that, in his previous functions as a high army officer, he had carried out the operations against the LTTE. As for Mr Rajapaksa, he possibly will have to wait until the island reverberates of its minorities’ dances, its songs and its poems, its telling of sufferings and hopes, if he wants to claim a legitimacy that goes beyond what the electoral system and the Supreme Court has already granted him.

Thrissur, INDIA, 5 February, 2010

Notes

1. Department of elections, Sri Lanka.
2.Two terms of six years, for a cumulative twelve years, are allowed by the Sri Lankan constitution.
3. Fifteen days are given to the president to take his oath.
4. The Hindu, 3 Febr 2010.
5. The Daily Mirror, Colombo. 2 Feb. 2010.
6. Frontline. Vol. 27, 2. Jan. 16-29, 2010.
7. Daniel Pipes, Neocon from the Bush era, wrote this week that the only way for Obama to save his presidency was to “bomb Iran” and destroy the country’s “nuclear-weapon capacity”. (Seumas Milne, in The Hindu, 5 Feb. 2010)
8. Prominent figures who voiced their concern over the ethnic conflict in Sri Lanka were given a role in the coalition government at the Centre. After the LTTE’s defeat, India announced millions in aid. A line of credit was given to Colombo for the reconstruction of railway infrastructure. The country recently sent cargos of galvanised corrugated to help provide relieve and re-settlement to the 300,000 peoples displaced by the army in the north-eastern Sri Lanka (The Hindu, 4 Feb, 2010). The aid, however, remains underneath of what was recently granted to Bangladesh.
9. The Indian Express carried a more balanced account on the Sri Lankan elections. Jan. 28.
10. Frontline, Ibid.
11. Le Figaro, 3 févr. 2010.
12. A video of the assassination was later broadcasted by the BBC Channel 4. A UN board of specialists has since confirmed the authenticity of the video (Cf. Times of India, 8 Jan. 2010). Predictably, the Sri Lanka government denied the UN findings.
13. Dayan Jayatilleka, in Frontline. Ibid. Cf. Tamil Writers Guild. http://tamilwritersguild.com
14. Arjun Appadurai. Après le colonialisme. Les conséquences culturelles de la globalisation. Trad. Françoise Bouillot. Payot, 2005. 335p.
15. The Hindu, 5 Feb, 2010.

^* Image: wikipedia.org

^**

The Jaffna Library.Jaffna, the capital city of the North, in the occupied territories.
"(After the war) Jaffna is city of ruins". (New York Times, 7 Feb, 2010)
Courtesy: Wikipedia.org

^*** Sarath Fonseka

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