A landmine attack on a bus on June 15 at Kebethigollewa on a remote road near rebel-held territory killed at least 64 persons and wounded many more. Immediately thereafter there were several air strikes on LTTE positions by the Sri Lankan military. This follows several months of low intensity conflict which has killed many people daily and is part of a decades-old armed conflict which has defied solution. The present groups involved in the conflict are the government, the LTTE and some other groups in the East.
The Sri Lanka Monitoring Mission (SLMM) in a report published last week warned:
“The GOSL’s commitment to take all necessary measures in accordance with the CFA to ensure that no armed group or person other than Government security forces will carry arms or conduct armed operations in GOSL controlled areas has not been implemented. GOSL is responsible for maintaining law and order in all GOSL controlled areas and this includes preventing operations by criminal, paramilitary and other unofficial armed groups.
“LTTE continued to recruit and abduct children to strengthen their fighting capacity. LTTE must follow the CFA [cease fire agreement] and international law and stop this practice.”
Former President Jayawardena was quoted by an Indian diplomat as saying that the ethnic conflict has been “reduced to a killing match.” This is what it has been from the beginning with short intervals of reduced violence followed by long periods of intense conflict. It is also commonly acknowledged that there is no serious belief, either on the part of government or on the part of the LTTE, that there will be a peaceful solution to the issue. Talk of peace has been more rhetorical, and gestures of negotiations have been more to please the international critics and to defuse pressure both from local sources and outside.
The only worthwhile question to consider is why this problem is defying a solution. The Asian Human Rights Commission has constantly pointed out that the root causes of this conflict go far beyond language or any ethnic factor. It is a problem of the whole nation which has refused to address the fundamental problems of the development of the state as one based on the rule of law. Today the rule of law has collapsed in all parts of the country. The writ of the state is not complied with in any area, and the major agencies of law enforcement are acknowledged to have collapsed. The courts are in serious crisis, even forcing two of the three members to resign from the Judicial Service Commission, which consisted of three senior Supreme Court judges, including the Chief Justice. The absolute immunity granted to the Executive President under Article 35 of the Constitution has been interpreted by the courts to mean that they have no power to adjudicate on acts or omissions, official or personal of the President.
The whole issue of appointments to superior courts and important commissions directly by the President contravening the mandatory provisions of the Constitution, which require the Constitutional Council to make the selections before the President exercises his power of appointment, points to the utter collapse of constitutionalism in the country. The legal foundation of the country has been thoroughly shaken since 1978 and an authoritarian style of Constitution, couched in the jargon of democratic Constitutions was introduced. The AHRC on earlier occasions has pointed out the legalised tyranny guaranteed by the 1978 Constitution (SRI LANKA: Presidential immunity an expression of legalised tyranny guaranteed by the 1978 Constitution AS-102-2006, and see also the article, Contempt for the Constitution http://www.article2.org/mainfile.php/0502/228/).
As the people in the country are once again watching the escalation of violence with shock, the only genuine way to mourn the deaths of the people who have lost their lives in this senseless violence is go beyond the hypocritical rhetoric of all parties concerned and to address the fundamental issues of the failure of governance in Sri Lanka. The decades of violence call for conscientious citizens of all communities to intervene to bring to an end the cynical play of words which often go as commitments to find a solution without any real effort being made to do so. This cannot be done without addressing the complete collapse of governance in Sri Lanka (kindly see SRI LANKA: Failure to govern not failure of state, and its implications for human rights – AS-119-2006).
Much will depend on the Tamil community itself and the Tamil Diaspora throughout many countries to be able to link the problem they face as a minority to the whole question that Sri Lanka is facing with the complete collapse of constitutionalism and the rule of law. To limit the discussion purely to unitary or federal states is to lose sight of the fact that when the constitutionalism is lost neither unitary nor federal states can survive. The overreaching consideration for any solution is that the constitutionalism itself must be the backbone of the country’s legal framework. It is this framework that has collapsed; and without that, there is no solution to any of the problems. The frustrations are heavy amongst the Sinhala and Muslim communities also about this collapse. There is a tremendous moment of opportunity for real democratic reforms which could lay the foundations for the resolution of all the basic problems of the country by a common consensus of people if a bold attempt is made now towards a democratic agenda for the resolution of the problems of all the persons affected by the collapse of governance. It is in this direction that it may become possible to find ways to stop the carnage that Sri Lankans are experiencing now.
This perspective of placing the present conflict within the entire framework of the bleak constitutional and legal situation of the country will also force a challenge to the co-chairs of the Tokyo donor conference in support of the peace process in Sri Lanka as well as the SLMM and the Norwegian facilitators of the peace process. Their earlier initiatives which confined the problem to “the ethnic issue” have proved a failure. If they addressed the total framework of the problem, their initiatives may have become more dynamic and would also have won the support of the majority of people in all communities.
The AHRC therefore calls upon all concerned parties within the country and outside to honour the people whose lives have been sacrificed in this meaningless violence by ceasing to offer only words, words, words and instead address the real issues.
