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Sri Lanka Asanga Welikala / University of Edinburgh CASE STUDY * Sri Lanka Asanga Welikala / University of Edinburgh To what extent was the conflict in the formative stages of the new state, in Sri Lanka generated by lack of the courts were unable to make full use of inclusion of a group or groups in the this provision to strike down discriminatory state’s political and legal structures? legislation. This included depriving Indian Was there a lack of human rights Tamils of citizenship and adopting Sinhala as protection for the excluded group? the sole official language. This led to a loss of confidence in the constitution by the The conflict was generated by the inability minorities, and a demand for security and of the Sri Lankan state to accommodate the recognition through federal autonomy. demands for linguistic parity and territorial When Sri Lanka became a republic in autonomy by the minority Sri Lankan Tamils. 1972, Tamil views on the constitutional future From the mid-nineteenth century, the British were rejected entirely. The first republican colonial state had provided representation constitution entrenched the unitary state, to local communities on a near-equal, rather gave Buddhism a “foremost place” and primacy than on a proportional, basis. This provided to Sinhala. This radicalised Tamil nationalism, over-representation for minorities and under- and federalists were superseded by militants representation for the majority Sinhala- committed to an armed struggle for a separate Buddhists, creating a major grievance among state of Tamil Eelam. Even though a justiciable the latter, especially as they saw themselves Bill of Fundamental Rights was introduced by as the historic people of the island. The the second republican constitution in 1978, independence constitution of 1948 provided it did not permit devolution. In fact, it further for a fairly orthodox model of parliamentary centralised power through the introduction unitary state, which allowed the Sinhala- of an Executive President. In any case, active Buddhists to dominate the post-colonial conflict had started by then with all strands state and to devise state policies to redress of Tamil political opinion coming together the colonial injustices against this majority. on the platform for a separate state in the Although it eschewed a fully-fledged bill of Vaddukoddai Resolution of 1976. rights, in anticipation of majoritarian excesses, The post-independence nation-building the constitution did provide for a “manner exercise did not take an inclusive and civic and form” anti-discrimination clause, which character, with the guarantee of fundamental prohibited discriminatory legislation against rights including Tamil language rights, and any ethnic community or religion. However, devolved power for a measure of self- * This case study is intended to inform a British Academy project on “Negotiating Inclusion in Times of Transition”. It was produced as part of the Political Settlements Research Programme (PSRP) of the University of Edinburgh. The PSRP is funded by the UK Department for International Development. 1 Case Study / Sri Lanka government to the Tamil-majority north and state and Tamil nationalists, culminating in east. If it had, the Sri Lankan conflict may never the Indo-Lanka Accord of 1987. Under this have happened. Instead, an ethnocratic form agreement, the Sri Lankan government agreed of Sinhala-Buddhist nationalism became the to introduce Sinhala and Tamil language parity dominant discourse of majoritarian democracy and devolution through a system of Provincial and party competition. The republic’s Councils, while India undertook to disarm the constitution-making became an exercise in Tamil militants. The Sri Lankan government entrenching the majority’s cultural identity and did enact the Thirteenth Amendment to the political dominance in the Sri Lankan state. Constitution in 1987 to establish Provincial This alienated the minorities from the state in Councils, but it did not implement devolution what is a richly plural polity, although only the in the necessary spirit, which discredited the Sri Lankan Tamils had the numbers and sense whole system. The constitutional amendment of territorial and historic communal identity was also forced through by the government to mount an armed challenge to the state. despite violent opposition in the south. This, coupled with the Indian role, has placed How did the various peace processes a question mark over the legitimacy of try to address this? What other reform devolution, although over the years there has initiatives were there? been gradual acceptance of the Provincial Councils among most Sinhalese. As the armed conflict escalated in the 1980s, India succeeded in persuading all but one the regional power India attempted to militant group to return to the mainstream broker a settlement between the Sri Lankan peace process. This group, the Liberation © asianews / A protest against President Mahinda Rajapaksa against President A protest 2 Case Study / Sri Lanka Tigers of Tamil Eelam (LTTE), was the most the war came to an end in May 2009 with the powerful and most recalcitrant in terms defeat of the LTTE and the annihilation of its of a commitment to separatism, and it leadership. For the triumphalist government, continued its war against the Indian and which had framed the conflict as one of subsequently Sri Lankan military forces until patriotic heroism against Tiger terrorism, that its comprehensive defeat by the Sri Lankan ended matters, and no serious attempt was state in 2009. Successive Sri Lankan made to address the root causes of the conflict governments attempted negotiations with through a political settlement. the LTTE from 1994 to 2006. This included In 2015, a new reformist government was a Norwegian-facilitated peace process between elected. It is now drafting a new constitution 2001 and 2006. All of these initiatives were that will include a new devolution settlement aimed at a negotiated political settlement, (albeit within the unitary state), a new bill of which would pave the way for a new rights (possibly also including socio-economic constitution embodying some form of federal rights), a new multi-member proportional autonomy within the framework of a united (MMP) electoral system, a new territorial Sri Lanka. Some of these proposals were second chamber, and various other governance complex, asymmetric, and innovative power- reforms. The Tamil National Alliance (TNA), sharing arrangements. They could have the dominant parliamentary group of Tamil provided extensive autonomy for the north nationalist parties, holds the leadership of the and the east, together with rights guarantees opposition in the new Parliament and is playing for minorities throughout the island. While a central role within the current process. there were many shortcomings on the part of reformist and moderate Sri Lankan How did inclusion and protection of governments, it can be fairly said that many rights feature in the agreements or of these attempts ultimately failed because institutional reform approaches? of the LTTE’s lack of interest in autonomy within a united Sri Lanka and its unwavering The Thirteenth Amendment included commitment to a separate state. This was Tamil language rights. The various reform also a futile ambition, with major human costs: proposals of the 2000s included proposals at no stage was the Sri Lankan state so weak for extensive new Bills of Rights. The current as to permit separation, and India, with its own constitutional process envisages a major separatist movements, had consistently made expansion of the bill of rights, to deepen the clear that it would not allow the precedent scope of existing civil and political rights, of territorial disintegration of states within to introduce socio-economic rights, and to the region. extend group rights protections to cultural, The failure of the Norwegian-facilitated religious, and sexual minorities. The Public peace process, and public perception of the Representation Committee, which reported LTTE’s intransigence, enabled the election on public expectations of constitutional of a stridently Sinhala-Buddhist nationalist reform in 2016, has stated that there is government in 2005, which adopted a military widespread demand across the country solution. With massive loss of life, displacement, and across communities for greater rights and significant violations of international protections in the new constitution. In parallel, human rights and humanitarian law, which the there is also a transitional justice process state and the LTTE were both responsible for, taking place. The Consultation Task Force on 3 Case Study / Sri Lanka Reconciliation Mechanisms reported in 2016 to political process, including through vote bloc the government on measures for truth, justice, clientelism. However, a major factor was and reconciliation, reparations, and non-recurrence. is the question of the Tamil-speaking Muslims Significantly, it included the establishment of concentrated in the east. Tamil nationalists have a judicial mechanism (that is, a special court used the rubric of “Tamil-speaking peoples” and special prosecutor) with international to encompass the eastern Muslims within the participation to deal with allegations of Tamil nationalist claim, and thereby also to atrocity crimes during the war and to ensure expand their territorial claim to the Muslim- criminal accountability. A major source of majority areas of the east. Especially during the rights violations in the past, the Prevention of
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