THE SOCIAL CONSTRUCTION OF JUSTICE: SEARCHING FOR CONNECTION AND CREDIBILITY IN SRI LANKA MALEEKA SALIH A thesis submitted in partial fulfilment of the requirements for the degree of Doctor of Philosophy QUEEN MARGARET UNIVERSITY AND UNIVERSITY OF EDINBURGH 2013 Abstract Research in Sri Lanka suggests that many people experience a deep scepticism about the chances of achieving justice. This is true not only of those who had suffered the most gross forms of human rights violations in the country’s past conflicts but, surprisingly, also of those caught up in more ordinary forms of everyday disputes and grievances. The prevalence of this sentiment of pervasive ‘injustice’ – captured in one informant’s pithy statement that “only the powerful get justice in Sri Lanka” – compels closer scrutiny of the broader processes and politics of justice-seeking. This thesis, based on research carried out in 2008 and 2009 and on the analysis of detailed accounts from 110 informants in 3 geographical locations, studies this quotidian experience of justice-seeking and dispute settlement work in Sri Lanka. It provides insights into how the broader political and social environment shapes the possibilities of a just outcome for any of its citizens. The thesis reveals the overriding power of social and political factors in the justice-seeking process. Becoming ‘known’ in a way that establishes the credibility of disputants is important. This is an inherently social exercise in which dominant notions about credibility and legitimacy as defined by the state are reinforced. The thesis illustrates the crucial role of the state in everyday dispute management. The police are a key resource for mediators and disputants, who seem to rely most notably on the police’s acknowledged potential and actual capability for violence. Persons who are seen to be politically suspicious are especially vulnerable to such violence. Who constitutes a ‘suspicious’ person, however, is in flux. The thesis shows that attempts which focus narrowly on law reform and human rights advocacy will be in vain unless the social and political processes driving the implementation of justice are acknowledged and addressed. ii Acknowledgements Writing this thesis has been a long and difficult task, taking the better half of a decade! Many people have helped me at various stages of the research and thesis, all of whom cannot be named here and to all of whom I am truly grateful. My heartfelt thanks must go first to my supervisors, Prof. Jonathan Spencer and Dr. Alison Strang. I have been very fortunate to have you as my supervisors and I deeply appreciate the time, guidance, support and encouragement you have given me over the years. The research and writing process has been supported by grants from The Scottish Executive and the Lloyds TSB Foundation of Scotland in the UK, and The Asia Foundation in Sri Lanka. I would especially like to thank Dinesha de Silva and Ramani Jayasundere at The Asia Foundation for allowing me to use the material from the consultancy for my PhD. Anurudhdha Basnayake from KCDF, Mohamed Mihlar from CTF, and Kala Pieris de Costa from Siyath Foundation kindly agreed to allow me access to the research sites through their organisations. Thank you too to the staff at KCDF, CTF and Siyath, who took time out to show us around and who introduced me, and the team, to the villagers in the three locations. I am indebted without measure to those who shared their stories and personal experiences with me and the research team members, without which this thesis would not exist at all. A big thank you to Sagara Chandrasekera for coordinating the field component, to Ann Sriyani Perera and Aloy Diaz for being my travel companions and translators in the field and for the written translation of the interviews, to Thilani Ariyaratne for painstakingly transcribing the tapes, and to the research team, I. M. Basith, S. Kajanthan, J. M. Harris, B. D. Anurudhdhika Rajapakse, M. P. Deepthi M. Weerasinghe, K.H. Nadeesha Dilrukshi, G.A.K. Perera, L.D. Priyanka Lakshman, M. S. Mohamed Haan, M. H. M. Maziyya, and E.M. Ruwan Kaminda for your commitment during the months of fieldwork. I owe a huge debt of gratitude to my friends; Ananda Galappatti, Sarala Emmanuel, Harini Amarasuriya, Ruth Marsden, Eshani Ruwanpura, Asha Abeyasekera van Dort, Gameela Samarasinghe, and Jeanne Maracek, for your remarkable friendship and support and for your practical suggestions. Ananda, a special thanks to you for coming up with the idea of a joint PhD process, and to my supervisors Jonathan and Alison, for making it happen. I am very sure I would never have started one otherwise! I would like to say a special thanks to the Strang family, Alison, David, Gordon, Elspeth and Rachel. I owe the completion of the second draft entirely to your generous hospitality and warm kindness last summer. Thank you, too, to Rachel Strang, who cheerfully showed up many an afternoon throughout 2013 to play with Mira and keep her company while I worked. iii To Lucy Holdaway, Joanna Watla, and Charlotte Hennessey, thank you for so generously giving me the much-needed last minutes to work on my thesis and for many moments of sanity. Thank you too to Otto, Louis, Olivier and Ethan for sharing their mums with Mira during these hours! I would like to thank my nephew Mohamed Ash-har Abdul Rasheed, whose stay with us coincided with my writing the thesis and with whom I had many hours of passionate debate over ideas and issues of justice, all of which I thoroughly enjoyed, and which influenced my thoughts and strengthened my motivation to continue with my research into this topic. I would also like to say thanks to Aisha, Oliver, Claudia and Cord Bredemeyer, to Azzath Salih, and Ash-har and Ashna Abdul Rasheed, and to Lamya and Nathan Wilson and their children, Elizabeth, Alexander, and Annabelle, for their patience with my long silences and absence and support whilst I struggled to write the thesis. Thank you also to Aishath Shaaly for sharing her wisdom and experience and telling me that I could do it too! Zindu Salih, Sarala Emmanuel, Harini Amarasuriya and Fareeha Shareef: thank you for being there for me whenever I needed some support, whether it was encouragement, sympathy, or practical support. Zindu, Sarala and Harini read through many versions of this thesis with great patience. I am grateful for all your comments and suggestions. I would like to thank my parents and my sisters for their encouragement of my education. Mum, your prayers and support has been a source of comfort during this long process. Zindu, your love and support has been invaluable. Thank you especially for all your help with editing the final version of the thesis in the very dark hours! To Markus Mayer, thank you seems inadequate. Your enthusiasm and absolute confidence in me that I would finish it, especially during those times when I lacked this the most, has sustained me throughout. Thank you also for the many moments of laughter, which made all this bearable! Finally, to our daughter Mira Salih Mayer, for showing up at just the right time and being all the inspiration I needed to finish the thesis. iv List of Acronyms ACMC All Ceylon Muslim Congress ADB Asian Development Bank AHRC Asian Human Rights Commission CIC Ceylon Indian Congress CID Criminal Investigation Department CTF Community Trust Fund CWC Ceylon Workers’ Congress DCS Department for Census and Statistics ER Emergency Regulations GA Government Agent GN Grama Seva Niladhari GS Grama Sevaka ICG International Crisis Group IGP Inspector General of Police KCDF Kundasala Community Development Fund JVP Janata Vimukthi Peramuna LRC Land Reforms Commission LTTE Liberation Tigers of Tamil Eelam MP Member of Parliament NGO Non-Governmental Organisation NPC National Police Commission v OIC Officer-In-Charge PA People’s Alliance PADHI Psychosocial Assessment of Development and Humanitarian Interventions PDHS Provincial Department of Health Services PTA Prevention against Terrorism Act SLFP Sri Lanka Freedom Party SLMC Sri Lanka Muslim Congress TAF The Asia Foundation TISL Transparency International Sri Lanka TNA Tamil National Alliance TULF Tamil United Liberation Front UK United Kingdom UNDP United Nation Development Programme UNP United National Party UPFA United People’s Freedom Alliance vi Table of Contents Abstract .............................................................................................................................. ii Acknowledgements ................................................................................................................. iii List of Acronyms ..................................................................................................................... v Table of Contents ................................................................................................................... vii List of Tables and Figures ....................................................................................................... ix Chapter 1 Introduction .......................................................................................................... 1 Why Study Justice? ............................................................................................................. 3 Research Questions ............................................................................................................. 9 Interpersonal Disputes, ‘Problems’, and the Study of Justice ........................................... 10 Structural Violence within Processes