CHAPTER 1

THE BATTLE FOR HUMAN RIGHTS –

SAME GAME BUT CHANGING RULES

1.1       The State’s response

1.1.1 Introduction

1.1.2 The importance of the struggle for democracy

1.1.3 Administrative breakdown

1.1.4 Law and law enforcement

1.1.5 Effect on the armed forces

1.1.6 Questions about democracy & the AI’s rejected recommendations

1.1.7 Freedom of the Press

       In Conclusion

1.2 The LTTE’s human rights record and the international community

1.1 The State’s response

1.1.1    Introduction

The underlying causes of human rights violations in Sri Lanka are far from disappearing or changing their form. The alienation of a variety of minority groups together with sectional interests cutting across all communal and religious boundaries exist, in combination with hardships arising from corruption, mal-administration and the hierarchy of economic domination serving narrow global interests. Power, which is mediated through these interests, would, whenever the need is felt, not shrink from violations. This much is almost tautological and is an everyday occurrence in world affairs. Out of both international and domestic compulsions, the Sri Lankan state, without addressing the critical structural questions, has been fairly successful in adopting a managerial response to criticisms about its human rights record. This means becoming more subtle and scaling down several of the uglier and sensational aspects of human rights violations - such as massacres and mass disappearances. Although several individuals within the state machinery who have been pushing this managerial response are taken to be well-meaning, the underlying discontent and the structural problems are so severe that this response will be limited in scope. It is likely to go no further than a temporary, but uneasy, equilibrium.

The recent Amnesty International report on Sri Lanka (February 1993) contains the words, “Since mid- 991, the Government of Sri Lanka has displayed much greater openness to scrutiny by international human rights organisations. This is a welcome development which

Amnesty International hopes will contribute to the strengthening of human rights protection, and the work of human rights organisations within the country”. The report then goes on to address inadequacies of the present mechanism for the avoidance of violations and makes recommendations.

The AI report makes note of the two recommendations rejected by the government which relate to the issue of impunity. These were among 32 recommendations made by the AI in 1991 of which the rest were accepted. The first was the call to repeal the indemnity act, which provides impunity from prosecution for the period 1^st August 1977 to 16^th December 1988 for   members of the security forces and others who acted in ‘good faith’ with regard to law enforcement. This interestingly covers the period starting from the anti-Tamil riots of 1977 to the eve of the 1988 presidential elections.

The second rejected recommendation had called upon the government to expand the mandate of the ‘Presidential Commission of Inquiry into the Involuntary Removal of Persons’ to include “disappearances” which took place before 11^th January 1991.

This as we shall show has serious implications for the enforcement of human rights by landing the government in a muddle of embarrassing contradictions.

The Civil Rights Movement of Sri Lanka in its statement of November 1992 makes the following pertinent observations: “Distressing reports of “disappearances” continue to be received from the Eastern Province. In the South, the sharp drop in the number of reported “disappearances” after the “peak years” of 1988,1989 and 199O is no cause for complacency. It came about as the result of the capture and killing of the leadership of the JVP and the consequent bringing under control of the violent insurgency that had dominated the political scene during those years. This led to a corresponding drop in the resort to counter-terror tactics of the security forces. In fact these unlawful activities by agents of the state or persons apparently acting with their connivance continued far longer than the circumstances that gave rise to them, and appeared to have gained a momentum of their own. They are by no means unknown today.”

We have quoted in this report a member of the Batticaloa Peace Committee describing the experience on the ground. After describing the current pattern of violations, which were on a much reduced scale, and the fairly successful public relations effort by the authorities, he concluded, “Everything that happened in the past can happen again. These are like tales from the dark side.” He described their experience as one where a sudden burst of evil shatters the normal calm. After the momentary chaos and destruction it is, hey presto, calm once more. The rest of this chapter will consist of reflections arising from these themes.[Top]

1.1.2    The importance of the struggle for democracy

Though undertaken largely for tactical reasons of survival of the state, our present and last reports substantiate the observation of several others, that an effort is being made to improve the image of state forces in respect of human rights in the North-East. But the repressive character of the forces armed with the PTA and a host of emergency measures remains intact. They have the power to take a persons life or detain a person indefinitely, often through sheer clumsiness, without being accountable. The head choppers on yellow motor cycles are a manifestation of the former. Undisciplined troops continue to kill civilians with impunity in operational areas.

Nevertheless we welcome the measures to scale down violations insofar as they reduce suffering and allow room for the kind of democratic activity that will address the structural problems that form the basis of organised violations. How far the current basis of power, its economic underpinnings and its allied local and global interests, can countenance the addressing of human rights violations is a question that we will not go into here. What is very suggestive is, as the AI report and CRM statement allude to, the great reluctance on the part of the government to change substantially, the ponderous repressive apparatus it built up during a particular set of circumstances. This ‘appears to have gained a momentum of its   own’ and represents the nervousness of those in power. It has resulted in a culture permeating all levels of national life,   where a barren authoritarianism jostles uneasily with debilitating fear. It may not be inappropriate to call it the PTA culture. At all levels a sense of obligation to morality and the spirit of the law have sharply declined with the rise of authority being exercised by fiat without fear of accountability. The crisis for the state has risen with hopelessness and injustice. An organised assertion of democratic values remains the last hope of challenging this drift. We now examine some aspects of the current state of affairs.[Top]

1.1.3    Administrative breakdown

This process which has been going on for decades is closely linked to the rise of populism in politics. This is nowhere brought into sharper focus than by the phenomenon of the presidential mobile secretariat, not lacking in precedents in the previous decades. It reflects the premise that the administrative machinery of the state does not do its job any more and that the president has to come personally and spend a couple of days in a provincial town to straighten out the backlog of routine problems that have piled up. Thus a district kacheri wakes up, goes into full gear for two months or more to prepare a package to enable the head of state to play Santa Claus. After two or three days of ceremonies, it is back to business as usual. Corrupt administrators do not often mind this. They know how to play the game. But competent administrators could find that plans and allocations made over months of hard work can be summarily dashed at the secretariat. This has been on occasions done through sweeping and humiliating gestures without allowing a hearing, for sheer political expediency.

The secretariat which met in Trincomalee shortly after the Muthur Ferry disaster, said that measures have been taken to ensure that such will not happen again. It has been known for nearly two years that passengers travel between Kalpitiya and Mannar in boats often dangerously overloaded. The ministry of transport has supervisory responsibility. Will this matter have to await another disaster or another secretariat in Mannar?

This breakdown is evident at many other levels which affect day to day living. Is it practically possible any more for people to challenge even the more jarringly improper actions of provincial and district administrators, university councils, irrigation officials whose actions can result in losses to local farmers and even clerks who send wrong bills? An interesting case is that of a newspaper in Colombo, critical of the government, whose offices were sealed by municipal authorities alleging non-payment of dues. The paper tried for a whole week to pay its dues, but was unable to find an official who would accept payment. When political expediency exercised undemocratically corrupts a working system, the corruption becomes institutionalised to serve a variety of private needs. The clamour for smaller administrative units and AGA’s divisions is a symptom of this breakdown and not a cure for the disease. In Trincomalee administrative breakdown is being used as a means to further Sinhalisation through covert induction of colonists. The resulting situation has been and will continue to be explosive.[Top]

1.1.4          Law and law enforcement

Nothing has done so much to bring the law and the judicial system into disrepute as the PTA and the practices it spawned. It enables people to be locked up on the basis of mere caprice,  wasting a valuable period of their life, while the press is fed with fantasies about their alleged villainy. In the case of most of the 4OOO Tamils released shortly after the Indo-Lanka accord of 1987 there were no charges. A senior of Tamil public servant was then released after nearly four years-no charges. The hearing of his case had been repeatedly put off for the lack of one. How would ordinary peasant boys and girls fare in this situation? Many of them had to bribe their way out rather than wait interminably for their case to be heard.

The current reality is hardly different. Even the innocent fearing that the authorities could drag a case on indefinitely are under heavy pressure to plead guilty to a less serious charge. Even when a charge does not have a basis, contesting it takes time, perhaps years. Relatives of detainees claim that they have been asked for money to negotiate the dropping of certain charges, which in any case would have been hard to establish. There is an almost universal belief based on hints of senior officials, that the leaders of the Up Country People’s Front are being held under the PTA mainly at the behest of some political rivals.

PTA cases thus mark a new departure in the history of civilised law. Qualifications for preferred lawyers in the game are not the usual ones. Courtroom dramas have become more than ever a charade. Rituals of lawyers have come to represent less either intellectual asperity or human kindness. The judge, familiar with the basis of the case, can hardly fail to see through the words as representing none other than a pre-arranged drama, reflecting the illicit money that is awash below his bench. Innocent villagers in the dock not comprehending what hit them, whose fates are being decided, gasp in horror when the prosecution speaks and cry in gratitude when the defence pleads on their behalf. The judge finally ends the charade “--- You have been found guilty of ----- (tears from the accused)-----But on consideration of -----“(joy and gratitude from the accused, “what a kind man!”). In the end hundreds of villagers are milked and ruined for no fault of their own. How long can the judiciary remain free of corruption in this system? Our system of law which once enjoyed legitimacy and respect is thus brought into contempt.

Policing: Politically motivated instances of police harassment and attacks on journalists and printing presses have been widely reported in the press in recent times. Several instances of arrest have a purely repressive character without having any basis in rational law. On 16^th February 25 undergraduates from the University of Peradeniya were detained by the Kandy police for protesting on educational issues and distributing leaflets calling for the reopening of universities. An activist detained for a week by the Counter Subversive Unit of the police in a provincial capital was questioned not about any offence, but about his links with two legally registered widely read newspapers critical of the government, and suchlike.

This arbitrariness of police behaviour in support of ruling interests also has another side. Repressive laws have also provided the tools and ideas for systematic corruption. Allegations that Tamil youth, particularly those arriving in the metropolis with plans of foreign travel, are detained regularly for the purpose of extortion, have become widespread. These have come from responsible sources. According to these sources an often used modus operandi is to inveigle them into signing a statement recorded in Sinhalese which they cannot comprehend, and use it for extorting money. We have also received reports of such treatment being accororded to Tamils coming from places like Saudi Arabia and Germany. Others have said that signatures are obtained on blank sheets and statements inserted later.

1.1.5 Effect on the armed forces

The Sunday Observer of 14^th February 1993 published a reply by the Chief, Joint Operations Command, to a letter from Rt.Rev.Thomas Savundranayagam, Bishop of Jaffna. The latter had made an appeal concerning the plight of civilians in Jaffna, and in particular the plight of travellers in the Jaffna lagoon and the naval massacre of 2^nd January [ Report No. 10]. The Chief, JOC, said in his reply:

“I believe the “tragic incident” you refer to   was an attempt by the LTTE to move men and materials in large quantities across the Jaffna lagoon for their terrorist operations on the mainland, under cover of darkness on 2^nd January 1993, which was thwarted by a naval patrol in the course of their duty . . .It is understood that terrorist casualties were heavy and they fled taking away their casualties. The patrol did not “kill 15 innocent individuals mercilessly and mutilate some seriously injured.” If 6O are reported missing, the LTTE has to be held responsible. . .”

The Chief,JOC, is known in private as an intelligent and enlightened man. According to those who spoke to him privately about the incident, he made no attempt to contest details that he has so publicly and harshly denied. The truth is well known publicly, to the media as well as the foreign missions. The denial serves no purpose. It will only make the Tamil people angry and increase contempt for the forces.

We have many more instances of callousness of this kind, devoid of intelligent purpose. When asked at the cabinet press briefing about the District Education Officer who was killed by the navy in the lagoon on 2^nd January and had an eye gouged out, the army spokesman replied with his own rumour, as his having heard that the education officer was executed by the LTTE. This spokesman, when brigadier responsible for Batticaloa, was described as a rational person with whom an intelligent exchange was possible. Then we have the current brigadier in Batticaloa imprudently using the brute power of the army to prolong the detention of women abducted and raped in army custody, so as to give the crime a different colouring [See 3.5].

All these are instances of the PTA culture deepening an existing crisis, and preventing the forces in thinking in terms of accountability. In normal civilised society the final say on these matters would have rested with judicial authorities following an inquiry. Here we have the final say resting with military men stunted by a culture which has taught them to think that they could do anything, say anything and others have to swallow it. The PTA and emergency regulations which enable the forces to take life at will has its own dynamic. If they try to be normal, decent men in public life, they run into other problems. There is room to think that the Chief, JOC’s reply was for the purpose of internal consumption, since no other purpose is served. He evidently has senior colleagues who ask him, “Whose side are you on?” . His public image would have been better served had he been constrained to anticipate a judicial inquiry. The power to evade accountability thus obstructs good men being good in public office. This is the essence of the PTA culture and it can never bring peace to this land.

On the other hand sensitive officers, who have thought through years of bloody failure, are slowly realising success in winning civilian confidence, and improving the general situation in their area by deliberately distancing themselves from the PTA culture. They have adopted leniency towards informers to the rebels and those who give them food. These are offenses under the PTA and punishment by summary death has been covered by the emergency regulations. Such officers have also taken care not to detain persons beyond the requirements of an inquiry. The series of repressive legislation ushered in by the PTA is therefore a burden on the people as well as the forces.[Top]

1.1.6 Questions about democracy & the AI’s rejected recommendations

On the surface things appear normal in parts of the East. But there is a deep underlying disquiet. Describing the STF’s apparently reformed role, one leading citizen said, “Lionel Karunasena, D.I.G, S.T.F., has really turned a new leaf. He is very different from the man I knew two years ago. Seneviratne, O.I.C, S.T.F., Thirukkovil, is a very understanding and enlightened man. You very rarely come across some one in the forces of that calibre. Siriwardene, O.I.C, S.T.F., 5^th Mile Post, Amparai Road, is a fine Buddhist. He doesn’t like to hurt anyone.” Then his tone suddenly changed, “I will never trust anyone in the forces. These fellows never came to do us any good!” This commonly felt dichotomy is a long term problem for both the forces and the civilians. The long standing problems like colonisation, tremendously important for the minorities, remain unresolved. Instead the matter is being left to attrition.

More immediate is the practical and emotional need for people to come to terms with massive death in their midst. In the case of Tamils, several thousands in the East were murdered by state forces. A mature self respecting community is naturally impelled to come to terms with its history, demand justice and work out the meaning for this massive suffering. This would take the form of working for a future of promise for the coming generations. To suppress these longings is to build a stunted community. Even if presidential commissions, task forces and law enforcement authorities wish to forget about disappearances before 11^th January 1991, the people will not. This will result in constant friction with the armed forces.

Recently three persons in an Eastern town, one of them a school principal, who were distributing forms and collecting information about loss of life and property were questioned for 3 days at the local security forces camp, being allowed to go home for the night. It was an attempt at intimidation. But because of the international machinery at work, they did not seriously fear for their life. This may be a relatively rare occurrence. But it is also the thin end of the wedge that underlines the limits of the state’s managerial response to human rights. There is a good deal of nervousness around. How far will things be allowed to go?

The time limitation placed on official inquiries into disappearances is fraught with many contradictions. The Sunday Times of 14^th February 1993 reported in its lead story that a brigadier and several soldiers from the war-front were brought to the Joint Operations Command H.Q. at Anuradhapura and grilled for 3 days by a top level CID team. The matter pertained to the 1989 abduction of 32 students from Embilipitiya. The inquiry followed the Human Rights Task Force, headed by Judge J.F.A.Soza, identifying a colonel (now brigadier), a captain (now major) and eight soldiers from the 6^th Artillery Unit then manning the ‘Sevana’ camp. The police, according to the report, have said that there was evidence linking the army personnel to the abduction of students and that a charge of abduction, carrying a sentence of up to 7 years was likely to be framed. They added that although the students are now presumed dead, there was insufficient evidence for a charge of culpable homicide.

Although this incident took place at a time prior to the date of 11^th January 1991 when the mandate of the presidential commission into disappearances took effect, the inquiry was precipitated by intense pressure from the opposition and the international community. Moreover the political establishment was not implicated.

If this recently promoted brigadier is found guilty and punished, he and his friends will look resentfully at other senior officers who are known to be responsible for worse and are being let off the hook. A relative of two young men among the 158 detained and taken away from the Eastern University refugee camp on 5^th September 199O told the Amnesty International that the detainees, who subsequently  disappeared, were taken to the Valaichenai Army camp. [See Report No.7:4]. The brigadier in charge has recently been posted to a sensitive area in the North with a large refugee population, which is closely watched by international organisations. He is not subject to investigation. Asked about this particular matter, not withstanding the commendable role it played in the matter of the Embilipitiya abductions, the Chairman, HRTF, told the Amnesty that they do not actively investigate ‘disappearances’. Then there is the matter of 16O prisoners killed and burnt on 9^th September 199O by personnel from the Saturukondan army camp, the Kalmunai massacres of June 199O by troops under a colonel and so on. Those raising these are mainly Tamils from the East and have so far not carried enough political clout. But the apparent exception being made for the Embilipitiya affair is going to make some officers very bitter and others very nervous.

The matter will not end here. While some officers in the forces are spoken of as being hatchet men for the political establishment, the general opinion about the political leadership among the forces is pretty low. Among the revelations of Udugampola, DIG of police, is that 65 or more opposition politicians were killed under cover of the JVP troubles by armed units taking instructions from senior figures in the ruling party. Evidently senior officers unable to bear the fact that a few of their colleagues were bringing discredit on the forces by performing dirty jobs for politicians of the ruling party, had complained to Mrs.Bandaranaike, Leader of the Opposition, who made a statement in parliament in January 199O, [ Report No.4]. Later in the year, according to sources in a prominent daily, a leading police association had passed a resolution dissociating itself from political killings and alluding to a few in the force having lent themselves to such use. The statement after being composed was taken out on the verge of going to print, following an internal leak and orders from the management. Thus freedom of expression is a problem even for the forces.

Thus a few in the armed forces being disciplined for violations, whether in the South or in the North-East, will eventually turn the heat on the political leadership. It is hardly surprising that there has been a good deal of procrastination. A columnist for the ‘Sunday Island’ [14^th February 1993] has suggested that the current official verbal, administrative and physical harassment of the press is aimed at obviating local repercussions of the anticipated publication of Udugampola’s revelations in the USA.[Top]

1.1.7 Freedom of the Press

Whenever the opposition raises the issue of freedom of the press the government goes on citing the acts of the present opposition during its period of office against private ownership of sections of the press. There is   legitimacy in questioning the present opposition’s attitudes to the freedom of the press. The qualitative difference between past and the present actions is that earlier (1970-1977) it was economic pressure on press men but now it is direct terror unleashed on individual journalists. In earlier actions the journalist’s job security might have been affected. But today each journalist has to think about his physical security if he is going to write something critical about personalities at the top. The situation today is very tense. Although outwardly we see a number of papers which are critical of the government, a general feeling of fear lurks behind.

The FMM is itself a courageous response to a crisis that has been brewing for decades. If it is to gain the crucial international solidarity it needs, it must also address the question of how free the press is in representing minority concerns, and how high the integrity in reporting events in the North-East. [Top]

In Conclusion

But the underlying crisis remains un addressed. Governments which have on the surface succeeded in a managerial approach to human rights have enjoyed a specially favoured position in global economic relations. The Singapore government has carefully targeted individuals who raised questions of morality, conscience and social justice through a mixture of security legislation, harassment, character assassination, court action, imprisonment and deportation. It succeeded, and will probably succeed as long as the country’s precariously poised economic position allows the government to win over the populace with material rewards. Even then the clumsiness, crudity, falsehood and vindictiveness have not been lost on the populace.

Despite the oft stated aspiration, Sri Lanka, governed by a very different set of circumstances is very unlikely to become another Singapore. The UNP government which came to power in 1977 consciously tried to imitate the Singapore model hoping that a dose of consumerism spread around to detract from Singapore style repression of labour, would do the trick. Public discontent, corruption, a resort to refuge in communalism by the state, the holocaust of 1983, civil war and the JVP troubles ended the dream.

President Premadasa evidently tried a repeat performance while at first trying to handle the Tamil question more carefully so as not to let it jeopardise his economic programme. But the state continued to suffer from its accumulated inertia as well as from the personal failings of national leaders.

In response to the recent crises and widespread criticism from the international community, the government appears to be reverting to a more measured pragmatic approach. Among its greatest handicaps for a managerial approach are administrative breakdown and corruption.

Further, nerves are taut and could snap anytime. Then it may be another tale from the dark side. The strained and hysterical quality of attacks on the press is a bad sign.

We have constantly argued that there must be accountability for what the people have suffered as a result of actions of the state. In no other way can the state win over the minorities, the Tamils in particular, and give them confidence. If not the Tamil youth, who have no major opposition party to give them confidence, will find the LTTE’s kind of destructive approach the most ready alternative. One of the urgent tasks is the repeal of the PTA and its train of repressive laws.

This is partly covered by the Amnesty International’s two rejected recommendations. We have argued that not to implement these recommendations   strictly, would result in acute long term friction between the people and the forces on one hand, and the forces and the political establishment on the other.

A democratic consensus remains the only hope for purging the country of the effects of its ugly recent past, placing respect for human rights on a permanent basis, making the long overdue structural changes and evolving social and economic goals for the future.[Top]

1.2 The LTTE’s human rights record and the international community

Of course the Tamil people who have endured much suffering since July 1983 and before still have active groups of sympathisers in many important capitals around the world. In order to activate this sympathy, a group that claims to represent them must have a demonstrably credible and reasonable set of demands for which support can be mobilised and other governments made convinced of. It is far from adequate for LTTE spokesmen to vaguely suggest federal powers for the North-East, while everything else suggests that its regime would be oppressive and conflict - prone. Can it massacre Muslims and insist that they will be respected citizens of the North-East? Can it maintain thousands of dissidents in underground bunkers in sub-human conditions and maintain that its rule would respect human rights and democratic freedoms? Is it in a position to convince the Sinhalese majority of the country that their legitimate interests in the North-East and pluralism will be assured? Making federalism an active proposition for the North- East means more than affording photographic opportunities to suggest that the LTTE leaders are human. It rather requires active campaigning among the Muslims and Tamils, including dissidents,to convince them that they have a common stake in its proposals and also the Sinhalese majority to allay their fears. The LTTE ‘s recent past appears to militate against such a role.

All that now lies by the wayside. Current negotiations about opening a safe passage to the Jaffna peninsula, a relatively straightforward matter, after recent civilian deaths in the lagoon, have received such prominence and concern because of the LTTE’s indefensible positions, so as to overshadow all long term issues. If the use by civilians of Elephant Pass gave the army a military advantage, which is doubtful, the same cannot be true of the Puneryn crossing. It is practically impossible for the army to launch an offensive into the Jaffna peninsula across a stretch of water from its Puneryn camp. Given that the main issue is to afford the civilians safe passage while a war is being fought, recent positions have shown again the callous disregard LTTE has for the civilian population. It again subverts the LTTE claim of being a liberation group possessing a greater sense of responsibility for the civilians than the state.

To those unfamiliar with the long history of the Tamil struggle, the cause would have thus taken a doubtful appearance, doing a grave injustice to thousands who have sacrificed so much. Had the government been more creative, it would have clean won a major political battle over the Tigers. It’s callous and imbecile insistence on shooting hapless civilians in the Jaffna lagoon left its own credentials in further doubt.

As long as the Tigers, articulating their associated politics, are seen to be the representatives of the Tamils, the cause will seem a doubtful one. If the Tigers go on adopting such negotiating positions on straightforward humanitarian issues, which casual observer will after this believe that colonisation, a life and death problem for hundreds of thousands of Tamils, is indeed a real problem?

Lacking in human values and a political programme to offer dignity to the people, the aridity of the Tigers’ politics becomes evident in parts of the North-East, particularly where the forces have observed discipline for a reasonable uninterrupted period. Because of its long history and their experience of oppression, Tamils instinctively believe in the struggle, although entertaining doubts and confusion about the LTTE’s peculiar cause. But beyond this, for the East in particular, the LTTE has ceased to offer hope. Their experience of this group is increasingly confined to terror and extortion except in areas where they feel immediately threatened by the forces. Can this lead anywhere?

While the government is being made to respond positively and become more subtle, not least due to international pressure, a Tamil militant group cannot go on as if nothing has changed. The government needs to be challenged politically on a whole host of unresolved problems. This requires an independent force in the North-East that can mobilise the people politically. Tragically, the LTTE’s purblind militarism destroyed all independent political activity and stifled the spirit of the people. Its constant attempts to recreate conditions of July 1983 provided the state with alibis for not addressing the questions that so trouble the minorities, while their position constantly became worse.

If the LTTE hopes to survive, it needs to respond positively to the demands of the international community. If not it will be a long night for the people of the North-East.[Top]

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