T H E A S I A F O U N D A T I O N

Focus on Sri Lanka

A S I A NP E R S P E C T I V E S

S E R I E S1 Introduction

Opening RemarksAmbassador Teresita C. Schaffer

3 The Issue of GovernancePaikiasothy Saravanamuttu

8 Legal Aspects of Human Rights IssuesPrashanthi Mahindaratne

12 Alternative Dispute ResolutionDinesha de Silva

16 Concluding RemarksAmbassador Teresita C. Schaffer

19 Questions and AnswersFocus on Sri Lanka Panel

29 Seminar Participants

Clearly, there are challenges inherent in the very notion of

nation-building anywhere in the world. In the case of Sri Lanka,

however, the challenges are that much greater because nation-

building, if it is to be successful, must endeavor to accommodate

and even reconcile the deeply held differences within our society.

PAIKIASOTHY SARAVANAMUTTU

Executive Director

Centre for Policy Alternatives

T H E A S I A F O U N D A T I O N

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A S I A N P E R S P E C T I V E S S E M I N A R

Asian Perspectives: Focus on Sri Lanka is part of an

ongoing series of seminars sponsored by The Asia

Foundation. Convened on September 10, 1998, at The

Carnegie Endowment for International Peace in Washington,

D. C., the seminar focused on Sri Lanka’s challenges to

and prospects for political and constitutional reform, legal

protection of human rights and the security situation, and

new avenues for resolving disputes in Sri Lanka.

Opening Remarks

By the Honorable Teresita C. Schaffer,

Center for Strategic and International Studies;

Former U. S. Ambassador to Sri Lanka

As I was being sworn in as the U.S. ambassador to Sri Lanka

in 1992, I can remember taking note of the fact that universal

suffrage is one of the many inspiring facts that describe this

country off the southern tip of India. Suffrage as a right has

been in place since 1931 in Sri Lanka! Nevertheless, it remains

something of a mystery to me why Sri Lanka has not been

able to take more effective advantage of the wealth in human

resources that women offer. I must confess that this mystery

had deepened by the time I left the country three years later.

I recognized then, as I do now, that I had not even begun to

unravel all that Sri Lanka represents and therefore, the wise

approach is to bring a sense of humility when trying to

understand a society that is not one’s own.

Arriving at this understanding also has meant that the

mystery describing Sri Lanka at the beginning of my tenure

there, is the mystery that comes to mind today whenever I

reflect on the country. Sri Lanka is a place where all communi-

ties — even that which represents the majority — feel that they

are in the minority. The Tamils and the Muslims are truly

minorities on the island, for example. The Sinhalese, on the

other hand, enjoy the majority in terms of numbers, but feel

like they are in the minority whenever they — or anyone else,

for that matter — look out across the Palk Straight in the

direction of the tip of India. Meanwhile, the people of Sri

Lanka feel very deeply about the effort that has been and is

being made to resolve the ethnic problems that continue to

plague Sri Lanka.

These kinds of perceptions also color the politics of the

country. In fact, it seems that rather existential issues are

among those that are the most important facing Sri Lanka

today. There also is a paradox here. Whenever someone takes

note that the economy is showing encouraging signs, notice

also must be paid to myriad issues that have resulted from

years and years of ethnic strife. Indeed, when Sri Lanka got

its independence in 1948 from Great Britain, the new country

was viewed as one of Asia’s most promising economies.

But little was done for almost 40 years to build on the

economy’s most productive sectors. A lopsided pattern of

development resulted. For example, extraordinary strides

were made in the so-called soft sectors, like health and educa-

tion, and in the sectors that impact a citizen’s quality of life.

In fact, Sri Lanka became a leader throughout the developing

world in all these areas.

Only recently has the economy begun to grow in those

sectors that hold out genuine opportunity for expansion.

I also take note here of the fact that the benefits flowing

from economic expansion have not been distributed very

well. For the moment at least, all this adds up to the fact

that Sri Lanka is enjoying growth rates that are encouraging,

Introduction

relatively speaking. Still, underlying problems remain,

reflecting this lopsided pattern in the economy. It is true that

virtually every country in today’s developing world has had

problems of one sort or another in recent times. It is not my

intention to exaggerate or overstate any criticism or observa-

tion, implicit or otherwise. Instead, it is my intention, and

hope, to sketch a backdrop against which the politics of Sri

Lanka, the country’s search for peace, its defense of human

rights, and all the other issues it struggles with, can be assessed

and ultimately understood.

2

The Issue of Governanceby PAIKIASOTHY SARAVANAMUTTU

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A S I A N P E R S P E C T I V E S S E M I N A R

Concerns about governance in Sri Lanka flow both from

a protracted internal ethnic conflict that dates back

over 40 years and from problems that originate outside the

parameters of the conflict. Not the least of these is the fact

that Sri Lanka is very much in the throes of a nation- and

state-building crisis.

Clearly, there are challenges inherent in the very notion

of nation-building anywhere in the world. In the case of

Sri Lanka, however, the challenges are that much greater

because nation-building, if it is to be successful, must

endeavor to accommodate and even reconcile the deeply

held differences within our society.

Nation-building and the need to bridge ethnic differences

go hand in hand. In the Sri Lankan case, there is also a certain

irony in that the very durability of certain anti-democratic

actors makes them responsible for so much of the conflict,

on the one hand, and, on the other, it means that they

end up being a catalyst in the process of democratization.

This is especially so with regard to constitutional structures.

At one level, we are talking about a society that is

pluralistic and highly educated, which nevertheless needs

to lay down constitutional ground rules for governing

relationships between the majority and the minorities.

The act of achieving independence in 1948 was not the

result of an all-out struggle involving everyone and now,

50 years after formal independence, there is a sense that

these issues have to be debated and decided.

It may be wishful thinking, but had a tradition of mass

action been established, Sri Lanka might be able to resolve

these issues today through more conventional methods than

by resorting to armed force. Consequently, we are at a point

where much needs to be done.

The contemporary debate in Sri Lanka is focused on

national integration as encapsulated by the slogan, “One

Country, One People.” This needs to be seen in context,

and therefore a certain amount of information about the

historical evolution of the political and social structures is

instructive in understanding the problems of governance in

Sri Lanka today.

First, the entire political and constitutional evolution

continues to unfold in a context that emphasizes the

consolidation and centralization of power. This is the case

in many developing countries. In Sri Lanka, we have moved

from a colonial legacy with an emphasis on parliamentary

democracy and the vesting of all power in parliament to a

situation where power is vested in the office of the chief

executive — the president. We have arrived at this situation

even though we began with a parliamentary system.

In my opinion, this is attributable to the fact that

there has been no tradition of mass demonstration or an

independence struggle conducted in the name of the people.

Indeed, former President Jayawardene, the architect of the

current constitution, was quoted as saying that the only

power the executive president does not have is the power to

change a person’s sex! This is today’s reality. Parliamentary

democracy is but a façade. Real power and authority lie

with a single individual and a single institution, namely the

office of the president. The consequence is a political culture

that is statist and woven around the centralization of power.

It has led to the partisan politicization of civil society

and the attendant problem — when one thinks in terms of

checks and balances — of forcing people into operating

within the context of political parties as the effective vehicles

for political and social change. It means that civil society to

achieve its aims relies on a network of power relationships

that are realized in private soirees or on the cocktail circuit.

In effect, success is by virtue of

partisan political allegiance

and socioeconomic status.

The media also figures in this

complex set of circumstances.

Because of the prevalence of

partisan political allegiances,

both the print and electronic

media are precluded from

functioning as effectively as they

should — as a bulwark against

authoritarianism. Instead, the

media ends up as part of a set

of forces for which it is also

an apologist.

Another dimension to the

problem of governance is the

question of youth unrest. It is no coincidence that young

people in the south of the country spearheaded two insur-

gencies, one in 1971 and the other from 1987 to 1989.

In both cases, they mounted armed challenges to the state

from within the majority community. In the case of Tamil

militancy, too, it was the youth who grabbed the initiative

and challenged prevailing notions of nationhood.

There are reasons for youth discontent. Even though

education is free, including at the university level, there is

the perception of a gap between government promises and

performance, especially in the provision of viable employment

opportunities. Government is seen as a discriminatory actor

and, in some instances, as a predator and not as provider or

protector. It is perceived as antagonistic because it is not

able to protect or provide to the extent that it has promised

it would.

Falling short in its performance, government then turns

increasingly authoritarian in its efforts to maintain control.

This is the case in Sri Lanka and the youth have borne the

brunt of it. Indeed feelings of

alienation are at the heart of vir-

tually every problem, whether it

is focused on education or on

hopes of breaking into the political

and social mainstream. The

whole question of widespread

access to social and economic

power is an important aspect of

insurgency in Sri Lanka and of

the current conflict in the north-

east of the island.

Put simply, these feelings

translate into a demand for a

state of one’s own based on the

perception that the state as it

exists, will never have one’s inter-

ests at heart. Another expression of this is the project to

hijack the state and make it one’s own. The southern youth

insurgencies manifested this in particular, while the northern

one is secessionist in inspiration and design.

Both these factors — youth disillusionment and ethnic

factionalism — came to a head in the 1970s and 1980s.

Literature on the crisis of governance and the legitimacy

of the state in South Asia, including Sri Lanka, emerged in

this period. In fact, the dynamics of the problem in Sri

Lanka were similar to what was happening elsewhere in

Asia. The market was opening up and overall liberalization

4

The whole question

of widespread access

to social and economic

power is an important

aspect of insurgency

in Sri Lanka and of

the current conflict

in the northeast of

the island.

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A S I A N P E R S P E C T I V E S S E M I N A R

of the economy had commenced. Clearly, the process was

not a smooth one. It did not happen without the usual

pangs — or without certain accomplishments, for that matter.

This period promoted a reorientation of the citizen-state

relationship in which the state now had to be seen as more

of a facilitator rather than the provider of the welfare and

well-being of everyone. This has resulted in greater pluralism

in the distribution of power in terms of bringing to an end

the overwhelming dependency on the state for education and

employment. While the state certainly has a role to play in

these areas, other options now are available.

The events of the late 1970s and 1980s served as the

backdrop to the general election of 1994. Expectations ran

very high that the election would be the catalyst for peace

as well as for good, clean government. Above all, people

wanted a clean break. They saw the preceding two decades

as having embraced years of single-party government,

insurgencies in both the north and south of the country,

horrendous human rights abuses, corruption, and extreme

authoritarianism.

The leader of the Peoples Alliance, Chandrika

Bandaranaike Kumaratunga, who was first elected prime

minister in August 1994, and then president in November

1994 (with a massive 62 percent mandate) promised peace

talks with the Liberation Tigers of Tamil Eelam (LTTE),

the secessionist Tamil militant group. She also promised

constitutional reforms that would free up society, resolve the

ethnic conflict, abolish the executive presidency, and restore

parliamentary democracy.

While an unprecedented devolution package has been

proposed to resolve the ethnic conflict, it has yet to be

approved by parliament and to be implemented. A number

of the other electoral promises made in 1994 also are yet to

be fulfilled. Four years later, there is a general sense of

malaise and a feeling that can be best described as one of

being stymied on all fronts, not the least of which is the

resolution of the ethnic conflict.

The latter has stirred up quite a lot of debate in Sri

Lanka of late. At times, this debate is sterile, and at other,

it is fruitful. It invariably focuses on whether there is a

terrorist problem or an ethnic conflict — and whether a

military strategy can be deployed productively in search

of a political solution.

A key question is whether there can ever be peace with

an avowedly secessionist organization that is fascist in out-

look, like the LTTE. For example, would the LTTE be inclined

to regard an attempt to negotiate as a sign of weakness on

the government’s part? Would it therefore try to hold out

against negotiations in the belief that it could succeed with

plans for secession? Recent history suggests that the LTTE

leadership is not interested in a peaceful resolution.

Nevertheless, the challenge of finding a solution remains

for all those who are interested in good governance and

Sri Lanka’s future prosperity. Resolution of the conflict is

not only critical for prosperity and governance, it is the key

to the country’s survival. Why do I say that? At present, the

Sri Lankan government is forced to operate with a crippling

defense budget. The manpower requirements that are neces-

sary to take territory from the Tamil Tigers and then hang

on to it are tremendous. Extensive resources are needed to

provide relief and rehabilitation to people in the northeast,

in particular to the Tamil minority who have been victims of

what must seem like endless military activity for the past

15 years.

The war has become a thing unto itself. For example, the

government recently postponed provincial elections on the

grounds that security considerations necessitated this. Failure

in this respect, the government maintained, would work to the

advantage of the LTTE. Holding to this argument, the govern-

ment not only postponed elections but also demonstrated that

its strategy had impaired its ability to fulfill a basic function of

democratic governance, namely holding elections.

What is required to resolve the ethnic conflict that is

tearing up the country? Both the government and the main

opposition party have begun to say publicly as well as in

private, that there must be negotiations with the Tigers.

However, I am of the opinion that the leaders in government

and in opposition do not comprehend what negotiations will

entail. Moreover, they do not appear to have a clear appreci-

ation of the nature and scope of the conflict. It is a problem

of mindset and perspective.

It has been said that Sri

Lanka is a country of many

minorities. It may be a cliché,

but there is a certain amount

of descriptive power in the

characterization of a majority

community in Sri Lanka with a

minority complex and a minority

community with a majority com-

plex. For example, there is an

almost atavistic sense of insecurity

on the part of the Sinhalese

community — the overwhelming

majority in the 25,000 square miles that make up the island.

With this mindset, Sri Lanka is their home in a way

that it is not the home of the Tamil minority. The latter

are separated by 22 miles of sea from the 60 million or so

Tamils who live in southern India and the millions of others

who live in Southeast Asia and elsewhere in the world.

Likewise, from this perspective, the Muslim minority is

seen as part of a wider international Islamic community.

Majoritarianism is ingrained deeply in the Sinhalese

psyche. Any attempt to move beyond the narrow expression

of this, say with an argument that favors genuine devolution

or sharing of power, is often met with fierce resistance.

The belief seems to be that power shared is power usurped.

Arguments calling for devolution and power-sharing as a

means of ending the ethnic conflict have traditionally been

rejected outright.

In my opinion, history is leaving behind those who

promote the unitary state and who turn their backs on

federalism and the notion of power sharing. Apparently

those in the government of Sri Lanka think the same. For

the first time in Sri Lanka’s political history, the government

in Colombo has come forward with a package that pro-

motes devolution. It is a package

that needs the support of both

the government and the opposi-

tion before it can be incorporated

in the constitution. Any change

in the constitution requires a

two-thirds majority in parliament,

plus a simple majority of the

people voting in an island-wide

referendum. Those who can

implement the proposals in

the northeast would have to

be identified as well.

The current position is that

the principal opposition party, the United National Party

(UNP), is not willing to support the government’s proposals.

It is a stance taken on the petty partisan calculation that they

would be locked out from power indefinitely if the govern-

ment succeeded with these proposals as the basis for a

peaceful solution to the conflict. Because the opposition has

significant support, the issue is deadlocked.

It is also complicated by the fact that the government has

declared its intention to bypass parliament and go directly to

the people in order to break the stalemate and change the

constitution. Obviously, this could have serious repercussions

for democratic governance in Sri Lanka. Were the govern-

ment to obtain just 50.1 percent of the popular vote, it very

well could go ahead and promulgate a new constitution.

6

History is leaving

behind those who

promote the unitary

state and who turn their

backs on federalism

and the notion of

power sharing.

It is worth noting that during the last 20 years, each

time a party has won government, it has changed the

constitution. This is a practice that calls into question the

very concept of due process. If this continues, it will present

even more serious problems down the line. It is a quick fix

that begs the question of the durability of a constitution so

enacted. The next government could well resort to the same

expedient and change the constitution yet again. It also

raises the question of whether the minorities can support

a constitution that is subject to frequent change, however

strong the guarantees are for them personally.

The stalemate continues and with it, the slow realization

that the government and the LTTE have to talk directly.

There have been resource persons from Northern Ireland

and South Africa who have shared their experience in conflict

resolution with Sri Lankan parliamentarians. Yet, without a

change in the mindset on both sides in Sri Lanka, the conflict

looks set to continue for some time.

The LTTE is a very fascist group that does not have the

full support of the Tamil people, as it claims. They cannot

be marginalized militarily or politically, as the record shows,

and therefore must be dealt with through negotiations. This

will entail moving beyond old notions of what the state has

to do and what the state ought to be. In the meantime, it is

possible that some could end up being the catalyst for a

whole new movement.

That said, our political leaders still have to feel a greater

sense urgency than they feel at present if this conflict is to be

resolved — and if we are to realize success. If our leaders fail

in this, they risk sacrificing everything achieved so far and in

effect, returning us to square one.

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A S I A N P E R S P E C T I V E S S E M I N A R

Legal Aspects of Human Rights Issues by PRASHANTHI MAHINDARATNE

8

In the convulsive atmosphere that surrounds the conflict

in Sri Lanka, the legal ramifications in the human rights

arena are particularly noteworthy. Two main aspects, with

certain peripheral dynamics, are instructive in describing the

current security situation.

First, separatist minority Tamil guerrillas, led by the

Liberation Tigers of Tamil Eelam (LTTE), are waging what

is now nearly a two-decade-long war against the state. They

continue to provoke combative situations in pockets in

the north and the east between the LTTE and Sri Lankan

armed forces while also trying to infiltrate the so-called

non-combatant areas.

Peripheral yet important to understanding the situation

is the violence that the LTTE is perpetrating also in the

political arena, mainly against Tamil politicians. A dramatic

case in point is the back-to-back assassination of two

mayors of Jaffna. Second, Sri Lanka is no exception to

the fact that very frightening aspects are present whenever

fighting poses a threat to civilian life. Here, it would seem

that the government has little choice but to do what it

can to maintain civil order, including in those areas where

combat is occurring.

For example, the government made a decision to step up

the security alert in Colombo following a series of attacks

and bombings at the Central Bank and the Galadari Hotel.

Security measures also were strengthened in other cities as

a result of the violence, with the result being restricted

movement, especially in certain areas. The measures included

road blocks, security check points, the random checking of

vehicles as well as of individuals, and the otherwise generally

close scrutiny of people, especially those who travel from the

north and the east to non-combative areas.

One result has been the bringing of several claims

of human rights violations, mostly on the part of the

Tamil community.

It is important here to acknowledge that a very real

security threat existed — and to recognize that security

measures are essential in the present context. It also is

important to bear in mind that with extraordinary security

measures in place, there also is the potential for the abuse

of power and arbitrary use of authority by the military

personnel whose job it is to keep areas safe.

Also, so-called “war crimes” need not be limited to mili-

tary personnel. They can be, and have been, initiated by

armed combatants who operate under the LTTE’s banner. In

fact, it is unfortunate that all too often only military personnel

are brought up in connection with “war crimes,” while

violations at the hands of the LTTE get swept under the carpet.

Allow me to mention briefly and then return later to the

widely known Krishanti Kumaraswamy case. This is a case

with which I personally am familiar, having served as a

member of the prosecution team. The Krishanti Kumaraswamy

case involved the rape and murder of a young woman in

September 1996 in Jaffna. The verdict that ultimately was

handed down found the authorities charged with involvement

guilty and, in the process, countered a prevailing notion that

government security forces throughout the country were

entitled to blanket immunity from prosecution. The verdict

also demonstrated just how effective Sri Lanka’s legal

system can be when it must deal with abuse of power

and human rights allegations within the judicial system.

Here, a brief digression is in order to point out that

law enforcement officers in Sri

Lanka confront a dilemma

whenever they are involved in

the prosecution of subversives

for alleged acts of terrorism.

That is because the court’s legal

framework essentially caters to

civil situations.

Of course, officers have the

advantage of emergency regula-

tions when it comes to preventing

terrorism. Their main instruments

include special powers of arrest,

detention, and other prosecutorial

provisions. But based on my

experience as a prosecutor, I can say these instruments are

not 100-percent effective for the simple reason that they are

employed in emergency situations but get evaluated in

a civilian context, namely when they become part of a

legal proceeding.

To clarify the point, under emergency regulations, a

confession made by a suspect to an assistant superintendent

of police or a person of senior rank, is admissible as evidence

against the suspect in a follow-up criminal suit. This exception

is based on reasoning that argues that the arrest and detention

of subversives often derives from intelligence reports,

which may or may not contain directly admissible evidence,

especially in light of a rather rigid law on the subject of

the admissibility of evidence generally.

Because it is difficult to imagine a witness being ready

to come forward and testify against an LTTE member in a

criminal suit that involves charges of terrorism, it was

necessary to allow the exception in order to facilitate

effective law enforcement against terrorism. And since this

exception was allowed, the court must be satisfied that a

confession was made voluntarily and prior to a decision

to allow the admission of the

confession as evidence in a

criminal suit. The court must

be satisfied that the confession

was not obtained under duress.

It should be noted here that

the court has no specific guide-

lines for how to satisfy itself

about whether a confession

was indeed voluntary or not,

nor are there any provisions that

establish what degree of proof

is required to show that the

confession was indeed voluntary.

As a consequence, the courts

have adopted their own system whereby they hold an inter-

mediate inquiry — while the main trial is underway — to

determine whether or not the confession was voluntary.

In the process, they employ certain basic legal principles,

such as proof must be established beyond a reasonable

doubt; the prosecution carries the burden of proof; and the

accused is innocent until proven guilty.

One outcome, however, is that the testimony of a good

law enforcement officer can be rejected in favor of the partly-

tested and even sometimes tainted testimony of the accused.

That is because the court ends up giving the benefit of the

doubt to the alleged terrorist who gets into the box and

says, “Well, I gave this confession under duress.” The court

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A S I A N P E R S P E C T I V E S S E M I N A R

Not only has the court

meted out some very

harsh judgements

against law enforcement

officers, it also has

awarded large sums

as compensation

to petitioners.

then finds that the confession cannot be allowed as evidence

in the main proceeding and the accused, often a hardcore

subversive, ends up walking away scot-free. In the process,

the legislature’s intentions to provide for the exception also

are undermined.

Because of the potential for problems here, it seems

imperative that we reform these laws or introduce new laws

that truly facilitate effective law enforcement against terrorism.

Returning to the subject of legal remedies for human

rights violations, those who feel they have been victimized

can file a fundamental rights petition before the Sri Lankan

Supreme Court.

Chapter Three of the Sri Lankan Constitution, Articles

10 through 17, guarantees and protects an individual’s

fundamental rights. Article 10 spells out the guarantees

on behalf of freedom of thought, conscience, and religion;

Article 11 concerns freedom from torture; Article 12 deals

with the right to equality; and Article 13 guarantees freedom

from arbitrary arrest, detention, and punishment.

Article 17 renders “justiciable” (legal terminology for

the ability to sue on the basis of those rights) the extension

of rights to an individual and entitles that person to invoke

the Supreme Court’s jurisdiction under the Constitution’s

Article 126 for redress of an alleged breach or violation of

his or her rights.

Recent events demonstrate that the Supreme Court has

been very effective in dealing with this fundamental rights

petition. Not only has the court meted out some very harsh

judgements against law enforcement officers, it also has

awarded large sums as compensation to petitioners. And not

only is the petitioner redressed, the decisions also serve as a

deterrent against similar behavior on the part of law

enforcement officers.

Also, the Attorney General, as a rule, does not defend

police personnel, officers, or military personnel against

allegations that they breached a ban against torture as

embraced by Article 11. The Attorney General will under-

take the defense against charges brought under Article 13

against illegal arrest, detention, and/or arbitrary treatment

only after an internal inquiry establishes a claim’s authenticity.

Meanwhile, an individual seeking redress for a human

rights violation also can file a prerogative writ of habeas cor-

pus and certiorari with the Court of Appeal. Depending on

the nature of the alleged violation, a person also can bring a

complaint individually as well as a civil suit against individ-

ual officers, seeking compensation for an illegal arrest, for

example.

Other more general remedies also are available, including

an individual’s right to file a bail application with the Court

of Appeal and/or asking the Attorney General to quash a

detention order. The Human Rights Commission also can

be called in to review a set of circumstances. In the latter

instance, defense personnel are required to file a report

explaining what happened at the time of the arrest made

under emergency regulations and what it is that was expected

to happen as a result of the arrest.

It may be appropriate here to point out that Sri Lanka

has been a signatory to and has ratified almost all

international covenants that pertain to human rights and

humanitarian laws.

Certainly, the Krishanti Kumaraswamy case can serve as

a backdrop to our discussion about human rights violations,

particularly during times of heightened security concerns.

Not only does the case illustrate the concerns that can come

into play at the state and judiciary levels whenever crimes

relating to human rights are involved, it also demonstrates

the legal mechanisms that are in place to insure that justice

is meted out, especially in human rights cases.

Unfortunately, the Krishanti Kumaraswamy case

involves one of the most gruesome crimes ever committed by

10

uniformed personnel against innocent civilians in Sri Lanka.

An 18-year-old girl, who was living in Jaffna at the time of

her death, was returning home from school in September

1996, when she was abducted at a security checkpoint,

raped, and murdered. When her mother, brother, and a

neighbor went to search for her at the security point in

question, they, too, were murdered in an effort to prevent the

reporting of the young woman’s death to higher authorities.

The bodies of the victims, all Tamils, were buried behind

the checkpoint.

When the disappearance finally was reported, there

was a great deal of speculation, especially among Tamil

politicians over whether the perpetrators would ever be

brought to book, especially since the suspects were all

Sinhalese. To her credit, President Chandrika Kumaratunga

ordered action taken immediately. I flew to Jaffna to be

present at what turned into a very difficult investigation.

Eight soldiers of the Sri Lankan army and one policeman

were indicted before the High Court, marking the beginning

of what would become one of Sri Lanka’s most publicized

trials of the decade. The trial continued daily for more than

seven months while skepticism, particularly among LTTE

propagandists, ran rampant.

On July 3, 1998, the guilty verdict on charges of rape

and murder was returned against five military men and one

policeman. All six were sentenced to death. (Another of the

accused soldiers died while the case was underway, and two

others were acquitted.)

The verdict was hailed locally and internationally as a

landmark judgement because it marked the first time that

Sri Lankan security personnel were convicted of human

rights violations. It also demonstrated just how effective

the justice system can be in dealing with crimes revolving

around human rights allegations.

Furthermore, the verdict demonstrated that it is no

longer necessary to always hand this kind of case to the

military courts. As an aside, I personally feel that the

military courts are a better forum for this type of case

for the simple reason that military tribunals are not bound

by the same rules and regulations that govern civil courts.

Specifically, a trial before a military court can be concluded

more expeditiously and effectively to the advantage of

the prosecution. For the time being, a decision to put this

kind of case before a military court is sure to provoke a

public outcry because of fears that a hearing will be biased

and partial.

One final point is that this case also concluded with a

margin of hope that the conflict in Sri Lanka might someday

be resolved. I quote from the Sunday Weekly: “The victims

were Tamils. The perpetrators were all Sinhalese and

security personnel at that. Yet, the President who ordered

swift action was Sinhalese. The defense personnel, who

implemented those orders and apprehended the offenders,

were Sinhalese. The prosecutors were Sinhalese. The judges

were all Sinhalese.

“Yet the greater ideal of retributive justice has triumphed

over the narrow racial perspectives of the LTTE. And more

importantly, the very real feeling of revulsion expressed by

the average person, whether Sinhalese or not, against the

offenders, has reinforced the truth that the punishment must

fit the crime.”

It is my hope that the outcome of this trial will prove

to be a durable testament to the Sri Lankan government’s

commitment to uphold the human rights of all its citizens.

11

A S I A N P E R S P E C T I V E S S E M I N A R

Alternative Dispute Resolution by DINESHA DE SILVA

Changing gears, my remarks will focus on the alternative

dispute resolution program that has been in operation

for about 10 years in Sri Lanka.

The Mediation Boards Program, administered by the

Ministry of Justice and Constitutional Affairs in Sri Lanka,

provides an effective alternative to traditional forms of

courtroom litigation that are carried out in courtrooms.

Their primary objective is to reduce what seems to be an

ever-growing backlog of cases.

During the past two decades, Sri Lanka has experienced

a significant increase in litigation that is impeding upon the

courts’ ability to cope with their dockets. Delays have

become quite routine as more and more cases piled up

behind those that take 5 to 10 years to litigate.

Even today, the backlog ranges upward to 8,000 cases

in the Court of Appeal alone. In petition and testamentary

cases, disputes may not even get resolved for the generation

that instituted the action. Modernization of the courts,

judicial training, and improved court administration could

help alleviate the problem to some extent, but the creation

of an effective alternative for resolving disputes is an option

that the government of Sri Lanka has chosen to experiment

with concurrently.

The mediation program was put in place 10 years

ago. Since then, more than 510,000 applications have

been referred to mediation. Today, mediation boards are

accessible to the general public and also well publicized.

They are entirely voluntary and promote confidence in the

government’s ability to adjudicate disputes, which is some-

thing that should be of interest to the average Sri Lankan

and to the international community as well.

While the mediation boards’ success depends ultimately

on the public’s willingness to accept an alternate system for

dispute resolution, the technical competence and profession-

alism of the mediators is also very important. The attitudes

of legal professionals toward mediation impinges on the

mediation boards’ ability to resolve disputes speedily and to

sustain themselves as independent and nonpolitical entities.

To this end, the Ministry of Justice holds a series of training

and awareness sessions that complement the program’s

administrative framework. There is a permanent cadre of 13

mediator-training coordinators whose job it is to provide

5,200 volunteer citizen mediators with their initial training

as well as advanced and refresher courses every six months.

Typically, each mediator is appointed for a three-year

period and can be renewed following a successful evaluation.

A mediator-trainer oversees approximately 20 community

boards, which translates into visits to three or four boards

each week. Trainers teach all the sessions, monitor the

mediators, provide feedback, and assist the boards in

dealing with administrative issues that arise.

Both mediators and board members are selected in a

competitive process that starts with an application to the

Mediation Board’s Commission. The Commission itself has

12

five members, three of whom by law must be retired judges

of the Supreme Court or Court of Appeal. The Commission

generally meets monthly to supervise and review mediators’

performance. Mediators, who are appointed based on aptitude

and an ability to be fair and impartial, tend to be civil servants,

teachers, school principals, postmasters, religious leaders,

professionals, and other respected citizens in their communi-

ties. The overwhelming number are men, and an effort should

be made to bring more qualified women into the program.

The mediation system in Sri Lanka requires that mediators

simply facilitate mediation and enable the disputants to

arrive at their own solutions. This is not an easy task and

sometimes, disputants’ expectations that mediators are there

to solve their problems, can get in the way.

Mediator trainers also get involved in a series of

awareness-raising and educational programs with the police,

local government officials, school children, and social workers.

There are two distinct programs here, one of which is a

stakeholder program that involves district judges, magistrates,

police chiefs, and local government officials — each with a

legally prescribed role under the Mediation Boards Act.

So far, there have been stakeholder programs in all areas

except for the north and until recently, the east.

Geared to various constituencies, education programs

attempt to educate an ever-wider range of people about the

process and then to impart understanding of the values that

underpin mediation skills. One particularly innovative

program, which introduces mediation techniques to young

leaders and teachers, has promoted interest in peer mediation

programs in the schools.

Despite the successes, the legal community has remained

wary, some even going so far as to publicly express skepti-

cism about the benefits of a program they do not take part

in. To introduce the next generation of lawyers to the

concept of mediation and the benefits of using mediation

skills, final-year law students at the Sri Lanka Law College,

participate each year in a three-day workshop. This is done

as part of their practical training and has been conducted

for the past three years. The workshop demonstrates the

techniques of mediation in an effort to assist them both in

observing mediation in action and in using the skills that

are involved.

To create even more widespread interest, a media

campaign with radio and television spots explaining the

benefits of mediation has been planned for this year. The

campaign is intended as a follow up to a highly successful

nationwide poster campaign. There is every indication that

these strategies are helping the mediation boards continue to

operate successfully. Since their implementation under the

Mediation Boards Act of 1988, the boards’ objective has

been consistent, namely to provide the people of Sri Lanka

with a low-cost and effective mechanism for mediating

disputes successfully.

It is worth noting that mediation is not new to Sri

Lanka. Mediation boards and the promotion of informal

mechanisms for dispute, resolution have been part of the

country’s social, cultural, and historical context since the

time of the Sinhalese kings. As far back as 425 BC, village

councils provided citizens mechanisms for seeking redress

for local conflicts at the community level. Typically a council

included village elders who met at a local resting spot —

often under a shady tree — to hear cases that involved petty

theft, boundary disputes, and otherwise minor offenses.

They followed fairly simple procedures with the goal of

finding a basis for a voluntary settlement based on mutual

consent of the disputants.

With a status that approximated a court of law, a

tribunal’s decision could be appealed ultimately to the king

himself. Their use declined precipitously after the arrival of

the Dutch and the British. At one point, the British tried to

revive the system but were unable to recreate the informal

nature that had prevailed at the time of the Sinhalese kings.

13

A S I A N P E R S P E C T I V E S S E M I N A R

Sri Lanka’s government tried again to organize an informal

system in 1958. The government set up conciliation boards

and then stipulated that the board was the place where all

civil disputes and minor criminal offenses were to be

resolved. The boards ultimately disbanded in 1978.

Appointments and removal of panel members had

become very politicized apparently due to a legal clause

that allowed the minister to remove someone without

making a case. Another obstacle

was the lack of training for panel

members or technical framework

for actually addressing disputes.

Then, there was the problem of

jurisdiction beyond the ability of

the lay persons who sat on the

boards and the misapplication

of the power to summons.

Ultimately, the public lost

confidence in the outcomes as

well as in the panels’ competency

and their ability to be impartial.

The Mediation Boards

Program that was established

thereafter was constituted with a deliberate effort to over-

come the flaws in the original system. As a result, effective

mediation has been institutionalized in a legal framework

and with an independent system for accountability. Boards

are able to resolve disputes that have been referred by

individuals, by the courts, and by the police. They handle

disputes that involve movable and immovable property, the

collection of bank loans, disputes between family members,

and matters involving pettytheft. Broadly stated, their goal

is to handle minor disputes wherever possible without inor-

dinate delays and in an atmosphere that promotes mutual

agreement. Legally, they are expected to resolve a dispute

within three months. Mediators adhere to this deadline

and have come to regard it as a crucial aspect of the

process’ integrity.

Disputants are not allowed to have lawyers present

their cases, nor are statements made before a board admissible

in a formal court proceeding. Boards, which are made up of

volunteers, tend to meet once or twice a week and usually

on weekends or after hours during the week in a variety of

public buildings and schools.

Each board is represented

by 12 to 30 mediators and a

chairperson. The Mediation

Board Commission selects the

chairs from recommendations

made by the trainer coordinators.

A board’s caseload ranges from

minor criminal offenses, assaults,

drunken and disorderly behavior,

boundary disputes, and more

recently to disputes between

debtors and commercial banks.

Very few cases involving family

issues come up for review.

Mediators speculate this is

because any sense of privacy is often elusive while mediation

is in progress.

A recent mediation involved a dispute between a single

mother, her daughter, and son-in-law. The mother wanted

the young family to move out and to that end had bought

property for the young couple to live on. But the son-in-law

refused to move, which led the mother to argue that his

presence was having a detrimental effect on her teenage son.

It came out that the son-in-law, while drunk, had made

improper advances toward his mother-in-law. As the mother

told her story in a whispered voice, those listening began

moving in closer. When the son-in-law argued that the

alternate location was not acceptable, a voice from the

14

Informal mechanisms

for dispute resolution

are not only less costly

and more accessible

to average individuals,

they also are better

suited to the speedy

resolution of disputes.

15

back of the room blurted out, “Oh no, it’s a lovely piece of

land. You should take it.” This difficulty to get people to

discuss personal matters is a drawback to an otherwise very

successful program and should be addressed. Measures should

be put in place to insure at least a degree of confidentiality.

Another drawback in maintaining an entirely voluntary

mediation program is the fact that mediators have no formal

way to force the party being challenged to show up for a

hearing. Since the voluntary nature of the mediation process

is crucial to its success, no effort thus far, has been made to

formalize participation.

Mediation has been very successful in resolving disputes

that involve bad debts. Anecdotal evidence suggests a success

rate of as high as 90 to 95 percent. In fact, commercial

banks have started turning to mediation boards to resolve

nonpayment of loans that often are higher than a board’s

allowable limit. It turns out that both the banks and defaulters

are willing to appear before a mediator because both want

an agreement for repayment based on a time frame the

defaulter can afford. Still, there are times when no resolution

can be reached. In that case, a nonsettlement certificate is

issued and the disputant is referred back to a traditional court.

Two recent developments augur well for the broader

acceptance of mediation in Sri Lanka. With technical

assistance from the Ministry Mediation Boards Program,

lawyers, scientists, and environmental activists are being

trained in mediation techniques by the mediator trainers of

the Ministry of Justice. This is the first nongovernmental

mediation initiative in Sri Lanka and represents a unique

collaborative effort between an environmental NGO and

the Ministry of Justice.

The second development flows from a decision to extend

the boards’ work to areas in the north and in the east. In

one of the areas, in the east, for example, there is concern

that security worries are causing people to abandon their

property. There has been a significant amount of encroach-

ment as a result, contributing to one of the more pervasive

problems of the time and consequently a number of court

cases. It is here that mediation could end up as a very

effective avenue for redressing these and similar disputes.

Amid the tension and security considerations that affect

the north and east, the establishment of boards in these

areas could mark an important turning point. Informal

mechanisms for dispute resolution are not only less costly

and more accessible to average individuals, they also are

better suited to the speedy resolution of disputes. This should

augur well for future development and for fostering confidence

in the administration of justice in both the north and east.

Even as it expands into new areas, the program contin-

ues to do what it does best, namely to resolve disputes in a

timely and fair fashion. And now by offering the service in

the northern and eastern provinces, the mediation program

can lay claim to providing all citizens of Sri Lanka with the

dispute resolution system that was envisioned in the act that

created it more than 10 years ago.

A S I A N P E R S P E C T I V E S S E M I N A R

Concluding Remarksby AMBASSADOR TERESITA C. SCHAFFER

16

However one characterizes Sri Lanka’s problems, there

is general agreement that a solution must be found to

the ethnic strife that is tearing this country apart. In fact, the

most pressing issue confronting Sri Lanka today is the task

of resolving its ethnic conflicts.

In all probability, a solution will have to involve direct

dealings and/or negotiations with the Liberation Tigers of

Tamil Eelam (LTTE). That said, I am of the opinion that the

chances for consensus are fragile. There is limited interest in

negotiating directly with the LTTE despite the widely held

view that they must be dealt with.

There are several key issues driving this set of circum-

stances. The first, as highlighted by Dr. Saravanamuttu, is

whether the problems of ethnic conflict spring from the

conflict per se, or whether they should be considered

terrorist activities. Both are factors in my opinion.

Of course, the ethnic dimension is the more fundamental

of the two. But terrorism remains the weapon of the weak

and all too frequently the weapon of those with a somewhat

perverse agenda. And that describes the LTTE.

As has been pointed out, the LTTE has a practice of turn-

ing its back on any kind of incremental progress. That is

apparently because from their point of view, any progress to

date has not produced the results they wanted — or were

comfortable with — or offered their leaders an attractive

enough outcome.

The second issue has to do with whether the conflict

requires a political or a military solution. In my view, the

military dimension is indispensable to any solution, even

though great failure has tarnished the role the military has

played since 1983.

Their efforts in the area of real estate have met with

some success, however. Starting in the summer of 1995,

the army has controlled Jaffna and Killinochchi, the two

population centers on the north of the island, and left the

LTTE with a much smaller and less heavily populated area

of scrub jungle for its territorial base.

Attempts to take over the LTTE’s home base have not

been quite so successful. In fact, the strategy has created a

new problem by stretching the military quite thin. Troops

have been transferred out of the ethnically mixed east, to

conduct the military campaign and to protect the newly

controlled areas. As a result, security in the east — where

a precarious normalcy had begun taking hold in late 1994 —

has deteriorated sharply.

Still, a military solution is not a solution unless it also

addresses and then resolves certain political issues. Even if

the army were to find itself suddenly in full control and

security was not precarious in the east, Sri Lanka still would

have to figure out how to win agreement on the ground

rules for governing.

Another concern is whether the situation in Sri Lanka

reflects an ethnic conflict or a constitutional dilemma.

Again, both issues are relevant, indeed more closely

intertwined than even the need for a military and a political

dimension to any solution. As Dr. Saravanamuttu said with

great eloquence, the focus during the first 30 years or so of

trying to solve the problem, has been almost totally on a legal

and constitutional means for a solution — at the expense of

the ethnic dimension in its rawest form. It now is time to

correct that — but not at the expense of the legal and consti-

tutional issues.

Consider the notion of devolution, which is the preferred

buzzword over federalism. (Here in Washington, D.C., which

is almost as far from Sri Lanka as

we could be, we can say quite

forthrightly that both devolution

and federalism reflect the exercise

of control at a level below that of

the central government.)

The notion of devolution is

complicated further in Sri Lanka’s

case by the question of whether it

should occur in a symmetrical

way, or whether governance should be divided proportion-

ately and between parts of the country that are primarily

Sinhalese and those that are primarily Tamil.

Again, as Dr. Saravanamuttu explained, the LTTE’s

likely point of view — provided its leadership could even

be brought around to the notion of devolution — would

involve questioning what the sacrifice has been for if indeed

they were to end up with little more than a chief minister

in one area or another. In all likelihood, a number of Tamil

leaders share this view.

Nevertheless, one government after another has determined

that they would not be able to win the critical support they

need from the Sinhalese side of the ethnic divide for any

arrangement that gives the Tamil community “privileges”

that are not similarly extended to the Sinhalese majority.

Still another factor is the limited, and some would say

phony, devolution that has occurred to date. Devolution has

not delivered much in the way of local power or authority.

In fact, a sizeable segment of mainstream opinion suggests

that efforts at devolution have been a colossal waste of

money. Many regard that what is in place as succeeding

at little more than the extension of patronage to political

parties at the state level.

Any solution will not be simple. Still, there are at least

three lines of thinking that frame circumstances in ways that

render them more understandable

and hopefully more amenable

to a solution. First, the ethnic

conflict will not be resolved

until there is a political and

constitutional solution. Part

and parcel will be an agreement

on the kind of ground rules

that are needed to define the

government and the relations

that exist at the political level among communities.

Second, certain steps are necessary just to get to the

point of being able to resolve the conflict. For years, the

LTTE’s position has been the need for an independent Tamil

Eelam. That may have some superficial appeal in this day of

breaking up multi-ethnic empires. At the same time, it seems

inconceivable that the government would ever agree to a

plan for separation. Aside from the northern tip, no neatly

defined ethnic populations exist on the island. In the north,

the population has been close to 100-percent Tamil ever

since the LTTE expelled the Muslim population that was liv-

ing there. A significant Sinhalese and Muslim population

lives in the east and every Tamil leader, including those who

try to work with the government, claims this area as belong-

ing to the Tamil homeland. Large numbers of Tamils also

live in Colombo and Kandy, while the “Hill Tamils” work

the plantations at the center of the country.

17

A S I A N P E R S P E C T I V E S S E M I N A R

The ethnic conflict will

not be resolved until

there is a political and

constitutional solution.

1818

This arrangement of ethnic populations would appear to

rule out any “separation” option. If that doesn’t work, one

has to make sure that the LTTE is pulverized. But the lessons

of history suggest that this, too, is an unlikely outcome. Sri

Lankan authorities have never even come close to doing in

the LTTE. Certainly, the army has not come close — and any

attempt to finish them off probably would spur new recruits

in those parts of the country where the LTTE is the weakest.

Even those Tamils who deeply disagree with the LTTE’s

methods, grudgingly admit that at least “the boys have

put us on the map.” That is very disconcerting to hear.

But it leaves us with the third line of thinking, namely

that a possible outcome has to embrace a constitutional

amendment. This would mean the country remains in one

piece while requiring the absolute integration of a political

and military strategy.

Here, I take note of the government’s attempts to do just

that during its first year in office; the fact that negotiations

came to naught; and the LTTE’s decision to head back into

the battlefield. Since then, very little has happened to again

join the issue with the LTTE. Any political movement has

been entirely on the government’s side of this great divide.

The effort has amounted to a rather painful process of

trying to inch the peace package forward. Time and again,

political difficulties and sensitivities of one sort or another

have interrupted the process. This fact alone may have

caused a fatal loss of momentum for the package. I would

welcome being proved wrong on this point. I believe these

proposals could and should be the basis for serious discus-

sion. But it remains a separate question whether any final

arrangement will reflect these proposals. Instead, it seems

very important at this juncture to find a format for engaging

the process that then can lead to resolving the issues.

My fear is that this potential is not close at hand, at

least at the moment. I wish it were otherwise. Sri Lanka

deserves better. This country has suffered desperately from

the holocaust that has been perpetuated by its leaders, starting

with the LTTE’s assassination of national leaders. These

assassinations are indeed one of this struggle’s saddest

consequences. Admittedly, those responsible for violence

in circumstances like these cannot always be traced. But it

is certain that the LTTE has been involved to a significant

degree. At the same time, leaders on the Tamil side also have

died or been disabled politically.

In a better-ordered universe, those who were assassinated

might very well have provided the keys for working out an

arrangement to resolve the conflict. To be sure, there are

not a whole lot of people left with the standing and the

ability to do the very hard work that is needed to move

the peace process forward.

Questions and Answers

19

A S I A N P E R S P E C T I V E S S E M I N A R

Panelists

Paikiasothy Saravanamuttu, Executive Director, Centre for

Policy Alternatives

Ambassador Teresita C. Schaffer, Director of the Center for

Strategic and International Studies’ South Asia Program

Q Please comment on the Sri Lankan government’s

experience in negotiating with the Tigers as well as

with minorities generally.

Dr. Saravanamuttu: Until armed hostilities broke out, there

was an attempt to reconcile majority and minority interests

with agreements and pacts. The effort was an attempt to put

the relationship on an institutionalized footing. What resulted

was an elite consensus. These agreements, once made public,

were torn up and, of course, never implemented.

In the period following the outbreak of armed conflict in

1983 to 1987, when the Indian government intervened and

devolution was introduced for the first time in Sri Lanka,

negotiations became more of a sideshow than a route to a

resolution. The government was set on a military solution

and was not interested in sharing power. The most serious

negotiations with the LTTE occurred around October 1994

and lasted until April 19, 1995.

On the government side, the first problem that developed

was the result basically of arrogance and naivete in thinking

that the LTTE came to the negotiating table, committed to

finding a solution. The government fell into the trap of

believing the LTTE’s argument that there must be confidence-

building measures before the LTTE would embrace a cease

fire and talk about a political solution.

I say this was a trap because I feel that it is necessary to

assume from the outset that the LTTE is not interested in

negotiating a solution. If they come to the negotiating table,

it is a tactical ploy. This means that the real challenge in

negotiating with them is to keep them at the negotiating table

and from the outset, not allow them to set the agenda.

So, if one were to ask what the pitfalls are when it comes

to negotiating with the LTTE, I would say the key point is

that negotiations are for the purpose of reaching a political

settlement to a political problem. The LTTE will talk about a

whole range of confidence-building measures and link

progress to these measures just to avoid talking about the

real, core issues of a political settlement. This means that

talks based on a single issue are a much better plan than dis-

cussing a range of issues that are of secondary importance.

Q Comment about the role of the Buddhist clergy and

how they have or have not affected the negotiating

process with the minority communities.

Dr. Saravanamuttu: By and large, the Buddhist clergy has

been singularly unhelpful with regard to negotiations and

devolution in the whole conflict resolution process. This is

unfortunate. The clergy identifies itself with the notions of

majoritarian democracy and with the Sinhalese community.

In fact, the chief priests have come out in a number of

instances and said categorically that there should be no

negotiations with the LTTE. They have advocated no elections

and other “distractions” from the main objective, which they

maintain should be the prosecution of the war against the

Tamil Tiger terrorists.

So any notion that the Buddhist clergy might play a role in

achieving a political resolution to the conflict is misleading.

When the government came forward with its devolution

package, it looked initially to the clergy’s more liberal-minded

members for support. Some did express support. But what

resulted was a heightened politicization of the clergy in a

country where since 1972, Buddhism has been accorded the

“foremost place” in the constitution.

An interesting anecdote with respect to the Buddhist

clergy and the devolution package is that the government,

realizing that the clergy is a key constituency, sought its

support by offering them a sweetener. This was in the form

of a council of priests to advise them on all matters relating

to Buddhism and a range of social and development issues.

However, the priests ended up saying, “Thank you very

much. We understand this to be our rightful due, and we do

not intend to support devolution, anyway.”

Buddhist priests and particularly the high priests are

more likely to be associated with opposition to devolution

and sharing power with minorities than with a push for

a political solution based on constitutionally guaranteed

ground rules for the relationships between the majority

and the minority.

Q How is majoritarian democracy in the Sri Lankan

context defined?

Dr. Saravanamuttu: The debate is very much in flux, and the

notion that the state will provide for all its citizens is still

accepted. What this means in practice and on what terms and

what grounds the state will provide, is still subject to debate.

I feel strongly that the movement is away from discrimi-

natory criteria, like ethnicity, quotas, and reserving certain

places for certain people. There is the notion emerging of

the state as a facilitating framework for partnership with

the private sector and with other actors in civil society.

However, for any such partnership to develop and be

successful, there also must be mutual respect and confidence.

That said, I think the notion of majoritarian democracy

generally has taken a beating, even though this debate is

yet to be concluded.

Q Because the leaders of the LTTE seem to be central

to the LTTE’s advancing any position, could out-

comes be different if the leadership changed?

Dr. Saravanamuttu: I firmly believe that serious issues stem-

ming from the ethnic conflict are serious regardless of who

heads the group. It is wishful thinking to say if the leadership

changes, a solution might present itself overnight or, if not

overnight, then in the next couple of weeks.

The issues are far more serious, particularly those that

address the need for ground rules to govern relationships

between the majority and the minorities. These are far more

serious than a solution involving a change in the LTTE’s

leadership might otherwise imply. For example, I do not

think that getting rid of Vellupillai Prabhakaran is the

necessary or sufficient condition for resolving the conflict.

The conflict is much wider and much deeper.

Ambassador Schaffer: I agree that this is fundamentally an

ethnic conflict. But a significant part of it is also a terrorist

problem and influenced by the temperament and outlook of

those leaders who are involved. That said, there is a blind

spot on the part of the Sinhalese when it comes to the depth

of the ethnic dimension of the problem. Let me illustrate that

with an anecdote:

While serving as ambassador, I had a visitor from

Washington, D.C. who is a distinguished American and who

participated in Middle East negotiations during his government

career. Since leaving government, he had gotten involved in

so-called Track II, nonofficial diplomacy. We were having

20

lunch with an ethnically mixed group, who included people

from government, the political parties, and the foreign

policy establishment. My American visitor talked about

his experience in other parts of the world and generally made

an effort to understand the Sri Lanka issue in greater depth.

To that end, he asked what relations are like between the

two communities, the Sinhalese and the Tamils.

Of course, I was listening carefully, but especially because

at least one of the Tamils at the

gathering recently had unloaded

about the kinds of petty harass-

ment and discrimination that even

he, a card-carrying member of

the establishment and his family

had encountered. Then one of

the Sinhalese members of the

group, an otherwise sensitive

and compassionate individual,

replied to the guest’s query.

“You know this really isn’t an

issue,” he said. And no one else

said a word, which I found all

very revealing.

That said, Mr. Prabhakaran

has been on the run since

he was 18 years old. He knows relatively little of the world

outside of Jaffna. He is said not to sleep in the same place

two nights in a row. His entire engagement in this struggle

has been a violent one. People who have met him, which I

obviously have not, say that his thinking is very much guerilla-

style and military oriented. He certainly ran an autocratic

and authoritarian quasi-state in Jaffna in the days when he

was running one.

His removal would not in any way provide an automatic

solution. Nevertheless, I am not at all sure that he is capable

of the kind of political turnaround that say, Yassir Arafat was

able to gin up in the Middle East. I would enjoy very much

being proved wrong on this.

Q I’m hearing a rather despairing point of view, partic-

ularly if the prerequisite for a solution is changing

the mindset on both sides. My reading, too, is that this will

be extremely difficult, given the current stalemate. Still, there

seems to be a possibility that this conflict ends up as the

catalyst for democracy and

democratic structures. Could

you comment?

Also, an offshoot to my

question concerns human rights

in Sri Lanka. Given the documen-

tation of the military’s part in a

number of serious violations,

can the military fit into any

proposed solution?

Dr. Saravanamuttu: On the point

of the conflict serving as catalyst

to a resolution and for greater

democratization, my feeling is that

any political solution will have to

lead to the establishment of more

pluralistic institutions and structures of government. There is

no alternative — no other option than a political solution.

With regard to the military, I do not accept the argument

that the military is a threat to democracy in Sri Lanka. My

experience with the military is that this is a constituency

whose members (particularly the middle level officers) articulate

an important point of view, namely that the military only can

do so much without the complement of a political solution.

That said, there still has to be a fairly effective calibration of

the political and military components of a solution.

The subject of human rights will be taken up by a

21

A S I A N P E R S P E C T I V E S S E M I N A R

Any political solution

will have to lead to the

establishment of more

pluralistic institutions

and structures of

government. There is

no alternative — no

other option than a

political solution.

subsequent speaker. But I would comment that there has

been improvement. This government is concentrating on

improving human rights in Sri Lanka, and, in fact, has

signed a number of conventions and agreements that entail

reporting to international bodies. There is also a great deal

of transparency with regard to human rights. Still, there is a

long way to go I grant you.

The only way to succeed is if the media begins to play a

much more important role on this score. We have a three-

language media, and it is important to raise awareness of

human rights in the majority Sinhala-language media. Time

and again, I have said that the average Sri Lankan has seen

more of the pictorial evidence of the horror and destruction

in Bosnia, Rwanda, Burundi, and Somalia than he or she has

seen of the situation in the north and east of Sri Lanka. This

is a tragedy.

Q What about an approach that would strengthen

the hand of other factions and in effect subdue

the LTTE? Second, will the motivation to break the present

deadlock come from within Sri Lanka or the outside?

Dr. Saravanamuttu: Let me answer the second question first.

The only political solution that has come out of this conflict

occurred in 1987. At the time, India had intervened and

devolution was put on the agenda, along with the establishing

of a provincial council. At this time, donor countries began

advancing an economic argument, saying, “Look, we are not

going to pour money into this country unless you resolve this

conflict. You are going to have to get together, and it cannot

be done militarily.”

My point here is to underscore that external sources have

tried to influence outcomes and have continued to push us

toward an agreement of one sort or another. Not only does

Sri Lanka have to be receptive, the influences from the outside

have to be sufficient to move the two parties together. So far,

this has not been the case. As things stand now, the president

has said consideration will be given to a third-party facilita-

tion if and when negotiations with the LTTE are scheduled.

In this instance, the level of mistrust between the two sides

is so great that external parties indeed could play a very

helpful role.

With regard to the point concerning terrorism, it is my

opinion that in the area of conflict resolution, culminating

in a negotiated political settlement, it is not helpful to focus

on the conflict’s terrorist dimension. There are a number of

reasons, but let me give you one by way of explanation.

From 1987 to 1989, there was an insurgency in the south,

exacerbated by the fact that an Indian peacekeeping force

had been brought into the north and east. The insurgents

demanded that these forces be removed. By December 1990,

the insurgency had been put down. Let me explain how.

It was squashed with a killing ratio of 10 to 12 insurgents

to one member of the security forces. The leadership of the

insurgents was wiped out. The average citizen who lived

through this could well ask why the terrorist problem in the

northeast cannot be handled in the way it was handled in

the south. The southern insurgents also were characterized

as terrorists. But were the government to follow this path, it

would compound the ethnic problem. It also would serve the

purpose of Prabhakaran, who maintains that the government

is intent on killing Tamils and that its strategy of conflict

resolution amounts to no more than this.

This is a serious problem. Another factor is that we do not

seem to have in place the political structures that can resolve

the conflict. The whole process of conflict resolution will be

threatened with derailment if the powers insist that the ethnic

conflict is only a terrorist problem.

Q Please elaborate on the internal political dynamics

that are in play in the Tamil community, in particular

the extent to which Tamil groups and organizations that are

22

not associated with the LTTE are able to operate and represent

the Tamil community. Does the LTTE, for example, tolerate

other Tamil organizations participating in negotiations?

Dr. Saravanamuttu: No, the LTTE does not tolerate other

political organizations. In fact, the LTTE basically

has killed its way to its present position as the principal

protagonist on the Tamil side of the conflict. But other

organizations do exist. What

should be understood is that after

independence in 1948, there was

a consensus among the elites in

Sri Lankan politics that the par-

liament and parliamentary

democracy provided the appropri-

ate forum for resolving conflict.

However, this position was

discredited when the elites

were unable time after time to

come up with an adequate solu-

tion. Also, the lawyers, profes-

sionals, and middle class repre-

sentatives of the Tamil community were unable to maintain

their preeminence as the politics of ethnicity drew in more

youth — and in due course, became more militant.

A key event occurred in 1983 after the horrific anti-Tamil

riots. The government brought in the 6th Amendment to the

constitution, which proscribed secession. All members of the

national legislature were required to swear an oath against

secession. This applied to Tamil parliamentary representa-

tion—which refused to do so and walked out. In effect, the

result of this was that the site or forum for conflict resolu-

tion shifted from parliament to the battlefield. (The

Tamil United Liberation Front or TULF was the principal

opposition party in parliament following the 1997

general election.)

Currently, there are a number of other organizations

that have come into being and that are having some impact.

Apart from the TULF, the principal organization is the Eelam

People’s Democratic Party (EPDP), sometimes called “half

democrats.” They are former militants, who gave up armed

militancy in 1987 when devolution was put on the statute

books, and now want to be part of the political mainstream.

They face a serious problem. They justify giving up militancy

with their position that from

within the mainstream, they can

obtain a settlement for the Tamil

minority that is preferable to any-

thing Mr. Prabhakaran can

achieve on the battlefield.

Unfortunately, these former

militants have nothing to show

for their renunciation of militancy

as far as a political settlement is

concerned. In January 1998, there

were local government elections

in Jaffna. All the parties partici-

pated. The LTTE called for a boy-

cott of the elections. In the course of monitoring these elec-

tions, we discovered that the ex-militants did not campaign

against the LTTE but on a platform that drew attention to the

government’s devolution package as insufficient. They also

seemed keen to make out that they were okay with the LTTE

and were not engaged in military action with the government

against the Tigers.

There is a serious problem here. Can these groups be a

bridge to the LTTE? If so, will they eventually be swallowed

up by the LTTE or can they be expected to act as a bulwark

against the LTTE? To do the latter, they need to develop sub-

stantial credibility on the ground. This is not the case now,

unfortunately. The non-LTTE Tamil political representation

needs help from the government of the day in fundamental

23

A S I A N P E R S P E C T I V E S S E M I N A R

The LTTE basically

has killed its way to its

present position as the

principal protagonist

on the Tamil side of

the conflict. But other

organizations do exist.

ways, and this is a position of weakness. When you must

rely on the government of the day to achieve your political

objectives and the government in turn has to rely on the

opposition, then you really are not in control of your

destiny. As far as I can see, this is ultimately a position

of serious weakness.

Q Please elaborate on your point about civil society

operating through politi-

cal parties, specifically as it affects

the pursuit of peace in a long-

standing violent situation. For

example, have party conferences

contributed to the creation of new

groups that can challenge these

old patterns?

Dr. Saravanamuttu: Yes, there

are groups that are identified

and defined in terms of their

peace constituency. But the

problem is they do not constitute

a critical mass. They cannot turn

people out for a mass demonstra-

tion on behalf of peace, for

example. There are small

pockets of people, but nothing that is very coordinated.

That said, I also think we are at a particularly

dangerous point because the government has launched

a program that basically supports its devolution package

and in the process, has co-opted a number of people

from civil society. The program intends to inform and

educate people about devolution, and the danger is that

the whole exercise will have a partisan/party political

dimension to it.

There is another problem. This has to do with the notion

of a majority with a minority complex and the associated

feeling of being besieged — Sri Lanka belongs to us; it is our

land; the rest of the world does not accept this and is against

us. Stemming from this is the notion that the international

community has been hijacked by the Tamils and that

peace groups generally are being funded by foreign, non-

governmental organizations that operate based on their

own agendas.

Xenophobia and populism are

part of this sentiment.

For example, the NGO Forum

on Sri Lanka Europe, held

its meeting in 1995 in Colombo.

People who were major

supporters of the government

were involved in the Forum, but

they were beaten up. The meeting

had to change location thrice

because of disruptions. There

was a feeling that the NGO

Forum would draw attention

to the refugee problem arising

when government forces entered

the northern Tiger stronghold

of Jaffna and that as a conse-

quence, international pressure

would be brought to bear on the government to prevent it

from taking over Jaffna.

Q Can the LTTE really continue to exist outside a revo-

lutionary context? Also, the conflict resolution

process now in effect exists because of a basic belief that the

conflict is ethnic in origin and that the terrorist angle evolved

in 1995. Could you please comment?

Dr. Saravanamuttu: Given the nature of the LTTE and the high

We are at a particularly

dangerous point

because the government

has launched a program

that basically supports

its devolution package

and in the process,

has co-opted a number

of people from

civil society.

24

probability that it will never change, one has to conclude that

while peace with the LTTE may be desirable, peace may only

be possible without them. Fifteen years have been spent trying

to solve this problem on the battlefield and, so far, little if any-

thing has happened to bring the conflict to an end.

I begin from a position that maintains we do not have

an option here. Peace may not be attainable in full measure,

but we must explore the possibility with all sincerity and

look seriously at what it can yield.

That said, I would like to make a couple of points about

the nature of the LTTE. Mr. Prabhakaran feeds on war and

conflict. The LTTE feeds on war and conflict, and it is this

context of conflict that sustains them. The challenge is to

create another context in which there will be no grounds

for them to claim that the Tamils are being subjected to an

“army of occupation” and have to go to Colombo to seek

justice and to beg for resources. We have to be able to change

the rules of the game. Now, Mr. Prabhakaran and the LTTE

are setting the agenda despite the fact that they have killed

Sinhalese and Tamils without compunction.

There was a reference made to the attack on the Buddhist

Holiest of Holies, the Temple of the Tooth in Kandy, and also

to the assassination of the elected mayor of Jaffna. In both

instances, the LTTE was making the political point that any

attempt to try and resolve the conflict without them or by

working around them — any attempt that does not take them

into account as the principal protagonists on behalf of the

Tamils — is bound to fail. They are saying, “We will make

sure it fails. We will blast our way — bomb ourselves onto

the agenda. We will kill mercilessly if we have to.”

If you recall, there was a plan to hold the 50th anniversary

of independence at the Temple of the Tooth. The idea also was

for the military offensive to have opened the supply route to

the north from the south by that time. There was also to be

this great tamasha on Independence Day, February 4, followed

by a consultative referendum on the devolution package in

April. Mr. Prabhakaran totally wiped out any chance for that.

With regard to the assassination of Sarojini Yogeswaran,

the mayor of Jaffna, the rationale appears to have been to

negate the impact of something the government hailed as a

great victory for democracy. Mrs. Yogeswaran’s election,

after all, did represent for many of us, the true beginning of

a process of normalcy and democratization on the Jaffna

peninsula. In one of her last interviews, Mrs. Yogeswaran

was quoted as saying that her election had been largely a

public relations exercise and that insufficient funds had

been allocated for the administration of Jaffna.

As far as the LTTE was concerned, their point was quite

simply that if you even begin to contemplate an alternative

political leadership in the north, you will find that you have

been quite mistaken because it means you have overlooked

the LTTE. These are the rules that they play by.

Q Is it your opinion that the government’s devolution

package is good enough and that it provides an

adequate basis for a solution? Or does the package have

substantive problems?

Dr. Saravanamuttu: The devolution package that is before us

is unprecedented in that it is the first time any political party in

Sri Lanka has come forward voluntarily with these proposals.

And they are a solution in that they represent a quasi-federal

package. Now, I have two problems with the package. I sup-

port it because I think it can be the basis for discussion and

negotiation. It should not be viewed as if it were carved in

stone. There is more that I would like to see included.

Here, I would like to make the point that the way in

which devolution has been presented suggests that a calcula-

tion was made that if the Tamils are to have devolution, the

Sinhalese must have it too and in equal amounts — or else

they would not agree to the Tamils having any devolution at

all. It is an odd situation really, to respond to ethnic conflict

25

A S I A N P E R S P E C T I V E S S E M I N A R

with constitutional reform that attempts in effect to negate

the ethnic dimension to the conflict.

I do not think that the LTTE or any other Tamil political

party would be satisfied in the end with the same powers as

a Sinhalese politician in the south or northwest, especially

after they have fought so hard and for so long, suffered and

demanded so much sacrifice and deprivation. So, I would

like to see an asymmetrical dimension to the devolution.

This would be a more feasible and viable approach to

resolving the ethnic conflict. Furthermore, in terms of the

actual powers that are devolved, the balance of power should

be weighted toward the provinces and away from the center.

Personally, I would like to see a more explicitly federal

package. However, the government has shied away from that

on the grounds that in Sri Lankan politics, like in England,

federalism is a dirty word. Ironically, the government is being

criticized by chauvinists and hard-line conservatives who

label the devolution package federalist anyway. I do not

understand why they do not just come out and say, “Yes, it

is a federal package, and we require such a package if we

are going to get any kind of agreement or resolution to the

ethnic conflict.”

So, the package has qualified support. It is to be greatly

welcomed in so far as no other political party has come out

with anything like it before. It represents a radically new

departure, although it does not yet fully meet the require-

ments of the political situation at hand or the outline of an

appropriate and suitable constitutional settlement.

26

A S I A N P E R S P E C T I V E S S E M I N A RA S I A N P E R S P E C T I V E S S E M I N A R

Asian Perspectives Series publications are produced

by The Asia Foundation’s Office of External Relations.

Contributing editor: Dr. Marsha J. Vande Berg

Dinesha de Silva

Assistant Representative, Sri Lanka The Asia Foundation

Dinesha de Silva is Assistant Representative in Sri Lanka for The Asia

Foundation. She is responsible for the management and administration of

the office, its grant portfolio and programming direction. Ms. de Silva was

instrumental in negotiating on behalf of The Asia Foundation a two-year

human rights initiative with USAID.

Prior to assuming her responsibilities as Assistant Representative,

Ms. de Silva was the Law and Media Program Director for The Asia

Foundation’s Citizen Participation Project. The project was designed to

strengthen democratic processes that enhance opportunities for citizens to

address fundamental social, economic, and political needs.

She also has served as a project management specialist for USAID’s

Office of Private Sector Development, an economist with the Environmental

Foundation, Ltd., and a staff economist at the Central Bank of Sri Lanka.

Ms. de Silva received a BA degree in economics and political science

from Georgetown University and an MA in economics from Columbia

University.

Prashanthi Mahindaratne

State Counsel, Attorney General’s Department

Prashanthi Mahindaratne is with the Attorney General’s Department,

attached to a special unit, which deals with white-collar crime and what

in Sri Lanka are described as war crimes. As State Counsel, she conducts

criminal prosecutions in cases as varied as homicide and white-collar

crime. Ms. Mahindaratne, a Hauser Global Scholar, is reading for a

Masters in Law in International Legal Studies at the New York University

Law School.

Ms. Mahindaratne conducted the investigation in 1996 and assisted

in the prosecution in 1997 of a multiple murder case, which involved a

Jaffna student and three members of her family. This groundbreaking

lawsuit represents the first time in Sri Lanka that military personnel have

been tried and found guilty of human rights abuses.

Ms. Mahindaratne also represented the Attorney General on the

Parliamentary Select Committee for Constitutional Reform. She has pre-

sented a paper on liberalizing the laws covering abortion for the Law

Review and the Annual Scientific Sessions of 1997, which were organized

by the Medico-Legal Society of Sri Lanka.

She graduated with First Class Honors from Sri Lanka Law College

in 1990. She also holds a diploma in Forensic Medicine and Science from

the University of Colombo.

Paikiasothy Saravanamuttu

Executive Director, Centre for Policy Alternatives

Paikiasothy Saravanamuttu is the executive director of the Centre for

Policy Alternatives (CPA), an independent public policy institute in Sri

Lanka. He is a member of the Foreign Affairs Study Group of the Foreign

Ministry of Sri Lanka and of the Advisory Committee of the Free Media

Movement and the Movement for Inter-Racial Justice and Equality.

Dr. Saravanamuttu is a visiting lecturer at the University of Colombo

and the Bandaranaike Centre for International Studies. He has worked as

a research consultant with the International Centre for Ethnic Studies

(ICES) and the Centre for Policy Research and Analysis (CEPRA) at the

University of Colombo. He writes a column on politics for the Sunday

Leader newspaper. He also is quoted widely in the international print and

electronic media.

Dr. Saravanamuttu received his Ph.D. (1986) and his Bachelor’s

degree (1979) in International Relations from the London School of

Economics and Political Science, University of London.

Ambassador Teresita C. Schaffer

Director, Center for Strategic and International Studies’

South Asia Program

Teresita Schaffer is the Director of the Center for Strategic and

International Studies’ South Asia Program. From 1992 to 1995, she

served as the U.S. ambassador to Sri Lanka.

As ambassador, she led the dialogue on human rights between the

Sri Lankan government and its aid donors. She also worked closely

with the Sri Lankan government on proposals for peacemaking and

constitutional changes.

Before she was named to her post in Sri Lanka, Ambassador Schaffer

served as the State Department’s Deputy Assistant Secretary for South Asia,

Country Director for Egypt and Director of the Office of International

Trade. She also served as Director of the State Department’s Foreign

Service Institute. An expert in the Middle East and trade policy,

Ambassador Schaffer retired in 1997 from government service.

Ambassador Schaffer is the author of “Sri Lanka: Lessons from the

1995 Negotiations,” a chapter in a forthcoming collection of articles to

be published by Harvard University Press. In 1998, she co-authored

“Better Neighbors? India and South Asian Regional Politics” with

Howard Schaffer in the SAIS Review.

She did her graduate study in economics at Georgetown University

and received her BA degree in European history from Bryn Mawr College.

The Participants

29

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