Sri Lanka - Between preventing and countering terrorism

(MENAFN- Colombo Gazette)

By N Sathiya Moorthy

It's all becoming increasingly predictable. With the UNHRC in February-March scheduled to discuss Sri Lanka, the Tamil side especially commenced its global campaign weeks and months ago. The government, in its defence, has now unveiled what it claims is an improved law against terrorism, compared to the much-hated law, which was enforced as a temporary measure, 43 years ago.

The TNA sent a delegation to the US, Canada and the UK, both to meet its constituents there and more so the host governments. The three nations are the real movers and shakers behind the UNHRC resolution(s) against the Sri Lankan State, institutions and individuals connected with Establishment Sri Lanka. In their capital, the TNA is believed and claimed to have discussed the future pressures that the international community can apply further to get the Sri Lankan State to cough up, on war crime probe, other accountability issues and also a political solution.

Independent of this and running parallel to these efforts was a half-baked Tamil effort to rope in the Indian neighbour all over again. What started off as a larger pan-Tamil effort seeking the full implementation of the India-facilitated 13-A beyond the TNA brand got botched up right royally in between. What has since emerged is a common appeal by most Tamil groups but endorsing the TNA's 13-plus position.

Fair enough, the exercise brought back most TNA splinters back to the fold, yes. But it has also triggered the equally avoidable ACTC-TNPF's protests of parliamentarian Gajendra Kumar Ponnambalam, as if to make it out that the TNA wanted 13-A and nothing more. Through all these, the Tamil parties have embarrassed Indian Prime Minister Narendra Modi much more than any incident/initiative of theirs in the post-war past.

The closest that could be recalled in this regard is the 13-A rebuttal that the TULF as it stood at the time issued after they had encouraged then Indian Prime Minister Rajiv Gandhi to sign on their behalf. Their pre-eminent position was not even that they had to represent the nation's Tamils vis a vis the Government of President J R Jayawardene, who was a co-signatory along with Rajiv Gandhi. They were keener that LTTE's Prabhakaran did not sign – and thus stood equal to them in legal and technical terms.

It thus proved easy for them to distance themselves from the Indo-Sri Lanka Accord 1987 only days after it was signed. Enough material is available to the principled ideological differences of the LTTE to the Accord, and ignominy in the way his Indian handlers treated Prabhakaran while in Delhi to be briefed about its contents. But has emerged about the TULF's opposition to the Accord until the signed statement appeared after the TULF leadership had returned to Colombo.

Clearly, the TULF, rather the principal ITAK partner, came under societal pressure after the LTTE's position got leaked and spread. The ITAK is at present the leading partner in the TNA, and both came under pressure when they were half-way through the post-war political negotiations with the then Government of President Mahinda Rajapaksa, who is now the Prime Minister.

The civil society, then identified with the then Mannar Bishop, Rev Rayappu Joseph ensured that the talks collapsed. Aiding from the sides was the international community, with the US leading, wanting to haul Sri Lanka over the UNHRC coals. Today, the UNHRC has expanded the scope of the Sri Lanka resolutions to include current levels of alleged human rights violations and institutional weaknesses.

At this rate, the original Tamil cause could very well be pushed to the background with every-day events under the present regime of President Gotabaya Rajapaksa increasingly taking international space, until such time the former becomes as moth-eaten as many other UNHRC/UN initiatives of the kind. The Tamils of that future generation can sit back, lament and repeat their worn-out one-liner,“Meendum pizhai vittutom…” Translated it means that they had failed themselves one more time.

Draconian law

It is in this background that the government has come up with a new anti-terrorism bill to replace the draconian law that has been in place for four-plus decades. It is anybody's guess why Foreign Minister G L Peiris, and not Justice Minister Ali Sabry, had to pilot the Cabinet paper in this regard, but then, the former is even more of a legal academic than Minister Sabry can be. But critics are already claiming that Sabry may have felt embarrassed to move a bill draft that is in no way going to offer relief to fellow Muslims, facing and likely to face harassment from law-enforcement, as under the existing law.

TNA's lawyer-parliamentarian M A Sumanthiran was the first to tear the new draft bill to pieces. As he has pointed out, the draft is not greatly different from the existing one, especially when it comes to operational clauses. He has a very valid point.

As Sumanthiran and other critics have pointed out since, the bill has reduced the detention period without judicial access and bail, from 18 to 12 months. First it is cosmetic change. But on the important clause of the freedom for the arrested person to be detained indefinitely once the charge-sheet had been filed, there is no change. This has led to many Tamil political detainees especially being held under custody for 20-30 years, it is said, with no hope or scope for fast-tracking their trials. This is also a point on which the Tamil parties and society have been agitating in the post-war decade.

The Government has also highlighted a provision in the new draft, facilitating jurisdictional judge to visit the PTA detenus in prison every month. Critics, especially Tamil political parties and media, have argued that such a provision now exists even under the criminal procedure code. They need to acknowledge that this provision was not applicable to PTA detenus earlier.

The critics however have a point when they say that there is no mandatory provision for such jail-visits by judicial magistrates for PTA detenus. Nor is there any prescribed punishment for judicial officers who do not undertake monthly visits and record complaints, if any. If there are any complaints, of physical assault, harassment, etc, who is to follow-up on those complaints and what punishments would be applicable to the perpetrators, that too under the new PTA, too needs to be clarified.

Real-life, real-time

The Tamils at least missed a chance when the predecessor 'reformist yahapalanaya' government sought to replace the PTA with a counter-terrorism law, addressing some of the concerns of the international community but with real-life, real-time validation nearer home. It was becoming increasingly clear at the time that the incumbent Sirisena-Wickremesinghe government would not get a second term, and not certainly in the same configuration.

So complete was that perception, the chances of their much-hated Rajapaksas coming back to power despite the collective minorities opposition too was already written on the wall. As the results showed, Gota won despite the near-wholesale rejection by the three minority ethnicities, namely, the Sri Lankan Tamils, Muslims and Upcountry Tamils, all three speaking the same language.

It meant that Gota would – and he did – win the presidency, near-exclusively as the President of the Sinhala-Buddhist majority constituency. If only the Tamil polity, their Diaspora ideologues and also backers in the international community had strategized better, they would have had the then anti-terrorism law on the statute, and worked on for further improvements, then, now or even later.

Today, the Tamils are complaining about the new anti-terror law, and also a political solution. They want the West to do it for them. What they and also their international backers don't acknowledge is that the latter have had their own Guantanamo Bays and laws that facilitated had facilitated the same!

(The writer is Distinguished Fellow and Head-Chennai Initiative, Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. email: )

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