Sri Lankan Peace Process: Current Status

Prof. G.L. Peiris

Distinguished Chairman, Members of the Centre for Security Analysis, ladies and gentlemen, it is a rare privilege for me to be here and share some thoughts and insights with you on the current status of the peace process in my country. I have greatly enjoyed and benefited from my interaction with Gen. Raghavan and Mr. Narayanan, and I greatly appreciate the opportunity that I have been given to interact both in Chennai and in New Delhi with groups of people who can make a substantial contribution to the evolving process in Sri Lanka to ensure that it keeps on track.

As the former Foreign Minister of India, Mr. Yashwant Sinha, told me when I was handling the peace process on behalf of the Government of Prime Minister Ranil Wickremasinghe, it is a long and arduous road, one must not be disheartened with breakdowns from time to time and, in a remark which proved quite prophetic, he told me that it is to be expected that at various times one side, sometime both sides, will leave the negotiating table but it has to be persevered. So that is exactly what is happening in Sri Lanka and I think it is very important that thinkers, policy makers, academics, and the military establishment in India are constantly informed and updated about the developing situation.

The recent statement issued by the LTTE, referring to the hurdles which have been put in their way according to them, stated that the LTTE would be suspending their participation in the Geneva talks until a "more conducive environment" is established for the continuity of the process. So we have today a situation which in some ways is comparable to what happened in March 2003, when the LTTE, in the same manner, suspended their participation in the talks, but not necessarily in the peace process. But that happened soon after the sixth round of talks in Japan and before the Tokyo Conference took place in June 2003. So in March 2003, the LTTE distanced itself from the ongoing dialogue and said they were no longer in a position to participate until certain concessions were established. They seem to be adopting the same position today but in a different environment and for a significantly different reason.

The stated reason for this decision on the part of the LTTE is logistical - the LTTE are saying that before they can go to Geneva to take part in a substantive dialogue, their eastern commanders must have the opportunity of having comprehensive discussions with the leadership of the LTTE. During the last two or three weeks, problems have arisen with regard to the movement of the LTTE commanders of the East for a discussion with Mr. Prabhakaran, Mr. Tamilselvan and others. The LTTE first wanted helicopters to be put at their disposal for this purpose; the government of Sri Lanka turned that down. Subsequently, when it appeared that movement had to be necessarily by sea, a variety of suggestions were put forward and the situation that has resulted in the announcement by the LTTE was precipitated by last minute developments, after the LTTE cadre had actually taken their places on board the vessel that was to take them to Mullaitivu. The LTTE then made the allegation that the Government of Sri Lanka had gone against certain assurances that had been given, which was categorically denied by the Sri Lankan government. The Sri Lanka Monitoring Mission, on this occasion, supported the stand of the Government of Sri Lanka. Although it appears to be a purely logistical issue for the movement of their commanders and cadres, there are political factors which undoubtedly underpin the present situation. Otherwise it would be a very simple matter for this problem to be sorted out.

I think there are three political factors which underpin the present impasse. The first is the problem that arose in the immediate aftermath of Geneva I with regard to the amendment of the ceasefire agreement. I entirely agree with Mr. N. Ram that one section of opinion in Sri Lanka straddling different communities - the Sinhalese, the Tamils, the Muslims - is appreciative of the ceasefire agreement. It may be imperfect but it has succeeded in ensuring a certain level of tranquillity in the country which has enabled the economy to develop. Investments have come and tourism too has been developed. So, there is clear appreciation for the negotiation process.

Now when the Sri Lankan negotiators returned to Colombo and had a media briefing, this question arose, and a spokesman for the government insisted that the CFA has in fact been amended in Geneva. The LTTE had it made clear from the very outset that they were going to Geneva for the express purpose of discussing the enforcement and implementation of the ceasefire agreement. As far as they were concerned the ceasefire agreement was a great accomplishment and the issue was not to improve it, or modify it in any way, but to ensure that its provisions are adhered to scrupulously on the ground. They made the point that if one party persist its endeavour to change the agreement without the consent of the other party, it would be tantamount to giving a notice in terms of the ceasefire agreement to repudiate the obligations that arise on the CFA.

So this controversy was generated by remarks that were made, not in Geneva, but after the delegation returned to Colombo and it led to considerable acrimony between the two sides. There was an immediate and harsh response from the LTTE and the atmosphere became somewhat bitter. Of course the government also maintained in its opening statement in Geneva that the ceasefire agreement was unconstitutional. They stated categorically that it was in conflict with the constitution, in which case of course it would have no legal basis. That is the first political issue.

The second political issue has to do with the Karuna faction, which is undoubtedly the most serious problem that arose in the history of the Liberation Tiger movement. The LTTE insisted that the government, in keeping with the provisions contained in the ceasefire agreement, Clause 1, sub-clause 8, should disarm the Karuna faction. It is now clear that this is not going to happen. The joint communiqué issued from Geneva by the Norwegian Government in its capacity as facilitator on behalf of the Government of Sri Lanka and the LTTE contained the same terms. This had the effect that the government would undertake to do two things - prevent armed groups other than the armed forces of the state from carrying arms or engaging in military operations in areas controlled by the government. The LTTE argued that it was necessary that they have the confidence that the government was going to disarm the Karuna group.

The government's response to that, at the moment, is threefold. Some people argue that the Karuna faction emerged after the ceasefire agreement was signed. So it is a post-CFA phenomenon and the provision of the CFA cannot possibly have anything to do with a situation that came into existence much later. A contractual instrument must be construed in the light of the circumstances that prevailed at the time the contract was entered into and it cannot be construed in any way in the light of supervening or subsequent circumstances.

Secondly the government is arguing that the Karuna faction is a creation of the LTTE. It is the LTTE which armed the Karuna faction and it would be unreasonable to expect the government of Sri Lanka to bear the burden of disarming it. The government asked the question that if another leader of the LTTE were to defect, carrying with him the arms which have been supplied by the LTTE, then would the government be called upon in that situation to disarm them? The government could not agree to this.

Thirdly there is a straightforward denial by the military spokesman for the government that there is no such activity taking place in areas controlled by it. The combined effect of all three of these arguments is that the government is not prepared to take any steps with regard to disarming the Karuna faction. So, this is the bone of contention and has pervaded the entire sequence of events. That is why I said that what appears superficially to be a logistical issue is in fact political in practice.

The LTTE said that the fundamental objective of the ceasefire agreement is to achieve conditions of normalcy or near normalcy. How can you expect a conventional Tamil family to return to their former homes in circumstances where there is a substantial military presence? That defeated the whole objective of a return to normalcy. It was unrealistic and unacceptable, and while they did not insist on the high security zones being dismantled, they certainly said that they should be scaled down and if that did not happen, then the principal purpose and aim of the ceasefire agreement was certainly not going to be accomplished. There was predictably very strong objection on the government side and the counter argument was that this would cause irreparable damage to security; that security concerns are paramount, and that they are nowhere near a final solution to this problem. It is therefore premature, the government argued, to take any significant steps with regard to scaling down or diminishing the high security zone.

It was in such a situation that we requested General Satish Nambiar to study the situation there and to prepare a report, which he did. The main line of reasoning contained in the Satish Nambiar report is that one does not have to make a choice between the security consideration and the humanitarian consideration. It is not a question of giving one of these objectives priority or precedence, but rather the challenge is to find a way of reconciling these two seemingly contradicting objectives. Satish Nambiar argued that it can be done in pragmatic terms using modern technology, i.e. without it being detrimental to the legitimate security concerns it is possible to reduce the number of personnel and to make their presence much less oppressive than it is at present. In the body of his report he made a series of detailed recommendations as to the achievement of this objective.

So these three political factors are very much at the core of the present dispute which has led to the LTTE's temporary withdrawal from the ongoing dialogue. It is not simply a question of sorting out this problem with regard to movements at sea. It is much bigger, much more complex and has a political complexion.

Against that backdrop, it is opportune to reflect on the basic features of the peace process. The Sri Lanka government endorses that view that sequence is just as important as substance. If we have to achieve practical results, sequence is important. What should be the priority right now? I think there can be no conceivable doubt as to the pragmatic answer to that question. The need of the hour is to preserve the ceasefire agreement because if the ceasefire agreement breaks down and if we return to a war or quasi-war situation, then the damage done will be irreversible. It is not simply a question of saying that for a few months we will have turbulence but we can get back to normal. I don't think that is going to happen. So the fragility of the ceasefire is paramount at the moment and the principal objective of the dialogue between the Government of Sri Lanka and the LTTE at this time should be to consolidate, to protect, to sustain the ceasefire agreement, and it is very, very important.

Of course we must have in our minds some conceptions of where we are going. What is the final objective? What is it that we are working for? The higher objective of course is political resolution. The joint statement of the two parties issued from Oslo on 6th December, 2002 was perceived at that time as a breakthrough although I agree that it was blown out of proportion. It was regarded as a breakthrough and hit the headlines all over the world; Mr. Wickremasinghe, who was at that time the Prime Minister, was in Japan, and he told me that even in Japan where he was travelling in a bullet train, news was flashed that the parties has agreed to consider a federal solution. So, that has to be the overall objective: substantial devolution of power within the framework of a single state, without division of state - division of power without division of state.

There has been a great deal of unnecessary tension and rancour generated by terminology. If we hold fast to the unitary concept then it is abundantly clear that no realistic solution can be found. I think most of you would be aware that as a sequel to the Indo-Sri Lanka Accord of 1987, we had the 13th Amendment, which for the first time in Sri Lanka established certain provisional or regional structures which were invested with legislative powers. So, there were certain responsibilities and functions which belonged to the centre and other powers were devolved; that is when provincial councils were set up. The complicating factor was that the Constitution of Sri Lanka says in Article 2 that Sri Lanka is a unitary state. In the constitution of 1948, there was no nomenclature or label attached. The unitary terminology found its way into the constitutional law of Sri Lanka for the first time in 1972 with the promulgation of the first Republican Constitution and the same terminology was retained verbatim in the second Republican Constitution of 1978.

When the 13th Amendment was enacted, it was promptly challenged before the Supreme Court on the basis that it was fundamentally inconsistent with Article 2 of Sri Lanka's Constitution. It contravened the basic postulate of a unitary state that was enshrined in the constitution of Sri Lanka. What is interesting is that the government of the day, the government of President Jayawardene, survived that challenge only by a whisker because the Supreme Court was split down the wing and the 13th Amendment survived only because of the casting vote of the chairman. So, half the members of the Supreme Court believed that this 13th Amendment was void because it brought into being a constitutional structure that denoted a clear departure from the principle. So the 13th Amendment is arguably incompatible with Article 2 which embodies the concept of a unitary state and anything in excess of it is a fortiori not reconcilable with the concept of a unitary state. So, we can't proceed any further along that path if we hold fast to the concept of a unitary state. This is why in any attempt to find a viable solution to the problem within the contours of a unitary state, the legal problems are insurmountable and there is proof of that in the judgment of the Supreme Court of Sri Lanka in the 13th Amendment case.

So, that is why I have consistently argued that we must not get bogged down by labels, terminology and nomenclature because Sri Lanka's fundamental problem today is the dramatic polarization of opinion and that polarization is going to be aggravated and exacerbated by the use of these terms which are highly emotive in content. You are addressing the hearts of the people rather than the minds; we need to be rational and cerebral rather than emotional. What is the Constitution of India - is it unitary, is it federal? Some legal scholars describe the Constitution of India as a weak federal constitution. Others characterize it as a unitary constitution with limited quasi-federal features. So it is very much a question of choice. Giving this kind of primacy or prominence to nomenclature is the wrong way to go about it. But these are issues for the future. The immediate task is to preserve the ceasefire.

When the 13th Amendment was enacted, the then President Jayawardene decided that devolution had to be uniform throughout the island and that it could not vary from province to province. A lot of water has flown under the bridge since then. President Jayawardene thought that it would be impossible to convince the people of Sri Lanka to accept quantitative differences. Whatever was given to the North and the East had to be given equally and without distinction to other parts of the island. I don't think that public opinion would take that stand today. The time is ripe to explain to the people of Sri Lanka today that there must be differences. We have to look at other models like Scotland and Wales. Of course it is also important to realize that no system however successful it may have been in another context can be mechanically applied to Sri Lanka. We must have the creativity to adapt those solutions to the circumstances in our own country. But I think asymmetrical devolution today is unavoidable.

Then what do you do with the concurrent list? We were of the opinion that it should be abolished. Our experience and the experience of other countries which have a concurrent list is that it becomes a source of interminable controversies. It creates far more problems than it solves. It is also absolutely essential to focus on fiscal devolution because, however substantial the devolution is on paper, it will not work on the ground unless the regional administrations are provided with the wherewithal and the pecuniary resources that are essential for effective discharge of responsibilities.

There is also considerable public opinion that you can perhaps start with the Indian model, modifying it to suit the Sri Lankan context. For example the circumstances in which the imposition of direct rule from Delhi is possible have to be worked out afresh in the Sri Lankan context. The mere ipse dixit of the centre that a situation has arisen which requires rule to be imposed from the centre will not be appropriate. These are all matters to be considered further down the road.

I will now examine some of the conceptual issues in the current set-up. We believed from the outset that one of the essential ingredients of success is that the community at large must believe that the peace process is immediately relevant and beneficial as far as they are concerned. It must not appear something esoteric, distant and remote from their lives. That is absolutely essential. This was the rationale underpinning the co-chair arrangement; you are aware that there are, apart from the facilitator, four co-chairs in the Sri Lankan peace process, i.e. Japan, the United States, the European Union and Norway. The high watermark was achieved in June 2003 when the representatives of 51 countries and about 25 multilateral institutions met in Geneva and pledged very substantial financial support for the peace process. We felt that to make the process come alive in the hearts and minds of the people of Sri Lanka, it was absolutely necessary to have access to resources of far greater magnitude than would be available from Sri Lankan budgetary resources. In Tokyo, 4.5 billion USD were pledged over a period of four years.

There were certain problems arising from that. I think this is the time for introspection and self-criticism, not to adopt a holier-than-thou attitude. At that time there was the hope and expectation that the financial incentive would soften the attitude of the LTTE. It was felt that the LTTE would be chastened by the expectation of very large financial benefits that would be used to develop these areas which have been ravaged by two decades of war. Today there is a feeling among the donors, the international community, that it was a reasonable expectation at that time but the LTTE has not really shown itself to be receptive to that kind of incentive and the changes in their behavioural pattern that were anticipated at that time have not been fulfilled. Therefore there has to be a fresh assessment and evaluation of that aspect of the situation.

There was yet another point and that was in relation to the perception of excessive internationalism. There was a strong body of opinion developing in Sri Lanka that we were losing ownership of the peace process. Basically it had to be home grown, home spun and driven by indigenous sources. That was the aspiration for the people of Sri Lanka. But I think there was the feeling that as the process was being developed, the donors were occupying the driving seat and the driving was not satisfactory. It was not an objection to the involvement of the international community but the objection rather was that the right balance, the right equilibrium, was not being struck. So these are all issues that need to be revisited at this time.

The third factor which is emerging on the surface in a very frantic manner right now is the role of the facilitator, Norway. The history of Norwegian involvement in this has been chequered. Norway entered in the late 1990s with the agreement of both the major political parties. President Kumaratunga consulted the leader of the United National Party, Mr. Ranil Wickremasinghe, and there was general agreement that Norway should be invited. But in the recent past there have been acrimonious allegations that Norway is lacking in objectivity and engaging with bias and prejudice. This is resented by Norway which believes that it is doing a difficult job under exceedingly complicated circumstances.

One of the issues which has recently been resolved and which it was hoped at that time would lead to the lowering of tension with regard to the Norwegian role had to do with the bifurcation of the functions of the facilitator and the monitor. It was argued that there was a conflict of interest here since the head of the Sri Lanka Monitoring Mission was also a Norwegian, and that there should be a separation of these two roles. This has been done recently after the election of the Rajapakse government because the ceasefire agreement does not require Norway to be the head of the Sri Lanka Monitoring Mission. This should bring a certain curtailment of the ambit of the Norwegian role in the Sri Lankan peace process. I think one of the problems here is the lack of clarity and precision. Again labels are being applied without a proper appreciation of their implication. For example, when we said that Norway must be facilitator and not mediator, it is very difficult to define in the abstract where facilitation ends and where mediation begins. So I think there has to be some clarity with regard to exactly what Sri Lanka expects of Norway. In the absence of that kind of strategy, I think it is unfair to keep negating the Norwegian role.

The Government of India is consistently supportive but it is obviously unrealistic to expect India to step into the shoes of Norway. It is not going to happen for a variety of reasons. I don't think India is ever going to accept the role of facilitator in the Sri Lankan peace process nor is it at all probable that India would agree to the co-chair. This does not mean that India is distancing itself from the peace process - India is involved, India is consulted and there are many ways in which India is playing a very salutary and supportive role. When I was handling the negotiations, I met two successive Indian Foreign Ministers, both of whom gave me every conceivable encouragement with regard to the peace process. So, we have also recognized that there are things that India can do and then there are other things that India cannot do. So it is in this context that there has to be a pragmatic appraisal of the role of Norway.

Mr. Ram also referred to the interim structure. I think he had in mind the very controversial, volatile document which was known as the Interim Self-Governing Authority (ISGA). Not many people are aware of the history of that; a lot of people believe that the ISGA came out of the blue, that it was presented to the Ranil Wickremasinghe government by the LTTE without any warning. In 2003, two attempts were made by the Government of Sri Lanka to formulate a structure for an interim administration. There were two documents prepared by the United National Front Government. We suggested that the LTTE put down on paper their minimum requirements if they were not satisfied with what we were proposing, rather than our making a third attempt for the formulation of the structure. It was in that context that the ISGA was prepared and it was handed over to me on the 31st of October, 2003. I got in touch on the telephone with Prime Minister Wickremasinghe who at that moment was on his way to Washington. I made him aware of the contents of the document and we discussed the appropriate response. I worked on that response throughout the night and on the 1st of November 2003, we published a response which basically was on these lines. We said that there was a huge gulf between our thinking and that of the LTTE and we could not accept this document in its entirety. However, we were prepared to sit down and talk to them and we believed that in a principled process of negotiation we would be able to narrow down the differences. A meeting between Anton Balasingham and myself was organised but the whole process was aborted by the action taken by the then President Kumaratunga, on the 3rd of November, 2003, to take over three critical Ministries including the Ministry of Defence. That led to the collapse of the process and in February 2004, the President dissolved Parliament and the UNF government was defeated in the general elections.

If you consider the concept of an interim structure in general, not the ISGA in particular, that is a matter on which there has to be serious and mature reflection. There are many situations in which one of the conceptual features of a successful peace process included an interim administration. The very good example is South Africa. Because the situation is so complicated, it is unrealistic to expect to arrive at a final solution immediately, and there may be some scope for an interim structure, provided there is a continuing trajectory of the process. Human rights, pluralism, and participatory values would be as much a feature of the interim arrangement as they would be attributes of a final settlement and it is for that reason that Ian Martin, former Secretary General of Amnesty International, was invited to come into the process and advise us in a very detailed form with regard to the human rights dimension and how it would be acceptably incorporated not only in the mid-term and final solutions but also in the interim structure that was envisioned at that time.

There are just a couple of points before I conclude. Mr. Ram asked about the popular reaction to the peace process. I think one of the weaknesses of the Sri Lankan peace process has been a disconnect between the process at Track I, and highly publicized, meetings between the Government of Sri Lanka and the LTTE, and the civil society. There was a great deal of media attention paid to these developments, but the civil society, the community at large, was not sufficiently involved. So, we had to address the whole question of modalities for ensuring continuing intensity of involvement on the part of the community at large. Otherwise there is a sense of indifference, inertia, and lethargy in resolving the peace process. Desmond Tutu referred to the High Table and the Long Table. The High Table is the Track I, highly conspicuous and visible. But the Long Table, which consists of political leaders, academics, professionals, trade unions, the business community, continually feeds into the dialogue at the High Table.

There is also the issue of handling the media. During the six rounds of talks that we were involved with, our relationship with the media was quite unique. No peace process was handled in that way. When we were talking with the LTTE in Thailand, for example, the Government of Sri Lanka, the LTTE, and the media were all accommodated at the same hotel. When we were preparing in the morning for the peace talks, the media would surround us and ask us questions about the agenda, and we would tell them. Then when we came to the hotel at lunch time, after the morning session, the media would question us again. Of course at the end of the session there was the official media briefing at which the local and international media had the opportunity of raising questions to both the parties. But over and above the formal media briefing for which provision had been made, there was this informal interaction on a daily basis throughout the negotiating process. Now is that too much visibility and exposure? Towards the end there were serious misgivings about this degree of exposure and there was a conviction that certain matters have to be discussed in a somewhat more confidential manner. So that is why when the present government resumed the peace process, I am talking about Geneva I, it was not done like that. The media did not have access to the negotiating teams when the talks were in progress. They were invited to attend the briefing at the end of the session, not during the session.

The second point in this connection is that you have to be very careful not to pitch the threshold of expectation too high. This was one of the serious problems that we had to grapple with and the reason was that in the first few rounds there was a dramatic development, the highlight of which was referred to by the Chairman, Mr. N. Ram, that is the so-called breakthrough on the 5th of December, 2002. When you have a development like that in the first few rounds which hit the headlines all over the world, there is the natural expectation on the part of the community, and the media in particular, that every session would yield a conclusion that would be appropriate for headlines. Obviously you can't do that because once you agree on exploring federalism, then the rest is nitty-gritty. That is not dramatic; it is tedious, it is monotonous and it is time consuming. Because this momentum was not being maintained, the inference was that there are serious problems, which was not necessarily the case. The management of expectations is very important. It is why when the present President convened an all-party conference prior to Geneva I, he said that it was very important not to let the public entertain too high a level of expectation and not to be too ambitious because that would damage the prospects of a successful negotiation.

Mr. Ram referred to the question of southern consensus. This is a very crucial point. The peace process is not something that was attempted yesterday or the day before. It goes back fifty years to the Bandaranayake-Chelvanayagam pact of 1958. The tragic history of the matter for the last five decades was that the government came up with some viable proposal only to find it torpedoed by the party in opposition. This is attributable to the adversarial, confrontational political culture which is a bane in our country. That is why the present President put such strong emphasis on the all-party conference which was convened just before and just after the negotiating session. His argument is that whatever you agree to at the negotiating table is not going to be implementable in the absence of a strong consensus in the south and he is endeavouring to achieve that consensus.

We have to remember at all times that this is our problem and there is no question of abdicating responsibility and blaming the international community when things go wrong. That is an irresponsible attitude. Our friends can help us but at the end of the day the solution is in our own hands because this is our problem and as a nation we have to formulate a solution with the assistance of the international community. We have to try to marginalize the radical elements on both sides of the divide and we have to ensure that decisions are not made on the basis of emotion. It has to be a rational approach. We have to cry halt to the dramatic process of polarization; religious leaders are doing yeoman service in that regard. There has to be vigour and vitality on the part of civil society. These are some of the conditions that I can identify as being indispensable for success if we have to seize the opportunity that we are now presented with. In the famous words of Shakespeare, "There is a tide in the affairs of men, which, taken at the flood, leads on to fortune." Finally, the decisions that we make at this time must not be seen as exclusively the responsibility of one government, or one political party, but it has to be a collective endeavour on the part of Sri Lankan society as a whole.