Still missing in Mullaitivu

More than seven years after the brutal three-decade-long civil war ended in Sri Lanka, people are still picking up the pieces and searching for their loved ones.

 October 1, 2016

• MEERA SRINIVASAN- 1, 2016 00:51 IST 
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The last time Mary Sabamalai saw her son Mayuran was in 2008, when he came home for his 21st birthday.

This was about a year after she “surrendered” him to the Liberation Tigers of Tamil Eelam (LTTE), during the final stages of their battle against the Sri Lankan armed forces. Mayuran went missing in 2009.

Since then, Mary has been to different government offices in Mullaitivu and outside, carrying his photograph. Tall and lean, he is dressed in white formals, sporting a tie. Not a day passes without Mary, 52, wondering about Mayuran, the eldest of her four sons. She has two daughters. Her husband, now in his sixties, is a fisherman who takes up other odd jobs occasionally. Some months ago, Mary petitioned a presidential commission looking into cases of missing persons. “I got an acknowledgement saying they have received my letter, but that is all,” she says.

Mayuran, she firmly believes, is alive somewhere.

Kamala (name changed) knows how to keep her four-year-old busy. “Look, the hens are running. Catch them,” she tells him, just so that he would move away from her bicycle that stands slanted. Her trick works. But three minutes later, little Mukesh (name changed) squats behind the rear wheel and looks at her through its spokes. He giggles quietly, sensing her fake anger.

It is not often that Mukesh gets to play with his mother. On most days, Kamala sees him for barely two hours after she returns from work. “I usually leave at six in the morning and get back by 7 at night,” says the 25-year-old. It was past lunchtime that Saturday and she had not heard from the farm where she is employed. The day’s labour fetches her Rs.600 (roughly INR270), if she picks a sack-full of groundnuts and shells as much. On some weeks she gets called for work all seven days. Like Kamala, many in Mullaitivu work in kachchaan or groundnut farms, as farm hands. The district accounts for the second highest share of groundnuts produced in the country. But that is not what Mullaitivu is best known for.

The dogs of war

Home to nearly 1.3 lakh people, mostly Tamils, the town located on Sri Lanka’s north-eastern coast paid heavily during the three-decade-long civil war that ravaged the Tamil-dominated Northern Province. Its residents, displaced multiple times, are slowly stitching their lives together. They cannot let go of the past, and the present holds them in its vice-like grip.

A UN panel of experts’ report published in 2011 estimates some 40,000 civilian deaths in the final phase of the war. The report attributed most civilian casualties to “government shelling”, a charge that Colombo has flatly denied. The impact was most intensely felt in Mullivaikkal village here, where thousands of displaced people took refuge. That is where Kamala lost her mother and her young husband.

It is more than seven years since the Sri Lankan armed forces defeated the rebel Tigers, ending the brutal war. In October last year, the UN Human Rights Council adopted by consensus a resolution moved by the United States, and co-sponsored, among others, by Sri Lanka, that seeks to probe allegations of human rights violations during the war. Even as different actors argue for and against international judges participating in the process, survivors in the country’s war-ravaged Northern Province continue battling its lingering aftermath every day of their lives.

Gruelling schedules

“After my first husband died, soldiers would just walk into my house and speak very inappropriately. They would harass me day after day. The local men were even worse. They would just hound any woman living alone. I knew I could not survive by myself, that too with a child. I got married again,” says Kamala.

Her days now begin at four in the morning. She takes an hour to cook and pack rice meals. She makes four packets, two each for her husband and herself to take to work. “We have rice for breakfast and lunch, there is no time to make anything else.” When she returns home in the evening, it is time to prepare dinner. After her father died in 1996, it was Kamala’s mother who toiled as a labourer to support her and her siblings. “I didn’t realise her role when she was alive, but today I miss her the most. Had she been around, she would have taken care of my children while I am away at work,” she says, fixing her glance at Mukesh, who is still playing with the cycle pedal.

Kamala does not seem to mind her gruelling schedule. At least it takes her mind off the past. Right from her school days, distress followed her like a shadow. “The LTTE demanded one child from every home to join their cause. They took me. I could not stand their horrible practices and somehow managed to escape, risking my life.” She dropped out of school in Class VIII.

Even as she despises the LTTE for taking her by force, she thinks the organisation helped maintain some order in the town. “The rampant alcoholism we see today would have been impossible had the Tigers been around. Things were not so costly. Life was better in a sense.”

With her husband too engaged in daily wage labour, the couple gets by with some support from an elderly neighbour who takes care of Mukesh during the day. Her elder son, who is seven, lives with an aunt in Kilinochchi, about 50 km away. Kamala has not spoken to her aunt in weeks. “If I do my son cries a lot, asking me when I will bring him here.”

She plans to, in January. But by then she would have to think of ways of sending him to school. “Whether it is transport or tuitions, everything costs money.” A tiny home built with financial aid, an uncertain job and a meagre income from it is all she has.

Catch-22 on the coast

On the other side of Mullaitivu, closer to the coast, are families whose lives are tied to the sea. Fishing is a key driver of the district’s economy, along with agriculture.

A small group of women gather at the front verandah of one of the homes. They are attired in gowns that flow below the knee, some in bold colours sporting floral prints. It is past noon and very warm, the sporadic sea breeze alone bringing some relief. “They used to call this place a prawn bank,” says Edel Queen, who formerly headed a women’s organisation here. The catch has fallen in the last few years, largely due to Indian trawlers fishing illegally in Sri Lankan waters. More recently, Mullaitivu fisherfolk are being forced to compete with fishermen from the southern districts of the island who have begun fishing in the northern seas. The drop in fish production has left many men and women jobless. Edel recalls a time when women worked on the shore, tapping and drying fish, making small sums of money on a regular basis. “Now that has become impossible,” she says.

Many of them burnt their fingers borrowing money to set up small businesses. Leasing companies have mushroomed in the north, says Edel. Trying to replay old loans, many find themselves trapped deeper in debt. According to government data in 2012-13, Mullaitivu has the highest percentage of poor households in the country at 24.7 per cent. The mean household income here, as per census data for 2012-13, is Rs.23,687 (approximately INR10,700), the lowest among Tamil-majority districts, and in the country.

With few options, most of the women now take up odd jobs for a small daily wage. They make and sell fruit juices in the village or package grocery items in small quantities.

A few others, mostly younger women, have joined a garment factory in Puthukkudiyiruppu, travelling 20 km one way. This is one of the three factories that were set up in the north following the war.

Employing many thousands of women, mostly in their twenties, the factories draw cheap labour. The women stand all day and work, making branded garments that fetch them a few hundred rupees every day. With no crèche or child care facility, the factory automatically excludes young mothers.

Broken families 

According to the District Secretariat records, Mullaitivu has nearly 6,000 women who are the sole breadwinners in their families. At least 5,000 women are widows, with many of them losing their husbands during the war.

In addition to the many thousand lives that the indiscriminate shelling claimed during the conflict’s last days, over 750 people in the district are reportedly missing. Some since the 2004 Indian Ocean tsunami that devastated the district. And others during the war, due to enforced disappearances.

“My neighbours saw the army personnel arrest and take away my husband. I don’t know where he is, I am still searching for him,” says Nirmala (name changed), a woman in her early thirties. She has checked in rehabilitation camps, prisons and hospitals in vain. “Some say he might have died, I don’t know. What if he is alive? He must be alive, somewhere far away.”

Between appearing before commissions that hold public hearings and running to government offices with petitions, she takes up any daily wage job that comes her way to support her two young children.

Amid growing pressure from families of missing persons, the government in Colombo recently decided to set up an Office of Missing Persons by an Act of parliament. “It is a welcome move, but it should be set up in Vanni,” says Nirmala, referring to the mainland area of the Northern Province. “We cannot keep running to Colombo every time, right? How will young mothers go all the way, forgoing a day’s income and spending on the journey? Who will take care of their children?”

A missing person, in many families, also translates into having one less earning member. Aged parents and young spouses run from pillar to post, seeking answers or, possibly, some closure.

Almost every family has lost a relative to the war, or is looking for a missing member. Many homes have a photograph of a relative hanging in the living room, with an oil lamp lit beside. Grief over the past coexists with anxiety about the future.

Men are engaged in daily wage jobs, if not in farming or fisheries. However, given the number of single women running homes, there is a desperate need for sustainable jobs and child care facilities, the women emphasise.

“We need industries. That too industries linked to our natural resources — the sea, agriculture or forests,” says Edel. “They teach us to sew or make sugar candies or pappadam [a lentil-based flatbread]. How long can we do that? Where is the market? How do we compete?” she asks, having tried it all — from skills training workshops held by government and non-governmental organisations to entrepreneurship.

Vanni parliamentarian Shanthi Sriskantharajah agrees. “The reason that women have not got into palmyra products is because there is no market. We need industries focussing on natural resources of the region. And we need to find a way of marketing the products.”

This is something that neither the central government in Colombo nor the Northern Provincial Council elected by the Tamils seems to act upon. “They keep organising some programme or the other for women. They buy them milo packets and make presentations. That’s about all. Nothing changes,” Shanthi notes.

Accessing natural resources comes with a set of challenges. If fisherfolk are faced with a diminished catch, many farmers are fighting for their land that is still under military occupation.

After President Maithripala Sirisena came to power in January 2015, defeating former strongman Mahinda Rajapaksa, he began releasing private land that the armed forces had occupied during the war. In Mullaitivu, the government has released almost 1,000 of the 2,000 acres taken over by the army, according to the District Secretariat.

Reclaiming land after 30 years of displacement involves major adjustments for the displaced families. Those who were children back then would have grown up now and have families of their own, explains Sundarampillai Sivamani, a 60-year-old farmer. “Sivam akka”, as she is known in her village, grows paddy and groundnuts on a small farm her family has taken on lease. The five acres she owns have been occupied by the forest guard for years.

“That is what happens when you get displaced for so long,” she tells me, sitting at a bus shelter. Families lost members. They lost birth certificates, national ID cards, land deeds. The missing documents haunt them as they try to trace and reclaim their own land. “But I realise how lucky I was, I did not lose any of my children.” Especially since she witnessed her 14-year-old nephew succumb to a bomb that landed near their bunker. “He had a bath, and had oiled and combed his hair so neatly. He looked like a prince that day.”

She remembers his last words, “Athai (aunt), I am feeling very scared today,” he told her. “Don’t worry, we are in a bunker and will be safe here,” she assured him. The army had said they were all safe there. He probably believed her. “He smiled.” Within minutes, however, she heard his mother scream. “A shell had pierced through his head and he dropped dead. His smile was intact,” says Sivamani, her bold voice suddenly shivering. No one had time even to bury the bodies there or grieve, they had to run for their lives.

Battling everyday challenges

In Mullivaikkal or Nandikadal, the lagoon where LTTE leader Velupillai Prabhakaran is said to have been killed by the army, the residents are under watch, though many observe that surveillance has lessened since President Sirisena came to power.

“Is it okay to be named,” they ask each other as they give interviews. “It should be fine, we aren’t saying anything that is untrue,” one of them reassures. “We can’t take a chance, you never know with the military,” warns another. They negotiate this everyday fear, systematically evoked by the government and the armed forces in the island’s post-war years.

They try out different ways. Some Tamil women have joined hands with Muslim women who have recently returned to Mullaitivu, years after the LTTE forcefully evicted them. “We have to reflect on the past together. Or we cannot move forward,” says a prominent member of the group, requesting anonymity. 

“Our Tamil leaders do not look beyond Jaffna. They do not know how we live in Mullaitivu,” she says with anger. This feeling of being left out in the margins is not uncommon in the district. “Leaders in Colombo will not let us come up in life. Their actions keep reminding us that we are Tamils, that we are second-grade citizens.” They feel abandoned. “There are some changes, we must acknowledge,” intervenes another member of the women’s group. They do not agree with each other. But they don’t mind listening.

However, most of them have little time to dwell on anger or resentment. The stark reality of negotiating each day presents a challenge. A kilo of rice costs 68 rupees (roughly INR31) in Mullaitivu. Sugar costs Rs.100. Coconut, 30 to 40 rupees. And sea fish, Rs.500 per kg. “This is our situation today,” says S. Mary, also employed in a groundnut farm like Kamala.

Her family, like several others in Mullaitivu, migrated from the island’s hill country, where Tamils of recent Indian origin live and make a living at the country’s famed tea estates. “We left during the 1983 riots in the south.” Only to face an even worse war in the north. “I want to go back to the hills now,” she says.

Kamala hopes she gets called for work the next morning.

Radical – Democratic Restructuring Of The State Or Preserving The Status Quo?

By Surendra Ajit Rupasinghe –September 30, 2016

Surendra Ajit Rupasinghe

The process of constitutional reform, establishing an accountability mechanism and seeking a political solution to the National Question is bound to be a highly contested and polarized arena of ideological and political struggle. Already, the new constitution is being labeled as a ‘death trap’, by the Joint Opposition. Any form of accountability will be trumpeted as betrayal of the ‘Ranaviruvos’. Any concession towards solving the national question would be blasted as promoting ‘separatism’. The 2/3 majority in Parliament held by the government would split, once these issues are taken out publicly in the form of referendum. This eventuality would lead to shameless conciliation, compromise and appeasement with the chauvinist-supremacist forces and preservation of the status-quo, with some reforms thrown in. The prospect of a radical restructuring, democratization and humanization, which calls for dismantling the chauvinist-supremacist State and its replacement by a modern, democratic – pluralist State – at the very least would be jeopardised. Some dominant sections of the TNA would be coopted, but the more nationalist militant factions would be severely marginalized. The sparks of separatism would gather more force than ever before, while all those who dreamed of radical change and a better future would end up in utter despair. In this context, it is worthwhile to look at the present alignment and configuration of the political forces and how the game would be played out.

Internal Contradictions Within and Between the Yahapalanaya Camp

One of the chief planks, if not the main plank, of the ‘Government of National Unity’ that has brought the two main traditional political parties- UNP and the SLFP – together, is the pledge to establish a Regime of ‘Good Governance’. However, it cannot be assumed that this overarching concept was understood in the same manner by each and every one that supported it and brought the new Regime to power. Nor can it be assumed that there was informed consensus even between and within these parties and their respective partners and supporters. It was simply the ‘catch slogan’ of the hour that cut through the major dividing lines of class, nationality, gender and geography. What was shared at the minimum was the need to end the era of dynastic dictatorship of the Rajapaksa Regime. It was, however, commonly understood to mean a cleanup of rampant and institutionalized corruption and abuse of power and the establishment of the Rule of Law, combined with prosecuting those found guilty of high crimes. For the progressive Tamil and Moslem voters, they expected to be recognized as nationalities, with parity of political status. This was the ‘Social Contract’ between the followers and supporters of the ‘Yahapalana – Good Governance- camp.

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Tamils resort to nationalism to shore up eroding political base

A Sri Lankan ethnic Tamil prays for her relatives who died in fierce fighting between the army and Tamil Tiger rebels in Mullivaikkal in Sri Lanka last year. Pic: AP.

By JS Tissainayagam-30th September 2016

In its list of demands, the ‘Eluga Thamil’ (Tamils Arise!) rally in Jaffna, Sri Lanka, on Sept 24 included phrases that form the bedrock of Tamil nationalism – ‘Tamil nation,’ ‘sovereignty’ and the ‘right to self-determination.’

This is because the Sri Lanka government and Tamil politicians supporting the regime are deemed ineffective in preventing the Tamils’ political power base from eroding, and supporters of the rally believe that nationalism is the bulwark against such attrition.

The rally was called by the Tamil Peoples’ Council (TPC), a loose coalition of political parties, civil society organisations and religious bodies co-chaired by the chief minister of the Tamil-majority Northern Provincial Council (NPC) C. V. Wigneswaran.

“Elected representatives cannot deliver the goods unless backed by a peoples’ movement,”said Wigneswaran, explaining the purpose of Eluga Thamil.

The circumstances that gave rise to Eluga Thamil echoes events in the 1970s.

In 1972, Sri Lanka’s Parliament, sitting as a constituent assembly, was debating a new Constitution. The Tamils, who are the minority in Sri Lanka, put forward demands for a Federal Constitution to share power with the majority Sinhalese. The Sinhalese, however, favoured a unitary state that concentrated political power in a central Parliament.

SEE ALSO: Sri Lanka constitution: What’s in it for the Tamils?

Failure of their efforts to convince the Sinhalese on federalism eventually led to Tamils demanding secession through peaceful, non-violent means in 1976. The suppression of this was gave rise to armed separatism that ended in May 2009 with the military defeat of main rebel group, the LTTE.

Following the presidential and parliamentary elections in 2015, a national unity government was cobbled together, pledging to work according to principles of good governance. Although in the opposition, the Tamil National Alliance (TNA), the largest Tamil parliamentary party, provides the regime support, especially on matters of national reconciliation.

Good governance, however, has not delivered much to Tamils, either in protecting their rights or ensuring security. Sections of the Tamil population that believe this is due to the eroding power base of the Tamils were an important element that called for Eluga Thamil.

One of many weapons wielded by successive governments in Sri Lanka to diminish the Tamil political power base has been changing demographics in the Tamil-dominated Northern Province, where Tamils are 88 percent, and in the Eastern Province, where Tamils and Tamil-speaking Muslims are a majority.

Changing demographics were underway by the 1950s, principally through the state-sponsored settlement of Sinhalese – known as colonisation schemes – in areas where Tamils were the numerical majority. It was believed that Sinhala settlers would vote to ensure fewer Tamil legislators would be elected from these areas, thereby reducing Tamil representation in Parliament. It would also give local government control to Sinhalese. Moreover, large pockets of Sinhalese could threaten the physical security of Tamils through riots and pogroms. This strategy continues even today.

SEE ALSO: UN rights body OKs call for postwar Sri Lanka accountability

Demographic changes through settlements have been compounded by two other projects. One is using the almost exclusively ethnic Sinhala military to undermine civic life in the Tamil areas. This is by the military holding large areas of land both private and public. Although some land is being returned to Tamils, it is at a much slower rate than desired.

The second strategy is for the military to own businesses, ranging from wayside kiosks to hotels in Jaffna. 

This has led to frequent complaints by Tamil entrepreneurs that they face unfair competition. Further, militarisation has disempowered civilians from taking charge of their lives.

Holding on to land and running businesses within a militarised environment has led to the continuation of an unstable society with large numbers of internally displaced persons (IDPs) and an unsure future for entrepreneurs who want to invest in the North. These conditions make populations politically apathetic, as well as serves as an important push factor for outward migration. This, in turn, negatively affects the Tamil political power base.

This is why Tamils feel they are not in control of their politics and asserted the right to self-determination at the Eluga Thamil rally.

SEE ALSO: Sri Lanka says it will quickly process Tamil prisoners

Another issue connected to fears of changing demographics and the eroding Tamil power base is the complaint of the Tamil identity being challenged by building Buddhist temples in Northern and Eastern Sri Lanka. Sri Lankans are 70 percent Buddhist – who are almost all Sinhalese – and a large majority of the military is Buddhist too. The building of temples is a tangible way of advertising Sinhala-Buddhist control of the areas where they are built.

The Eluga Thamil rally challenged ‘Buddhisation’ by emphasising the ‘Tamil nation’. Nationalism is certainly controversial, but a mass of people live in northern Sri Lanka are bound by ties of language, culture and shared history. That doesn’t deny differences exist within Tamil society based on caste hierarchies, religious differences and patriarchy. But faced with attacks on social coherence by the introduction of cultural symbols they disapprove, Tamils have turned to nationalism as a bulwark.

As in the 1970s, Tamils believe that a way to minimise adverse changes in demographics, social coherence and insecurity is through a Federal Constitution where at least a modicum of control could be retained by Tamils in the North and East with Tamil-speaking Muslims by sharing power.

Although the TNA’s election manifesto calls for a Federal Constitution with a merger of the Northern and Eastern provinces, there is suspicion that the structure of the state under the new Constitution would not share power effectively with the provinces. This is due to the implacable opposition of the Sinhalese to federalism. Prime Minister Ranil Wickremesinghe said there was no need “to change the unitary character of the Lankan state”.

Sri Lanka Prime Minister Ranil Wickremesinghe. Pic: AP.

SEE ALSO: Sri Lanka leader calls for reforms to promote ethnic harmony

These statements have not hindered the TNA’s hierarchy from believing that working without public protest against the government is the best way to forge a Constitution that is beneficial to the Tamils.

Speaking on the Eluaga Thamil rally, TNA spokesman M. A. Sumanthiran was quoted as saying, “It is not appropriate … to launch a protest … when the party was holding discussions with other political parties in the country on the proposed new Constitution.”

However, a significant group of TNA senior members, including Wigneswaran, chose to disregard the party line.

This is because three questions vex those who believe the TNA will not negotiate meaningful federalism with the government: Why the secrecy shrouding negotiations; how would the Federal Constitution pass a constitutional assembly, a large majority of which is Sinhalese parliamentarians who reject federalism; and how will a draft constitution pass in a referendum where 70 percent expressing an opinion will be Sinhalese?

The Eluga Thamil rally is the expression of Tamil frustration witnessing the bases of their political power being compromised in favour of perpetuating Sinhala hegemony, as TNA members in the committees of the constitutional assembly appear to pussyfoot on pushing for a meaningful federal constitution.

In the minds of the organisers of the rally and their followers, the only way to keep their political power base intact is by resorting to a mass movement based on Tamil nationalist sentiment.

The question is whether the organisers of Eluga Thamil have the vision, determination and stamina to continue to press their demands through a mass movement in the event the government and the TNA fail them, or if this spark is destined to only sputter and die.

** This is the personal opinion of the writer and does not reflect the views of Asian Correspondent

SRI LANKA: FRIDAY FORUM OUTLINES KEY PRIORITY CONCERNS FOR CONSTITUTIONAL REFORM

(Incorporation of Social and Economic rights into the Chapter on Fundamental Rights says Friday Forum; photo of a vegetable seller in Kilinochi market, August 2016 ©s.deshapriya)

30/09/2016

1. Repeal of Article 16 in the 1978 Constitution

Article 16 of the present Constitution states that all existing law at the time the Constitution was promulgated remains valid notwithstanding any inconsistency with the fundamental rights chapter of the Constitution. This Article prevents judicial review, i.e. scrutiny by the Supreme Court, of laws in existence before 1978 even if they violate Constitutional guarantees on fundamental rights, including equality and nondiscrimination.

There are many pre 1978 laws that violate fundamental rights that have not been reformed by Parliament and our legislators even during the long period of 38 years since the 1978 Constitution was adopted. Many of these laws are discriminatory of women and other social groups and include laws relating to land and criminal law.

A significant body of law that also continues to remain valid is the diverse personal laws that are applicable in Sri Lanka and which apply mainly in the areas of marriage and inheritance. Two of these systems of personal law, i.e. Kandyan law, applicable only to Kandyans, and Tesawalamai law, applicable only to Tamils of the Northern Province, are not religion based. Further, in their present form they have no link to their original customary or traditional roots as they have been significantly altered by British colonial legislation and court decisions that have superimposed ideas borrowed from Roman Dutch Law on these systems, and diminished the rights of women of these communities. Only the personal law of the Muslim community is based on religion and is derived (in some respects) from Islamic Law. All these systems of personal laws discriminate against women and need to be urgently reformed.

It is therefore critical that the new Constitution repeals Article 16 and provides for judicial review of all the laws that violate the new Constitution. While the constitution must continue to guarantee the freedom of religion as part of general guarantees on fundamental rights of the people, it must also guarantee equality by providing room for discriminatory clauses of laws that are inconsistent with the bill of rights to be amended or not enforceable.

The new Constitution will undoubtedly incorporate the legitimate right of the State to enact laws and policies on manifestation of religion that infringe fundamental rights guarantees. These limitations must conform to the norms already incorporated in our Constitution that will be further clarified, in harmony with accepted norms on implementation of human rights in the public interest. Consequently, practices that discriminate against Muslim women must be modified by the State, but in consultation with the Muslim community. The community consists of both men and women and the voice of the women must be heard.

2. Incorporation of Social and Economic rights into the Chapter on Fundamental Rights

The present Constitution, following the Indian Constitution, only recognises that State violations of civil and political rights, (for example, the right to be protected from torture and illegal arrest and the right to equality) can be challenged in the Supreme Court. Socio-economic rights are not given the same status as civil and political rights as they are considered to be issues of social welfare policy decided at the discretion of the State. Thus, while the Constitution declares that the State is pledged to establish a social order in which social, economic and political justice shall guide all the institutions of national life, and the realisation by all citizens of an adequate standard of living, such provisions have been relegated to the chapter on Directive Principles of State Policy, and are not justiciable.

Young girls in Nedunkarni of a war affected family without any fixed income , Aug 2016 ©s.deshapriya

Yet, social and economic rights including the right of access to health and education in State/public institutions has been recognised as the right of all our people since the 1940s, due to the visionary policies introduced by our early political leaders. Today these are considered peoples’ rights despite the absence of Constitutional guarantees or legislation. We have all witnessed the crisis in these sectors due to the failure to increase and allocate adequate budgetary and human resources to maintain and enhance them. At the same time Sri Lanka’s continuing positive social indicators for the people, in both the areas of health and education, have been consistently traced to the investment in public education and health from the pre-independence period.

It is critical that the negative changes that we have witnessed in recent decades, and the reduction in allocated resources are arrested. Recognition of socio-economic rights in the new Constitution is one way of ensuring budget scrutiny and accountability in the use of national resources in the public interest, instead of fiscal profligacy and waste of public funds. Socio-economic rights such as access to the highest available standard of health care, education at primary, secondary and tertiary levels, and other basic needs such as food and water, housing and shelter must be considered basic rights of all the people, to enable all Sri Lankans to access these “public goods” and share the dividends of economic growth and development. This does not mean that we should not recognise a public/private mix in these areas, and discourage or prevent the involvement of the private sector. What this will demand is responsible allocation of public funds by the State for these sectors, even as the private sector provides alternatives, and is regulated by the State to ensure high quality of services.

Current global developments reflect the shift towards incorporating socio economic rights in Constitutions. The recent multilateral UN treaties, many of which Sri Lanka has already signed on as a State Party, give civil and political rights and socio economic rights equal status as justiciable and enforceable rights of the people. This development incorporates the international consensus in Vienna in 1993, which recognised that all these rights are indivisible and interdependent. The same concepts on socio-economic rights are reflected in global policy documents that Sri Lanka has endorsed over many decades since 1978.

International agencies that this country has worked with like WHO and UNICEF have also supported national and provincial programmes in recognition of these treaty norms, global policies and local agendas. The most recently accepted Sustainable Development Goals (SDG) agenda which sets the benchmarks for progress of nations and creates commitments for governments for the next 15 years recognises socio-economic rights in the above areas, and expects that governments will implement them. The SDG agenda also focuses on the aspect of financing to ensure that SDG goals and targets are implemented.

It is also pertinent to clarify that some 70 countries have, in the last two decades incorporated socio-economic rights into their Constitutions, and considered their recognition and enforcement through the courts in the public interest. These countries include those with Common law systems, like South Africa and Kenya, and those with civil law systems such as Bolivia and Ecuador. The Indian Supreme Court has over the years overcome the limitations on the non- justifiability of socio-economic rights through judicial interpretations, and these pioneering judgments have also influenced other courts, including in South Africa and Nepal. The jurisprudence in our courts has on occasion tried to recognise the rights of the people in areas such as environmental protection, but the Constitutional imperatives have been a limitation.

Those who argue against recognition of socio-economic rights suggest that it will result in an erosion of the separation of the legislature and the courts as it will give the courts the power to question government policy decisions on development and economic growth. They argue that this must remain the proper domain for law makers in Parliament and the Executive. However when these institutions fail as custodians of the public good, there must be an agency that promotes accountability and ensures the rights and welfare of the people. The experience of other countries with Constitutional provisions on socio economic rights indicates that clear drafting of such provisions, using concepts such as “proportionality” “reasonableness “ “within available resources” “allocating maximum available resources” can, and have ensured that the courts do not exercise open ended discretion. Cases decided in Indian and other courts demonstrate that extremely expensive procedures and facilities are also not considered the type of resources that the public systems must regularly provide.

The argument of “affordability” cannot be used to prevaricate on providing the basic needs of the people. Indeed, even the implementation of civil and political rights which governments are committed to realise today, require allocation of adequate resources and financial provision. Law enforcement is prejudiced by failure to allocate resources. Socio-economic rights enforcement requires the same accountability as in the implementation of other rights. Lack of faith in the competence of the Courts to perform their role cannot be addressed by limiting their powers but by using the new Constitutional reforms to create an environment for a qualified and independent judiciary. We can no longer afford to leave the task of allocation of national resources to benefit the people to the legislature and the executive without some oversight of their accountability.

Prof. Savitri Goonesekere , Bishop Duleep de Chickera, Prof. Arjuna Aluwihare

For and on behalf of Friday Forum: Prof. Savitri Goonesekere, Bishop Duleep de Chickera, Prof. Arjuna Aluwihare, Shanthi Dias, Dr. A.C. Visvalingam, S.C.C. Elankovan, Chandra Jayaratne, Priyantha Gamage, Dr. Upatissa Pethiyagoda, Ananda Galappatti, Dhammapala Wijayanandana, Faiz-ur Rahman, Prashan de Visser, Prof. Gameela Samarasinghe, Dr. Devanesan Nesiah, Rev. Dr. Jayasiri Peiris, Prof. Gananath Obeyesekere, Pulasthi Hewamanna, Daneshan Casie Chetty, Prof. Ranjini Obeyesekere and Suresh de Mel.

(The Friday Forum is an informal and self-financed group dedicated to democracy, good governance, human rights and the rule of law. It has for over five years sought to alert the public on issues concerning the rights of the citizen. We work on a non-partisan basis and have been critical of both the Government and Opposition.)

BBS protestors issue death threats to Tamil Chief Minister

01 Oct  2016 Photographs have emerged of Sinhala Buddhist protestors brandishing death threats to the Northern Province Chief Minister during a demonstration in Vavuniya this week. “We all need to live in peace or you rest in peace,” threatened one placard held by a protestor. Another read “Bin Ladan. Prabakaran. Now Vignashwaram (sic)." “Last episode will be televised soon,” it warned. Buddhist monks from the Sinhala nationalist group, Bodu Bala Sena led the protest against the mass Tamil rally that took place last weekend, Ezhuka Tamil. “If Vigneswaran carries on with his campaign, we will smash the head of this racist, venomous snakes,” BBS’s general secretary Galagoda Aththe Gnanasara told a cheering crowd. See more from JDS here.   Related Articles:  Buddhist monks protest against Ezhuka Tamil rally

Are Lacunae In Regulatory Oversight Permitting Tax Avoidance By Primary Dealers?

By Chandra Jayaratne –September 30, 2016 

Chandra Jayaratne

Dear Mr. President,

Are Lacunae in Regulatory Oversight Permitting Tax Avoidance By Primary Dealers?

You are well aware that as a consequence of the tax revenue to GDP ratio in Sri Lanka falling from around 20% in 1990 to around 10% in 2015 http://data.worldbank.org/indicator/GC.TAX.TOTL.GD.ZS?locations=LK) , the capacity of the State to fund;

1. essential infrastructure;

2. human development (especially investments in health, education and ICT sectors and in focused human capability development meeting tomorrows market needs);

3. research and promote innovation; and

4. specially targeted programmes aimed at alleviating poverty, removing inequity and lack of inclusiveness in society and aimed at bringing within the focus of development marginalized and vulnerable segments of society is severely restricted. In fact it is reported that Sri Lanka holds an adverse record amongst nation states, in that it has experienced the sharpest and longest impacting annual decline in tax revenue to GDP.

It is commonly believed that Administrative and Regulatory Oversight Lacunae may be the primary cause of the phenomenon experienced as reported above; and it is most likely that this lacunae is the primary reason leading to a significant drop in tax revenue ( both direct and indirect), customs duty, excise duty as a percentage of GDP.

As a specific single case in point, your kind attention is drawn to the Accounts of a Primary Dealer recently published in the news papers, in compliance with the applicable regulatory framework, a copy of which is enclosed. You will note that the Primary dealer in question, having declared in its accounts for the years ending on 31st March 2015 and 31st March 2016 respectively, trading profits before revaluation of trading securities of Rs. 713 million and of Rs 5,378 million, appears to have declared a NIL tax charge in respect of both years.

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What Sri Lanka Must Do to Become the Hub of the Indian Ocean

As the world’s economic centre of gravity shifts to the east, Sri Lanka is at the crossroads of the emerging world, sitting astride trade routes that connect the east and the west, Asia and Africa, and China and India.

Colombo port. Credit: Asian Development Bank/Flickr CC BY-NC-ND 2.0

BY DANIEL ALPHONSUS ON 30/09/2016

Leveraging Sri Lanka’s thrice-blessed position at the centre of the Indian Ocean, astride the main east-west sea route and at the gateway to South Asia – in other words becoming an Indian Ocean hub – has become something of a mantra for Sri Lanka’s chattering classes. This author is no exception.

Considering Sri Lanka’s post-independence failure to capitalise on this tripartite bounty, this is a long overdue step in the right direction. But identifying opportunities is easy. What inevitably follows – implementation – is harder. After all, at some point, agreements need to be signed, laws passed, organisations shaken-up and concrete poured. To borrow from the lexicon of the Ceylon chamber of commerce, these Indian Ocean hub ambitions have given it focus: what is left is to act and deliver.

A number of significant plans are already underway, but a comprehensive vision or coherent plan remains elusive. So here’s a stab at what a guiding strategy for such plan might look like.

The road to the hub lies through the gate

The Indian Ocean still does not have a nodal point for the transfer of goods and services, people and ideas. But as much as many on the island may dislike this truth, the success or failure of Sri Lanka’s hub plans is inextricably predicated on becoming the gateway to India. The reason is simple: India is by far the pre-eminent economic power in the Indian Ocean region. India accounts for approximately a third of Indian Ocean GDP, 60% of its population and is its engine of growth and is growing at 7.6% per year compared to the Indian Ocean average of 4.2%. India is also the fastest growing major market in the world, with GDP expanding at more than 7%. Therefore, just as the success of Hong Kong and Singapore depended on their being the primary gateways to China, Malaysia and Indonesia, if Sri Lanka wants to become the Indian Ocean’s hub then it must first become the gateway to India.

A further reason Sri Lanka’s hub plans depend on being a gateway is because India is the only major economy where Sri Lanka has a natural comparative advantage for providing hub services. Pakistan and Indonesia are already deeply integrated into Dubai and Singapore respectively. India’s most dynamic and reform-minded states being a stone’s through away is an added incentive – the five South Indian states account for a quarter of India’s national income and 8% of the entire Indian Ocean’s GDP. Moreover, India’s bureaucracy and lumbering pace of reform means that the small Sri Lanka can be nimble enough to compete with hub services like aviation, financial services, regional headquarters and energy – as it is already doing with its ports. The Colombo port alone transfers nearly half of India’s foreign transhipment. Once Sri Lanka is firmly positioned as the gateway to India, it will then be able to develop a cluster base of hub services. This will create the necessary scale and comparative advantage to establish itself as a hub for other Indian Ocean states and capture hub services market share from Dubai and Singapore.

Sri Lanka: the gateway to India

For the last century, the Gateway of India, built in Bombay in 1924, has been India’s symbolic point of engagement with the world. As we approach 2024, Sri Lanka has the last chance of becoming the 21st century’s de facto gateway to India.

In terms of regulation, signing the Economic and Technology Agreement, which will offer Sri Lanka deeper and faster access to the Indian market, is a sine qua non. But being an effective gateway does not just mean being the node through which the world engages with India, but also being the node through which India engages with the world. As a result, Sri Lanka will also have to aggressively pursue similar agreements with other key markets, including China and ASEAN. Applying the principle to the aviation sector, effectively becoming part of the ASEAN single aviation market by signing a Sri Lanka-ASEAN bilateral air services agreement based on the same conditions as the ASEAN single aviation market could strengthen Sri Lanka’s position as an aviation interface between South India and ASEAN. This bold step would also have significant positive spillovers for tourism, a critical driver of post-war growth.

But domestic regulatory reforms are needed too. First, hub services need to be opened up to competition and foreign investment. For example, the 49% bar for foreign ownership of logistics companies, which is preventing Sri Lanka from attracting world class logistics companies, their clients, technology and technical know-how, needs to go. Competitionneeds to be introduced in the aviation and energy sectors: ground-handling, terminal operation, catering and refuelling need to be opened for competition and public-private partnerships. Second, barriers at the border need to be overhauled: regulatory changes need to be taken up to make compliance with government regulation faster and simpler. But process re-engineering alone will not be enough. Sri Lankan policymakers will have to remember, as William Bernstein illustrates in A Splendid Exchange, that historically the success or failure of hubs depends on their commitment to freedom of movement and the rule of law: in particular the speed and sanctity with which contracts can be enforced and compliance with government regulation achieved. As such, significant regulatory changes will be needed to make movement of goods, services and people easier and faster; undergirded by a simple, fair and speedy justice system.

Munster’s map of the Indian Ocean with sri Lanka – Taprobana – prominently in the centre

Hanuman’s bridge: linking the hub to its hinterland

With the the rapidly expanding Colombo harbour, Port City, and revamping of the oil storage tanks at Trincomalee, Sri Lanka’s hub infrastructure is not in terrible shape. However, there are two major lacuna that need to be addressed.

The first is the long overdue second runway at Sri Lanka’s only operating international airport. As a hub-airport, at peak hours, Colombo’s sole runway is already at capacity. Also, in contrast to the port, which can handle the largest cargo vessels, the Bandaranaike Airport cannot handle A380 aircrafts. The feasibility studies for a second runway have long been complete; the challenge is to have the tenacity to address vested interests that could attempt to stall the project. For example, the Katunayake Air Force base, Sri Lanka’s largest air force base, will require relocation to Trincomalee or Hambantota.

The second and far more important piece of kit is one that will secure road and rail access to the Indian logistics system and supply chains. This requires the much discussed but little studied bridge across the shallow waters of the Palk Straits. Studies have tended to focus on the project’s engineering feasibility or approached the issue from a transportation angle. Two economic feasibility studies have been conducted by the Asian Development Bank (ADB) and Sri Lanka’s Board of Investment respectively. But they are not available in the public domain. The only public source known to the author that analyses the bridge’s economic potential is a groundbreaking paper written sixteen years ago in South Asian Survey.

The authors of the paper make the case that capacity limitations in Indian ports, combined with inefficient operations and Sri Lanka’s superior position adjacent to the main east-west shipping route, generates the opportunity for Sri Lanka to further entrench her position as India’s maritime gateway. Although Indian ports, particularly those in the south, no longer suffer from the capacity constraints they experienced nearly two decades ago, the paper’s fundamental intuition appears to remain sound.

Establishing a land-link between Sri Lanka and India could significantly increase the competitiveness of the Colombo port. First, it will reduce the time, cost and administration caused by the repeated loading and unloading of containers that is unavoidable in transhipment. Instead of containers unloading in Colombo, loading and reloading onto lorries for storage at a dry port reloading unto feeder vessels and unloading again at an Indian port, a land link will enable containers unloaded in Colombo to reach South Indian factories and consumers directly by road or rail. Considering Colombo’s efficiency, this will place Colombo at advantage vis-a-vis upcoming competitors like Colachel and Vizhinjam on the Coromandel and Malabar coasts respectively. It could also help capture long-haul market share from the Madras and Bangalore airports. After all Cochin, Tuticorin and Madurai are all closer to Colombo than they are to Madras or Bangalore. Not to mention an undoubtedly significant jump in Indian tourist arrivals who will now be able to experience the Ramayana Trail via an undoubtedly cheaper Ramanaya Train.

Second, although not strictly a hub service in the narrow sense of the word, such a land-link will enable Sri Lanka to kick-start integration into global-value chains by integrating into Indian supply chains. With just-in-time production being the norm, road and rail connectivity will be vital in securing contracts and in keeping costs at a minimum. In fact, it is not only economists who have understood the potential of economic integration with the powerhouse states of South India. For example, the late Lakshman Kadirgamar repeatedly emphasised the importance of “developing ties with the Southern Indian states of Tamil Nadu, Kerala, Karnataka and Andhra Pradesh.”

Third, although the feasibility of this idea post-Hambantota and the new Colombo breakwater need to be evaluated, it could also enable the development of the long unused Trincomalee harbour, described by a young midshipmen at the time, Horatio Nelson, as the “finest natural harbour in the world”. While raw port capacity in Colombo can still expand, expensive land and traffic increases Colombo’s costs. By contrast, land is readily available in sparsely populated Trincomalee. Madurai, the closest transport node to Dhanushkodi, is also 100 km closer to Trincomalee than Colombo. India targeted port development could also propel Trincomalee to become the gateway and hub port for the increasingly important Bay of Bengal, an essential element of any Indian Ocean hub ambitions. Making Trincomalee a container shipping centre will also catalyse plans to make it an energy hub and industrial zone.

Finally, such a bridge could be a unique opportunity for accessing capital. India has an interest in improving its logistical ability to trade and integrating Sri Lanka into its economy and sphere of influence, while China has an interest in making it easier to export its goods and services into India and securing contracts for its construction sector, which is experiencing over-capacity. As a result, the bridge and related infrastructure could be funded by a consortium headed by both the Japan and US-led ADB and the China-led Asian Infrastructure Investment Bank (AIIB) – especially because Sri Lanka maintains excellent relations with all the concerned states. Indirectly involving China via the AIIB may not perfectly palatable to New Delhi, but it would go a long way in defusing the Sri Lankan population’s concerns relating to the bridge. Considering the bridge’s importance to India, that is a price worth paying.

As competition is rapidly intensifying in the region, concrete steps need to be taken with haste. The need for action is all the more pressing because Sri Lanka is experiencing at historical geo-economic sweet spot. With the emergence of the China-Europe freight rail, localised manufacturing spurred by 3D printing and increased use of renewable energy, Sri Lanka’s geo-economic and geo-strategic relevance will wane. To borrow a term favoured by Chinese, this a period of strategic opportunity and Sri Lanka needs to leverage this locational advantage while it lasts.

Since there is a clear prima facie case that such a bridge could constitute a breakthrough for Sri Lanka’s development and hub ambitions, there is an urgent need for the government to take the next step and commission studies on the economic, strategic and technical opportunities and risks of the bridge. The Institute of Policy Studies, Lakshman Kadirgamar Institute and University of Moratuwa respectively come to mind as potential contractors; although open-bidding for research contracts could generate better value for taxpayers. As improving logistics systems, facilitating trade and plugging into value chains is as much in India’s interest as it is in Sri Lanka’s, perhaps the think-tanks could collaborate with Indian counterparts in conducting some aspects of the research. In the fashion of these terribly practical times, consulting the fiendishly practical Singaporeans, who manage their causeway to Malaysia with some panache, could address the fears of those worrying about border-control. Other examples of bridge management could be the Channel Tunnel and Øresund Bridge between Denmark and Sweden. On specific importance in overcoming domestic concerns relating to the bridge is ensuring that any agreements relating to border control address the asymmetrical size and capabilities of Sri Lanka and India. One could also hire contractors that have global experience in border control services to minimise any possible border control issues.

Further, in light of the precious time Sri Lanka has lost over the past four decades, the government should also consider reviving and containerising the Thalaimannar-Dhanushkodi ferry service as a matter of immediate priority. Although serving a bridge-like function, ferry services are much cheaper and faster to implement – granting an opportunity to test the bridge’s economic and security viability too.

To conclude, from the perspective of the longue durée, this is the right time to begin serious work on making Sri Lanka a hub – in fact we’re a couple of decades late to the party. As the world’s economic centre of gravity shifts to the east, Sri Lanka is at the crossroads of the emerging world, sitting astride trade routes that connect the east and the west, Asia and Africa, and China and India. If it wants to make the transition from first world to second, Sri Lanka has no choice but to return to the days when it was an open maritime nation – when its ports were open to the world and the ancient capitals of Anuradhapura and Polonnaruwa were polyglot, multinational metropoles where Buddhist and Hindu, Roman and Chinese, Arab and Malay all traded and transacted at the Sri Lanka’s Indian Ocean emporium.

The recipe for renaissance is just the same today. To become a hub again, Sri Lanka needs the freest, fastest and furthest-reaching possible movement of goods, services, capital, people and ideas. This freedom, especially in a closed and highly-regulated region, will rapidly make Sri Lanka an entrepôt that can compete with Singapore and Dubai. But as it looks out to the seas, Sri Lanka must first reconnect with its hinterland. Then the Indian Ocean will be its oyster.

Daniel Alphonsus worked at Sri Lanka’s foreign ministry and at Verité Research, a think-tank. The views expressed in the article are solely his own.