About the Author

Patricia Hyndman taught for many years in the Faculty of Law at the University of New South Wales, in Sydney. She has also taught at the University of Manitoba, and at the University of Dalhousie. Her area of specialisation is in international human rights law. She has been a Fellow of Wolfson College Cambridge University since 1992, and was a Tutor in the College from 1994-1999.  For ten years she was the Secretary of the LAWASIA (The Law Association for Asia and the Pacific) Human Rights Committee; she was the Foundation Director, of the University of New South Wales Human Rights Centre from 1986-1990; and Foundation Member of the Editorial Board, International Journal of Refugee Law (O.U.P) (1988….). In the UK she was a Member of the Advisory Group, European Consultation on Refugees and Exiles (ECRE) from 1992-6; is a Member of the Advisory Board, of The International Centre for the Legal Protection of Human Rights (INTERIGHTS) (1992…..); and a Member of the Advisory Council of REFAID (London) (1999…)

Sri Lanka: Escalating Violence and Erosions Of Democracy:Patricia Hyndman, LAWASIA Human Rights Standing Committee, March 1985

During the last week of July 1983 a severe outbreak of communal violence in Sri Lanka saw hundreds of the minority Tamil community killed, thousands left injured and homeless and the systematic destruction of Tamil shops, houses and factories. Tamil civilians in the capital, Colombo, and in many different towns and villages were attacked in acts of mob violence perpetrated by sectors of the majority community, the Sinhalese, while the security forces significantly failed to provide the minority with adequate protection, and, in some cases, actively participated in the atrocities. At that time the world was shocked that such events should have taken place in a country widely regarded as one in which the rule of law prevailed and democratic traditions were prized.

In August 1983 the LAWASIA Human Rights Standing Committee sought, and was granted, government permission to send a fact-finding mission to enquire into the circumstances of this outbreak. After this visit a report was prepared which was presented to the LAWASIA Human Rights Committee, "The Communal Violence in Sri Lanka, July 1983".

Today the violence generated by the ethnic conflict between the majority (74%) Sinhalese, who are mainly Buddhist, and the minority (18.2%) Tamils, who are mainly Hindu, has escalated to alarming proportions. In view of the repidly deteriorating situation within Sri Lanka the LAWASIA Human Rights Standing Committee requested and received government permission for Ms Patricia Hyndman to return to the country to update her report.

The five day visit was made from February 17-22nd, 1985. Interviews were conducted with government members and officials, members of opposition parties and the T.U.L.F., lawyers, members of bodies such as the Sri Lanka Foundation, the International Centre for Ethnic Studies, the Civil Rights Movement and the Centre for Society and Religion, groups of concerned citizens, religious groups and members of trade unions.

To all of these people grateful thanks are expressed for their courtesy, co-operation and helpfulness This report is an interim appraisal based upon the information acquired from these interviews and from legal documents, press reports both local and international, material put out by various organisations and other documentation obtained both whilst in Sri Lanka and after leaving. The report is concerned with two inter-related phenomena, firstly the escalating violence and, secondly, erosions of democracy and the rule of law. A full report upon these matters is currently being prepared.

Since the writing of the report on the communal violence of July, 1983, the situation has deteriorated. Even though the current violence has so far been contained within the northern and eastern parts of the island, which is the area claimed by the Tamil militants for the separate state which they wish to establish, and where Tamils form a high proportion of the population, there is tension and insecurity throughout Sri Lanka, and people and positions are becoming more polarised.

The number of acts of violence being committed both by the Tamil militants on the one side, and the almost totally Sinhalese armed forces on the other, in which combatants and non-combatants from both Sinhalese and Tamil groups are being killed and injured is rapidly escalating. The All Party Conference, the negotiations between the government and other parties which commenced meetings in January 1984 in an attempt to find a peaceful solution, collapsed in acrimony, without any agreement having been reached, in December 1984.

The clear indications now are that the government has elected to pursue a military solution. The Minister for National Security, Mr Lalith Athulathmudali, and other government officials interviewed did acknowledge that a military solution cannot be the final resolution to the problem, and that ultimately a political solution must be reached, but they insist that before any further attempts at negotiation are made the militants must first be crushed.

So far, attempts made by the government to control the problem by strong legislative, administrative and military measures have not worked. In fact they have been counter-productive, having hardened Tamil resistance and turned formerly moderate Tamils, who originally were opposed to the idea of a separate state, to view separatism as the only way in which to guarantee their physical safety. It is important to look at the escalation of violence both from the perspective of the government and that of the Tamil minority, and from the outset it must be understood that not all Sinhalese citizens are anti-Tamil, and not all Tamils are anti-Sinhalese. In fact, during the masacres of July 1983 there were many acts of heroism by Sinhalese people who in many cases risked their own lives to save those of their Tamil friends and neighbours.

Nevertheless, there is a history of perceived discrimination in the eyes of both communities, each group seeing the other as being in possession of unfair privileges and advantages. ' Some of these perceptions are due more to misunderstandings and myths than to actual facts, some have real foundation.

The approach adopted by the Tamil community to achieve what it sees as its due measure of recognition in Sri Lankan society, was, for the first thirty years after Independence, which was granted by Britain in 1948, a peaceful one. The Tamils sought a federal arrangement within one united country, not a separate state, and did not resort to, or advocate, violence as a means of achieving this. Indeed, their response to the attacks of violence against them which erupted in 1958, 1977, 1981 and 1983 has been very restrained.

So also has been their response to repeated disappointments when concessions gained from negotiations with earlier governments failed to be given implementation. In the mid 1970s, disillusioned with the results achieved so far, and feeling that they were steadily losing ground, the Tamil political parties re- formed themselves as one party, the T.U.L.F., the Tamil United Liberation Front, which adopted separatism as one of its election platforms, although with the stated aim of achieving this through negotiation and not by force.

On this platform the T.U.L.F. gained all the seats in the northern part of the country, and became the major opposition party at the time of the last general election, in 1977. At about the same time a small group of Tamil youth declared their intention to establish a separate state and began to resort to violence. For the most part these acts of violence were not supported by the rest of the Tamil community, and they were not condoned by the Tamil Members of Parliament. Many Tamils, particularly those in the southern parts of the island, continued to be opposed to the idea of a separate state. The Tamil militants remained a very small group until very recently.

In the past couple of years, however, their numbers have risen and they are increasingly well armed and well trained. Despite denials from the Indian government, available evidence would seem to clearly indicate that this has been achieved, in part, with aid from the state of Tamil Nadu in Southern India, where a Tamil population of 50,000,000 people resides.

This connection with Tamil Nadu is of great concern to the Sinhalese who feel very outnumbered and, because of this, very unsure of their security within Sri Lanka. Aid is also provided to the Tamil militants by ex-patriate Tamil groups located in many different countries. In addition, the militants to-day receive greater sympathy, and often support, from the Tamil population within Sri Lanka, particularly from those people residing in the north and east.

Recently the acts of violence perpetrated by the militants in their bid to secure a separate state by force have escalated sharply. They have attacked police stations and armed patrols, killing and maiming hundreds of members of the security forces; they have destroyed bridges and railway tracks, blown up lorries, buses and trains; attacked both privately owned and state owned property, raided court houses, destroyed court records; attacked farming and fishing villages, and have summarily executed people from their own community whom they suspect to be informers, or whom they deem to be antisocial in some way, i.e. violating, for example by corruption, the standards which they feel should prevail in society.

Nevertheless, more and more Tamil people are coming to regard the militants as their only hope of salvation from the actions of a government which they increasingly see as brutal, racist and repressive. The measures taken by the government which have brought about these feelings have included: -

The enactment of harsh legislation, used almost exclusively against Tamils, permitting preventive detention of those suspected of having perpetrated, or having been connected with, an "unlawful activity", a concept which receives an extraordinarily wide and vague definition. Under this legislation detainees may be held for up to eighteen months without trial. The detainees often have been held incommunicado without access to lawyers and relatives, and in some cases have been tortured and even killed while in custody.

Mass arrests have been made from some areas in the north, of all the young Tamil males found there. The arrests are usually of those aged between 15 and 30, and are made on the ground that the race, age and sex of these young men makes it likely that they may be offenders.

Many, but not all, are released after questioning but sometimes the conditions of their detention have been reported to be inhumane. The security forces, unable to speak the language of the people of the regions to which they are sent, are fearful and hostile towards the Tamil population and, when unable to locate the militants who attack them, frequently carry out brutal reprisals - murder, rape, arson and looting - in retaliation upon unarmed civilians in the villages in the locality of the attacks. So far the severest penalty imposed for such depradations has been dismissal.

A Constitutional amendment enacted in August 1983 resulted in the removal from Parliament of the elected moderate Tamil representatives from the north, and effectively terminated their political participation in the affairs of government. There has been failure, despite frequently imposed censorship regulations, to control inflammatory racist propaganda against Tamils appearing in the press and even emanating from government sources.

At the end of November 1984, new emergency regulations were enacted declaring some areas in the north and east to be 'prohibited' or 'security' zones, resulting in the total disruption of normal civilian life. In the areas affected by these regulations continuation with employment has been made either extremely difficult or completely impossible. No person may be in a prohibited zone without a permit. Some public buildings, eg. hospitals and council offices, are in areas prohibited to access.

The entire coastline from Mullaitivu to Mannar, (later extended from Kudremalai Point to Kokkilai), has been declared a prohibited zone to a distance of a hundred metres inland from the beach and extending five miles out to sea. Thousands of families have been evacuated from the prohibited zones to camps, and the fishing industry is at a standstill. More than 20,000 families of the fishermen, and others dependent upon the industry, are left with no income. Within the security zones there is severe curtailment of all movement. No one may enter such a zone without authorisation, permits are required for the use of any form of transport - even bicycles. Travel, when authorised, is restricted to certain hours and specific routes.

Private buses are not operating, state buses operate only within strict limits. Long curfews, up to sixty-one hours at a time, have been imposed. Many essential sevices have ground to a halt, and there are grave shortages of food, fuel, medical and other supplies. The result is serious deprivation, hardship and suffering to the people in these regions, and an exodus each day of great numbers of Tamils fleeing across the Palk Straits to Southern India.

At the same time the colonisation programme, under which people are resettled in the areas rendered fertile by new irrigation schemes, is causing further unrest. Under this programme Sinhalese civilians from the southern parts of the island are being encouraged by the government to move to new settlements within and near to the borders of the north and east, the areas regarded by the Tamils as their "traditional homelands." Tamils see the relocation of large numbers of Sinhalese from the south into the areas where Tamils have formed a high proportion of the population as a deliberate plan to change the ethnic composition of those areas. Amidst other consequences this type of resettlement inevitably has the result of reducing the effectiveness of Tamil voting power within the regions.

The government approach, on the other hand, is that Sri Lanka is home to all Sri Lankans, that all should be free to live in any part of the island, and that the colonisation programmes give due recognition to the rights of all in that under them people are resettled in numbers proportionate to the ethnic composition of the entire island.

Whatever the merits of such a policy might be in other cicumstances, the inevitable result of its pursual at the present time, in the current climate of suspicion and distrust, would seem guaranteed to escalate the incidents of violence even further. In fact, in view of the mounting hostilities and tensions in these regions, the Sinhalese settlers are being trained in tactics of self-defence for their own protection and some have been provided with arms. The only hope now is for a relinquishment of the general strategy that each side has been pursuing: attainment of objectives by physical force.

Immediate resumption must be made of negotiations between the government and those who can represent the Tamil people. Essential elements must include a cessation of hostilities on both sides, the halting of the colonisation programme for the duration of the talks, and the return of the T.U.L.F. leaders from Southern India to participate in the negotiations from within Sri Lanka.

Account must be taken of the fears, clearly apparent amongst the Sinhalese, concerning their position as a minority in the region (they number only 12,000,000 in all, whereas, as already mentioned, twenty miles across the water in Southern India there are 50,000,000 additional Tamils), and of the very real fears of the Tamils in Sri Lanka both regarding their physical security and their inability to rely upon the implementation of promises made by succeeding Sinhala dominated governments.'

In addition to elaborating upon the factors described above the full report will also make reference to other matters of importance and concern to LAWASIA. These are the erosion of democratic values and the weakening of the rule of law which have taken place in Sri Lanka in recent years. In this section are included recent threats to the independence of the judiciary and the growing number of incidents which have tended to encourage lawlessness. In 1978 a new Constitution was promulgated by the present government establishing a Presidential-style system. This Constitution confers very wide executive powers on the President and places him beyond the jurisdiction of the courts while he holds office, a situation which clearly is open to abuse.

The general elections, due in 1983, were never held. Instead, in 1982 the Third and Fourth Amendments to the Constitution were enacted. The first of these enabling extension to be made to the term of office of the President, and the second enabling extension of the life of the Parliament, from six to twelve years, both by means of referenda. Thereby the necessity for general elections was avoided. In the result the terms of office of both the President and the Parliament were extended for a further six years, and the government maintained its massive majority in Parliament (140 out of 168 seats) by a vote of 54.6%.

The referendum to extend the life of the Parliament was held under strictures which severely hampered the opposition campaign. Some opposition politicians were detained under emergency regulations, some had been stripped of their civic rights, some opposition papers were banned and some opposition presses were sealed, while the polling itself was marred by the harrassment of electoral officers, candidates and voters.

In August 1983 the Constitution was amended again, this time by the passage of the Sixth Amendment which had the effect of removing the elected representatives of the Tamil people of the northern region, and the official opposition party, the T.U.L.F., from Parliament. From time to time opposition parties have been proscribed and some of their members imprisoned. Sometimes these detainees have, for periods, been held incommunicado, without access to either lawyers or relatives, amidst government allegations of the parties' complicity in various suspected plots. So far no substantive evidence has been produced to substantiate such allegations, and no charges have been laid.

The present government has enacted both permanent preventive detention legislation and temporary emergency legislation (in force during proclaimed emergencies only), some of the terms and utilisation of which bring Sri Lanka, a signatory to the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, into conflict with her obligations under international law.

Further, despite repeated calls by international and regional human rights bodies independent, official and public enquiries have not yet been instituted:

1. into the causes and persons responsible for the July 1983 disturbances,
2. into the deaths of fifty-three Tamil political detainees who were massacred in July 1983 in Welikade prison, a top security gaol, and into the deaths of other detainees killed while held in the custody of the state, and
3. into the incidents, both in July 1983 and since, in which the security forces have been alleged to have attacked and murdered unarmed civilians and to have committed other acts of violence upon them and their property, and there has been failure to identify, and punish by the application to them of the normal criminal law, the people responsible for these atrocities.

The tragedy of the present situation of erosion of democratic values, weakening of the authority of the rule of law, perpetration of violence, and provocation of racial antagonism is highlighted when seen against the background of the country's exceptional assets.

Whereas it has been necessary to note some areas where government action has made severe inroads upon the principles of democracy and the rule of law, it is also the case that the present government has taken several steps which indicate a substantial commitment to the protection of human rights. Under its leadership Sri Lanka, in 1980, acceded to the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. She also made a declaration under Article 41 of the latter recognising the Human Rights Committee as competent to hear inter-state complaints of violations, although so far there has not been ratification of the Optional Protocol which allows individual complaints. This would be desirable.

In 1982 the government acceded to the International Convention on the Elimination of all Forms of Racial Discrimination and the International Convention on the Suppression and Punishment of the Crime of Apartheid. Furthermore, the 1978 Constitution, promulgated by the present government, contains a more comprehensive chapter on fundamental rights than did the 1972 Constitution which it replaced, although unfortunately Article 15 allows for restrictions to be placed on many of the protected rights. Importantly, Article 126 makes provision for the judicial enforcement of these protected rights, and is not uncommonly invoked but, again unfortunately, the effectiveness of the protection afforded by this provision is restricted, in its case, by its limiting time constraints.

Another significant step which this government has taken and which has the potential to be of great value is the support it has given to the Human Rights Centre of the Sri Lanka Foundation. This organisation undertakes promotional and educational activities. While a protection role would also be desirable, within its confines the activities of the Centre have been beneficial. For instance, one of the achievements has been the creation and introduction of programmes within schools to propagate knowledge of the international human rights covenents.

Also encouraging is the continued and active presence of a number of effective and independent non-governmental organisations, for example, the Civil Rights Movement, the Centre for Society and Religion, the Movement for Inter-Racial Justice and Equality and other, similar, groups. Such bodies, to the embarrassment of this and previous adminstrations, publicly express clear criticism of alleged government actions which threaten to breach the fundamental rights of the citizens.

Regarding the problem of Tamil grievances, from the outset the president expressed a willingness and a desire to deal with these, and encouraged Tamil participation in the process of government. In the new Constitution Tamil was given the status of a national language, and, in 1980, District Development Councils were set up, designed to provide a measure of regional autonomy. The purpose behind both innovations was to give recognition and effect to Tamil aspirations. These were commendable steps and it is regrettable that the manner of their implementation has resulted in a failure to achieve their aims.

Turning to other aspects of the Sri Lanka situation, while the per capita income of the country is low, Sri Lanka possesses the essential resources to be successful. The population is highly literate (there is a more than 85% literacy rate amongst adults), life expectancy is 69 years at birth, and there is a low infant mortality rate (37.7 per thousand).

Sri Lanka has a long-established civilisation, a rich and varied culture, a tradition of democratic government and freedom of speech, respect for the rule of law, and, the present problems notwithstanding, a charming, friendly and overwhelmingly hospitable people. In addition to all of this Sri Lanka enjoys a good climate and physically is truly a tropical paradise. The country is remarkably beautiful with glorious palm-fringed beaches, large areas of forests, fertile lands, abundant farming and fishing, productive plantations, many historical monuments of great interest and antiquity, attractive villages, and cool and majestic mountain areas.

Much of her quality of life and many of her assets and the achievements of which she can be justifiably proud are now under threat. The government must bear the major part of the responsibility for the trends which recently have eroded the democratic system and shaken the authority of the rule of law. With regard to the escalating violence it is in the interest of all Sri Lankans to look beyond coercive strategies as the primary means of achieving their objectives and to adopt a full commitment to genuine dialogue. This is not a nebulous and idealistic recommendation made with no reference to reality. From conversations with individuals from both communities it seems that amongst the ordinary citizens there is a willingness to try to understand and a sincere desire to achieve a solution to the ethnic conflict through moderation and compromise.

In fact a number of bodies, committees of concerned citizens and religious groups, have been taking steps to re-establish dialogue and trust between the Tamils and Sinhalese, and have set up some excellent programmes in their endeavour to achieve this aim.

Capital must be made of this willingness, enterprise, interest and commitment. Here the government has the obligation to take the lead and to set the stage upon which these incentives may be made effective, to open the door to renewed dialogue and negotiation, both at the political level, and amongst the general population. The alternative will be overwhelming tragedy.