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8th August 1999

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Post Neelan debate: Action not words

By Jude L. Fernando

The death of Dr. Neelan Tiruchelvam is a great loss for the country in search for identity, peace and security. While the assassination has to be condemned and mourned, it raises many questions for the future. Perhaps, the best respect we can pay Dr. Tiruchelvam is to leave aside partisan political agendas and move forward with the peace process.

Dr. Tiruchelvam's assassination is not an isolated event. It is an integral part of a chain of events that respond to the country's decade long failure to find a settlement for it's ethnic crisis. We must realize that though a political killing is dramatic and compels attention, it is not an act that stands suspended in time.

It has antecedents and sets in motion a string of events and actions. There is much to be gained from treating the assassination as a price paid for a political failure, than simply an act of terror committed to commemorate Black July.

Why was Dr. Tiruchelvam gunned down Thursday July 29th?

The assassination also shows that the LTTE has not retreated from its claim to be the sole representatives of the Tamils. Anyone attempting to work towards a political settlement and thereby wresting the initiatives from the LTTE will be killed, and that is the LTTE's message. This includes even those who have been a part of the movement for a long time.

But if we are seeking a settlement, we have little to gain from sensationalizing the brutishness of the Tigers. We need to wrestle with more serious issues.

Are the LTTE demands endorsed by the majority of the Tamil community? We do not know. At most it is an untested hypothesis. The media representations of the life in 'liberated areas', and territorial gains by the military are by no means sufficient indicators of the exact nature of the relationship between the Tamils and the LTTE. Perhaps the best way to know this relationship is to ask the Tamil people themselves as to what they want instead of a majority of the Sinhalese trying to determine the future of the Tamil community.

This is true democracy. Unfortunately, Sri Lankan democracy is not mature enough to hold a referendum as in the case of Quebec province in Canada, where the Canadian government asked the citizens of Qubec to determine as to whether they want political autonomy or not.

While I think this as the most ideal and democratic way of dealing with the problem, it does not appear to be feasible in Sri Lanka given the political and demographic complexities of the problem.

Indeed, the PA government has done a great deal to create awareness among the Sinhala community about the problem. Today we could write and speak about the issue without fearing persecution.

But for some reason we do not move beyond the rhetoric. It appears that such freedom of expression is used as a cover or excuse to continue to exploit the ethnic issue to fulfill partisan political aspirations at the expense of the future well-being of the country. Simply put, the government is not willing to risk its chances of getting re-elected.

The LTTE uses any means, be it violence, deception, and political manoeuvring to reach their goals i.e. right of self determination of the Tamils, which it believes is a fundamental right.

The LTTE will continue to convince the Tamils both by force and by pointing to the history of Sri Lankan government's response to the ethnic conflict, that Tamils cannot expect justice from the PA government or any other Sinhala interest groups.

Successive Sinhala dominated political parties have recognized the need for a political settlement. But their actions only proved to be exploiting the ethnic issue to garner minority votes to further their partisan political agendas and not offer anything substantial to the minorities.

Assassinations during past three years have shown that the government security is not capable for providing security for 'moderate' civilians who would be willing to implement whatever settlement is offered by the Sinhalese to the Tamils.

Does this justify for the government to continue with the war? We need to come to terms with the reality of the war. The war has been going on for nearly twenty years. As far as the Government is concerned, the current military gains are insufficient to proceed with the political aspects of the settlement. The Military needs thousands of personnel and billions worth of resources to conduct its operations and to sustain its military campaign and its victories.

But the LTTE could continue fighting with fewer men and insignificant amount of resources, because a guerrilla war can be effectively conducted without significant physical control of territory.

Civilian cover is more appropriate for guerrilla warfare and prolonged military occupation among civilians will only make the government unpopular. In the long run military occupation will benefit the LTTE, as it will prove their claims about Sinhala domination of the Tamil people. And the fact is that however reformed and benevolent the Sri Lankan security forces might be, it is unlikely that the Tamils would ever call them 'our boys.'

Isn't it ironic that the government and some Sinhala interest groups, which represent the military push as an attempt to liberate the Tamils from the LTTE. (Interesting turn of events - perhaps the first time in the entire world history where once an enemy turned to be the liberator!).

The sensationalized and platitude-filled media continues to encourage such sentiments. But there is nothing novel in calling Dr. Tiruchelvam's killing as 'brutish' and 'inhumane'.

In any event, we are not certain as to what the Tamils, even those who are frustrated and despise the LTTE, feel about this government-led politico-military liberation struggle.

For Tamils the fact remains that the main opposition for a settlement comes from the majority Sinhala community. Let alone negotiating with the LTTE, the 'anti-package lobby' does not even want the package to be brought to the parliament. In this situation one should not be surprised if some Tamils silently wonder about a political settlement if the LTTE were crushed by the military.

If a sustainable military victory is not feasible and there are no possibilities of any group other than the LTTE representing the interests of the Tamils and administering the north and east, the most pragmatic step should be to negotiate with the LTTE. In order to do that the government need to have the correct mindset.

It cannot treat the LTTE as just a terrorist group or a bunch of misguided youth running around with guns, but a group that presents a serious challenge to the identity and security of the state.

Just as much as the thousands of youth died for the JVP for economic reasons, one could not entirely say that Tamil youth join the LTTE due to compulsion and not for their historical experience with the treatment by the Sri Lankan government of the Tamil community.

To think that the ability of the LTTE to recruit cadres and harness financial resources is mainly due to brute force and coercion is naive and counterproductive for a peaceful settlement. It is a historically conditioned ideological commitment.

For successful negotiations there should be parity of status between the two groups. The claims of the LTTE need to be taken seriously until a compromise is worked out. Such claims are not new to Sri Lanka.

However repelling it would be, the most pragmatic attitude should be to take the claim of the LTTE to be the representatives of Tamil people seriously and to seek the ways in which the representatives can be democratized and mainstreamed. This would be the most effective way of demilitarizing the movement.

So why not work with the LTTE? This is likely to restore some confidence among the Tamils of the possibility of seeking a settlement within a united country. After all Tamil families would expect a political settlement that involve the LTTE as the best tribute to their lost children as much as Eelam would be unacceptable for Sinhala families who sacrificed their sons to protect the "motherland".

The government's demand to give up weapons and the demand of Eelam as conditions for negotiations appear not only unreasonable, but also completely impractical in terms of reaching a settlement.

Such changes in the LTTE's agenda should be expected only after the negotiations. Because history has proved that conditional negotiations will result in nothing but further mistrust and obstacles between the two parties for a peaceful settlement. This is particularly the case in the Sri Lankan situation where there are no sufficient grounds for the Sinhala political parties and the Tamil community to trust each other, particularly the latter to trust the former.

If the United States can invite Yasar Arafat to the White House and Indonesian government can negotiate with the militants in East Timor and Mexican government can negotiate with the Zapatistas without serious preconditions, why cannot the Sri Lankan President do the same?

This is given that both parties are equally culpable for the situation in Sri Lanka. If there is mistrust between the two parties why not seek the assistance of a third party mediation?

I do not think it is necessary for the government to wait for approval from the UNP to initiate a dialogue with the LTTE. Any settlement should be negotiated with the LTTE, the other Tamil and Sinhala groups as parallel processes. Parliamentary debate should be the second phase, unless the LTTE representatives are invited to the parliament to participate in the debate.

This might eliminate the widespread dissatisfaction among the Tamil community of a settlement being imposed on by the government in which they have hardly any representation.

If the mistrust between the two groups is an obstacle then the government should invite a third party to mediate. Why should this be a problem if the government can depend on assistance of foreigners practically in all aspects of social development, why not involve them a matter so central and crucial?

At least for the sake or those who have sacrificed their lives and for the future well-being of the country let us try to be a little pragmatic in our search for a settlement. Perhaps that is the best way to make the death of Dr. Neelan Thiruchelvam meaningful and celebrate what he stood for.

Learning of equanimity in adversity

In the week following his brutal murder, Sri Lankans have mourned the loss of Neelan Tiruchelvam and the ideals he stood for. In this flashback interview given to Roshan Peiris of The Sunday Times in 1991, Neelan talked of his father and the values that shaped his life

Neelan on right with his father and brotherTo measure upto a person who is very demanding and exacting in his public life was one of my concerns in relation to my father, Murugesan Tiruchelvam.

Growing up in the shadow of such a person whose agility of mind, devotion to duty and capacity for work, was legendary, I wondered could I measure upto his standards?

For instance in his law practice he gave of his professional best, but I as a youngster found he was deeply emotional and personally concerned with the welfare of his clients, if they suffered injustice. He used all his legal skills, legal integrity to devise a remedy.

Though my father was deeply affectionate with us, it was my mother Punitham who was responsible for our upbringing and nurtured an interest in religion, humanism, history and music.

My father was secular, his interests were history and the law. He and his brother M. Rajendra, a civil servant read a lot and built up formidable libraries.

I used to listen to their intellectual talks at family gatherings which were like mini-seminars. There were always scholars and diplomats and others active in public life.

Ability to relate

When he was a Minister, I did accompany him on a few occasions on some of his tours and was deeply impressed by his ability to relate to people. He would switch from his elegantly tailored suits, to a spotless vershti. He moved with great ease and acceptance amongst ordinary people although he was never a candidate for elective office.

From 1973 to 1977, I worked as his junior. He was a very severe and demanding senior. He had a substantial amount of appellate and trial work. He specialized on questions of public law, and more specifically administrative remedies. He had a nimble mind and quick grasp of ideas. He was totally absorbed in his cases and in every sense a lawyer's lawyer, one whose judgement and knowledge of the law and legal acumen was valued by his colleagues.

He had this great capacity to persuade. In Courts his voice was soft and sometimes hardly audible, yet he commanded complete attention by the skill with which he marshalled his facts and presented his case on behalf of his clients. He had the capacity to think on his feet, and would suddenly change his legal strategy, much to the exasperation of his juniors.

While he was Solicitor General, his colleagues were Victor Tennekoon, Rajah Wanasundera, H. L. de Silva and V. S. A. Pullenayagam. They worked closely, and formed a formidable team in taking on the best in the unofficial Bar. In many a complex case on constitutional law and administrative law, they outdistanced the unofficial Bar.

One of my early impressions that remain with me was when I was five years old playing in the garden of our home in Station Road, Wellawatte.

Sir Allen Rose, then Attorney General (who was earlier Legal Secretary-my father had been Assistant Legal Secretary) would drive in in his large black Bentley and I would greet him bare bodied, "Rose mama has come." Rose had a close relationship with my father, and relied on his judgement.

My father always maintained an affectionate, though exacting relationship with his juniors, whom he normally addressed as 'Sonna'. He was supportive of their careers and encouraged them to take an interest in the study of current legal developments. In the Senate during late evening debates, he was often found reading the latest issue of the Modern Law Review. Even as a law officer of the state, he took every opportunity to speak, very seriously.

I recall the trouble he took to speak to a small YMCA gathering in Panadura on Administrative Law and kept the people spellbound for over two hours. He had brought with him copies of All England Law Reports and referred to the most recent judgements.

He was liberal in his outlook. My marriage was an unconventional one. Sithie, my wife, was in the same class with me at the Law Faculty.

I married her in 1969, a few months after I had been admitted to the Bar. I did not quite prepare my father for the event.

State of shock

I informed him on the 18th of February that I intended marrying her the next day. It was a civil ceremony held at my father's house at Rosmead Place. The Registrar was nervous when I asked him to come, wondering what sort of reception he would get from my father.

My father was initially in a state of shock but quickly adjusted. My mother as always, was very supportive and her usual ebullient self. Later my brother who is a surgeon, married a Christian, Junia Vyrasinghe, a family practitioner. My sister Janaki married a Buddhist, Jayantha Wanigatunge. We are a very pluralistic family.

Then there was Dinoris, our Buddhist chauffeur who was deeply attached to my father.

On Vesak day he decorated our house and lit it up with Vesak kudus, it was probably the best lit house down Rosmead Place, better, I think than the Bandaranaike residence!

My father had an impish sense of humour. During the 1976 Trial-at -Bar when Amirthalingam and three others were tried before three judges of the High Court, there was realization that the case could prove to be a political trial of far reaching constitutional importance.

My father decided that it would be important to retain G. G. Ponnambalam, who had retired from active practice.

My father had spoken to GG who agreed to appear for Amirthalingam. He however demanded a letter of instruction from an instructing attorney. He wanted it placed on record that his services had been sought by his bitterest political adversaries.

The FP leadership was in a quandary. They were nervous that GG would publicise the letter and steal a march on them. In the twinkle of an eye my father devised a solution. He summoned. R. Balasubramaniam who was instructing in the case to draft a letter. The letter read as follows:

"I have been instructed by my client A. Amirthalingam to retain you in the Trial- at- Bar case. Your senior Counsel would be Mr. S. J. V. Chelvanayakam, QC."

The letter was duly signed and sealed and I was entrusted with the unenviable task of delivering the letter to Mr. Ponnambalam. Mr. Ponnambalam received me with extreme courtesy. However, he read the letter, and exploded angrily.

Next morning, S.J.V. Chelvanayakam, who was technically senior to Ponnambalam, arrived in Court (stricken by Parkinson's disease), and stubbornly marked the name of 78 lawyers who appeared in the case. Ponnambalam had been out-manoeuvred, but he graciously appeared in the case, and performed brilliantly.

I learnt a great deal from my parents. I learnt from them the importance of equanimity in adversity, and to manifest a generosity of spirit when one is besieged by intolerance, bigotry and pettiness.

It is this attitude that has helped me to get so deeply engaged in so many legal, political and social issues and yet maintain a measure of detachment.

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