A lasting contribution

Neelan Tiruchelvam's assassination has not stopped the devolution package co-designed by him from working its way through the political process in Sri Lanka.

JEHAN PERERA

TIME and again, the Liberation Tigers of Tamil Eelam (LTTE) has shown itself to be capable of fighting, assassinating and bombing itself back to centre stage in Sri Lanka's politics. Six months ago, when an LTTE suicide bomber assassinated the Tamil Unit ed Liberation Front (TULF) lawmaker and think-tank Dr. Neelan Tiruchelvam (Frontline, August 27, 1999), it seemed that the organisation had succeeded once again in scuttling an emerging political solution that might exclude it. It was no secret th at Dr. Tiruchelvam was one of the two key persons behind the proposed constitutional reforms, better known as the "devolution package", the other being Constitutional Affairs Minister Prof. G.L. Peiris.

In July 1999, after nearly four years of fitful movement, there were signs that August 1999 would be a decisive month in which the government would present the new constitutional proposals before Parliament. Crucial to the presentation of the proposals w as the necessity of first generating a bi-partisan government-Opposition consensus on the changes. It was believed that behind the scenes, Dr. Tiruchelvam was urging the Opposition parties to support the proposals and make them into law. He had the force of intellect and the charm of personality to make a difference at this vital moment. It was at this moment that the LTTE struck in its trademark style.

But while Neelan Tiruchelvam's assassination may have delayed the political reform process by several months, it has not been killed. When a great debate arose in pre-Communist Russia about the efficacy of individual assassination, Lenin took a stand aga inst it. His own brother opposed him on the issue, got caught in an assassination attempt and was executed. Lenin mourned him as a comet that had burnt itself out in the night. Until the LTTE learns otherwise, the Tamil cause in Sri Lanka and the country itself will continue to suffer and not be at peace.

The LTTE has justified its protracted war against the Sri Lankan state on the ground that no viable alternative to Tamil Eelam has been put forward politically. The devolution package, which provides for the elimination of the unitary Constitution, would give ethnic regions considerable autonomy but not independence. The new constitutional design will give greater recognition to the plural character of Sri Lankan society in which ethnic regions will be entrusted with powers of self-governance. Perhaps b y assassinating him at the time it did, the LTTE believed that it had derailed a constitutional reform process that might put it on the defensive, if not exclude it entirely.

But the devolution package which Tiruchelvam co-designed is very much alive today. His assassination has not stopped the package from working its way through the political process. His loss is felt elsewhere. Despite fears that the government is divided within itself on the contents of the package, it appears that President Chandrika Kumaratunga's commitment to it is overcoming the obstacles within the government.

Late in January the co-architect of the devolution package, Constitutional Affairs Minister Peiris announced that the government would proceed on a process of political reforms. Gaining confidence from the Opposition United National Party's (UNP) sudden declaration that it would support the government's political initiative to end the conflict, Peiris spelt out the four-stage process as consisting of finalising the reform proposals within the ruling People's Alliance, followed by talks with the minority Tamil and Muslim parties, then with the UNP and finally with the LTTE itself. The political reform process has since reached its second stage, when the government began discussions with the Tamil parties.

In an ironic sense, it was perhaps the Tiruchelvam assassination that impressed upon the leadership of the two main political parties that the political challenge of the Tamil separatist cause had to be met politically rather than militarily. The near as sassination of the President in December 1999 may have further strengthened this resolve. As a person who was almost killed by the LTTE, the President has gained moral authority on the issue. Much to her credit, the President has not closed the door to n egotiations with the organisation that sought to kill her. Even those senior Ministers who oppose the devolution package are said to fall silent when she speaks the last word on the matter.

AMONG the many speakers at the Neelan Tiruchelvam commemoration events held in the first week of February, it was Albie Sachs of the South African Constitutional Court who made the most moving presentation. Delivering one of the inaugural addresses along with distinguished personalities such as former Indian Prime Minister I.K. Gujral and former Chief Justice P.N. Bhagwati, Justice Sachs was able to give what no one else could. Minus an arm, he shared his personal experience of being a victim of terrori sm and a target of assassins. A white man, he gave a glimpse of the great qualities of South African leadership across the black-white racial divide, as exemplified in the life of former South African President Nelson Mandela. This is a leadership that h as transformed bitter wounds and hate into reconciliation and love. Speaking to an audience bereaved by Tiruchelvam's assassination, Albie Sachs showed the way to understand the other who saw the truth in an opposite way, to reach out to the other who wa s poles apart and to transform hateful relationships.

The Neelan Tiruchelvam commemorative events brought together perhaps the largest number of internationally recognised intellectuals, civil society activists and academics ever to be seen in Sri Lanka. They all had some connection with the life and work o f the late Dr. Tiruchelvam even from unfamiliar corners of Africa such as Guinea, and large contingents from India and the United States, which included two former ambassadors.

Apart from the intellectuals there were also artists, including the renowned exponent of Indian classical dance, Alarmel Valli, whose commemoration of Tiruchelvam brought tears to the eyes of many in the audience, and musician Dr. M. Balamuralikrishna. T he intellectual and artistic excellence at the commemoration events contrasted strongly with the barrenness to which Tamil society, trapped in an endless war in Sri Lanka, has become doomed and which the loss of Tiruchelvam has made worse.

What was striking about the gathering was the genuine sense of loss at Tiruchelvam's death among so many of the distinguished participants. It seemed as if they had been personally touched by Tiruchelvam and diminished by his death. Perhaps it was Tiruch elvam's complete absence of intellectual or social arrogance and his accessibility at short notice to those who had even the slightest acquaintance with him. In Sri Lanka's hierarchical society, this attitude contrasted sharply with the inaccessibility a nd arrogance of many of those who wield power. Perhaps Tiruchelvam's loss is also felt more strongly because he had a way of making every one of his friends feel that he or she was special to him.

For all these reasons and more, Tiruchelvam's assassination will be remembered for a long time by many influential people all over the globe.

The head of the United Nations Human Rights Commission, Mary Robinson, a former President of Ireland, said that the human rights community could not let those responsible for such a murder go unpunished. The Rajiv Gandhi assassination in Tamil Nadu would be another example. As a result the LTTE's support base in India was lost forever, or at least for a very long time.

The question is whether the LTTE will learn and change. It is a great irony that having achieved so much on the military battlefield through enormous sacrifices, the LTTE should squander its investments by believing that acts of individual assassination can indeed alter the course of history.

TIRUCHELVAM'S loss is also felt at a second level, apart from the personal, and despite the forward movement of the devolution package. With his great learning and personal charm, Tiruchelvam could exert considerable influence on politicians when they we re teetering on the brink of going one way or the other. About two years ago, for instance, when the concepts of judicial independence were being challenged by government leaders, he organised an international symposium on the rule of law. One of the mai n issues at this symposium was the question of judicial review.

In Sri Lanka, on the other hand, the politicians have constantly tried to suppress the judiciary and dominate it. The 1972 and 1978 constitutions even took away the power of judicial review, which enables judges to strike down laws that are unconstitutio nal. Instead, they only gave the judiciary the power to strike down a proposed law before it was ratified by Parliament. But the problem with this highly restricted power of judicial intervention in modifying or correcting proposed laws is two-fold.

First, some proposed laws (bills) which the government claims are urgent have to be challenged within 24 hours. Secondly, it is often the case that problems with laws only emerge a few years after they are passed into law. The government's present consti tutional reform proposals, benefiting from Tiruchelvam's contribution, envisaged giving the judiciary a restricted power of judicial review. The proposed change would give the judiciary the power to decide on the validity of laws affecting fundamental ri ghts for a period of two years after they have been passed into law. While this two-year period of possible review, and restricting it to fundamental rights, is not at all adequate or comparable to that existing in other democratic countries, it is certa inly better than the existing situation.

But now disturbing reports have emerged that even these limited powers of judicial review might be knocked out of the proposed new constitution. One of the weaknesses in today's constitutional reform process is that it is being undertaken almost exclusiv ely by politicians. It is natural that politicians should wish to give themselves as much power and privilege as possible, to the exclusion of checks and balances. The doctrine of "executive convenience" seems to be their motto, as pointed out by Rohan E drisinha, a leading constitutional scholar of the country.

Neelan Tiruchelvam was an exception to this lust for control that exists among many politicians and his loss is felt for this reason among a host of others. He did not make his name or money through politics. He was an international figure owing to his w ork in the realm of human rights and as a lawyer of eminence. He was content to work behind the scenes. He was preoccupied with designing institutions and frameworks within which a multi-ethnic and plural society could be governed, efficiently and equita bly. It is only a Tiruchelvam who could have stood in the path of ambitious politicians and persuaded them in his inimitably non-confrontational and charming way that judicial review was indeed in the public interest, even if it was not in their interest .

Jehan Perera, who works with the National Peace Council of Sri Lanka, is a columnist for The Island newspaper published from Colombo.