Falconer/Gunasegaram Biography Page 43

Ambika Satkunanathan is Chairperson of the Neelan Tiruchelvam Trust and Vice Chairperson of Urgent Action Fund Asia & Pacific, a regional feminist grant making organisation. Ambika holds a Master of Laws (Human Rights) degree from the University of Nottingham, where she was a Chevening Scholar, and has earned bachelor’s degrees (LL.B / B.A) from Monash University, Australia.

In Sri Lanka, for decades, the state has been abusing power and violating the rights of its citizens with impunity, often in the guise of protecting the country and citizens from terrorism. In practice, such state action has created deep insecurity for the population and only strengthened the power of the state to protect itself from being held accountable. Hence, whenever a law is drafted, the first question every citizen should ask is, how can this law be abused and how can we ensure strong human rights protections to prevent violations?

The Anti Terrorism Bill gazetted on 22 March 2023, reproduces large parts of the draft counter-terrorism law formulated by the Yahapalana government. The seeming protections include the affirmation of basic due process rights, i.e. being issued a document notifying arrest, women being searched by women police officers, access to translations and being produced before a magistrate every 14 days when detained under a detention order (DO). But are these safeguards adequate to protect constitutionally guaranteed fundamental rights? Are they enough to prevent the continuation of decades-long abuse by successive governments under the guise of countering terrorism?

Due to the limitation of space, this article contains only a summary of concerns regarding the proposed law. A detailed analysis will be posted online.

In the absence of an internationally agreed upon, UN convention-based definition of terrorism, there are three elements which are internationally accepted as required to be cumulatively present for an act to be considered a terrorist offence. The definition in the Bill does not adhere to this standard. The three elements are:

An act would therefore have to contain all three elements to fall within the scope of the definition of terrorism. This means that not all acts that are crimes under national law or even international law would constitute terrorist offences. Moreover, not only does the definition of terrorism have to be precise but it must also adhere to the principles of necessity, proportionality and legality. To the contrary, the definition in the Anti-Terrorism Bill is broad and contains undefined elements, such as acts ‘violating territorial integrity or infringement of sovereignty of Sri Lanka or any other sovereign country’. This is concerning give that in the Sri Lankan context, historically, even advocating for certain constitutional arrangements, such as federalism, has been construed and labelled as causing harm to the territorial integrity and sovereignty of Sri Lanka.

The Bill reproduces the section in the International Covenant on Civil and Political Rights (ICCPR) Act that criminalizes hate speech and incitement of violence against certain groups, and thereby elevates these acts from a normal criminal offence to an offence of terrorism. This section in the ICCPR, which was intended to protect civic rights, has repeatedly been weaponized by successive governments to violate civic rights and imprison dissenters and writers, such as Shakthika Sathkumara and Ahnaf Jazeem, while no action has been taken against those inciting violence against specific communities, such as Gnanasara Thero of the Bodu Bala Sena.

In line with the 2018 Supreme Court determination on the Counter Terrorism Bill, the Anti Terrorism Bill has included the death sentence as the penalty for murder. Furthermore, the Bill states that when a person is sentenced to death and appeals the sentence, the sentence of death shall not be executed until the appeal is concluded. The drafters appear to be unaware that a moratorium on the implementation of the death penalty has existed in Sri Lanka since 1976. Furthermore, last month the Attorney-General provided an undertaking in the Supreme Court that the President would not implement the death penalty.

The Anti-Terrorism Bill, like the previous Counter Terrorism Bill, gives wide law enforcement powers to members of the armed forces, including to prevent offences from being committed. For instance, a military officer has the power to arrest a person if he has “reasonable grounds to believe (a person) has committed an offence”. Considering the violations that have been committed under the Prevention of Terrorism Act for decades, this can be interpreted broadly and used to arrest people with no evidence and without following due process. This is of particular concern given the pattern of arrests where persons are arrested prior to investigations being conducted or evidence gathered to ascertain whether there are reasonable and adequate grounds to arrest.

The involvement of the military contravenes best principles on policing, further militarizes law enforcement and creates a de facto state of emergency. The armed forces do not have to handover the arrested person to the police immediately or even as soon as possible after arrest but are given twenty-four hours to do so. This creates room for abuses since the military is not trained in law enforcement, uses violence as a first response rather than last resort, and historically has been documented to have committed grave human rights violations.

The Bill grants the power to any member of the armed forces or coast guard to search any person, vehicle, vessel or train or any premises or land without any prior authorization, warrant or oversight, which can lead to the abuse of power. Similarly, it allows members of the armed forces to take any document or article into custody.

A detention order (DO) can be issued by a Deputy Inspector General (DIG) of police for a maximum period of one year. When the detention period is concluded, the person can be sent to remand custody for possibly a period of one year. The DO therefore acts as a trigger for a continued period of detention. Hence, it is deeply concerning that an officer at the level of DIG is bestowed the power to issue a DO, which could possibly result in a person’s detention for an extended period.

When a DO is placed before a magistrate, the magistrate is only required to ‘make an order to give effect to such Detention Order’. The magistrate’s oversight function to examine the need for and lawfulness of the order is removed, and the magistrate becomes a rubber-stamping mechanism instead of functioning as an oversight mechanism. There are several other provisions that similarly give the appearance of oversight by the magistrate, whereas the power lies with the police. For example, the magistrate can discharge a person only if the Officer-in- Charge of the police station requests it on any ground that the magistrate is satisfied.

The proposed law therefore requires the magistrate to decide only whether the person can be discharged on the grounds put forward by the police. The Bill thus requires the magistrate to act as a check on the police to determine whether the police is requesting the release of a person who should be detained. The magistrate therefore does not act as a check on whether the police is detaining a person who should not be detained. In instances the police request the continued detention of a person, even where ‘there are no reasons to believe’ the person ‘committed an offence under this Act’, the magistrate is not empowered to discharge the person, but can only release the person on bail. This illustrates that in the proposed law, the opinion of the police override the opinion of the magistrate, which is an usurpation of the power of the magistrate.

The Bill contains sections which enable the police to take the person from remand custody in prison back into police custody via a detention order if they ‘receive information’, which they ‘believe to be true’ that the person is committing or planning to commit an offence or escape. Since most violations under the Prevention of Terrorism Act (PTA), such as torture, have been recorded in police custody and not in prison, the transfer of a person back to police custody can make the person vulnerable to abuse. Similarly, the section in the PTA that allows the Secretary, Defence to decide on the place of detention even after a person has been remanded has been retained in the proposed law. It should be noted that in the past gross violations have been recorded when persons have been detained in this manner.

There seems to be an insidious attempt to undermine the powers of the Human Rights Commission of Sri Lanka (HRCSL) by establishing a parallel institution (Independent Review Panel -IRP) to receive and inquire into complaints of alleged violations of fundamental rights that take place during the implementation of the proposed law. Receiving and inquiring into alleged violations of fundamental rights is a core function of HRCSL and hence raises questions how the IRP will function vis-à-vis the HRCSL. For instance, what happens if both institutions receive the same complaint? Moreover, the Bill does not state what action the IRP is empowered to take after receiving the complaint, or the remedies it can provide. The clause that requires the IRP to maintain strict confidentiality about the complaints they receive appears more of a gag order to prevent information about the alleged violations being made public, and thereby protect perpetrators rather than concern for the privacy or safety of the complainants.

The Bill requires the notification of arrest to the Human Rights Commission of Sri Lanka within 72 hours from ‘the commencement of detention’. Whereas, the Human Rights Commission Act requires notification to be done within 48 hours ‘from the time of arrest or detention’.

The oversight bodies established by the proposed law, i.e. the Board of Review, which is chaired by the Secretary, Ministry of Defence and the Independent Review Panel, which is appointed by the President are not independent, and hence not fit for purpose, as they cannot function as a check on the abuse of power by the police.

The Bill empowers the President to proscribe organisations on the recommendation of IGP or the government if the President ‘has reasonable grounds to believe’ the organization is engaged in an act amounting to an offence under the proposed law or in ‘’an unlawful manner prejudicial to the national security of Sri Lanka’. The proscription imposes prohibitions on recruiting members to conducting meetings and programmes. It is issued for one year and can be extended by a year, ad infinitum. There is no transparent process or objective criteria stipulated for such proscription, nor for evidence to be presented, at least for the renewal of proscription. The appeal against the decision is to be made to the very person who made order and there are no mechanisms to enable transparency of the appeal process. The only remedy is to appeal to the Court of Appeal.

Additionally, the President is granted the power to declare any place a ‘prohibited place’ on recommendation of IGP or any of the tri force commanders. There are no checks on this power and no time limit on the period for which a place can continue to be declared a prohibited place. Extremely problematic is that after the order is made, the officer in charge or ‘any other person having lawful authority and control over the Prohibited Place’ has the power to specify the categories of persons who are authorized to enter and remain in the place, as well as impose conditions on entry. It is hence possible that a public space used for protest, such as Galle Face, can be declared a prohibited place and the officer in charge can make on the spot, spur of the moment, arbitrary decisions, that are not subject to any oversight on who is able to enter the space.

There are provisions that grant the President the power to issue regulations to implement rehabilitation programmes for persons regarding whom the Attorney-General has recommended a deferment or suspension of criminal action. This is concerning given the history of abuses committed during such rehabilitation processes and the pattern of coercing people to ‘agree’ to rehabilitation when the state does not have enough evidence to initiate criminal proceedings against them.

In a landmark case last month, the Vavuniya High Court ordered the army to produce three LTTE members who had surrendered to the military in May 2019 and have been missing ever since, in response to a habeas corpus case filed by their wives.

The judge said he believed the women’s testimony that they had handed their husbands over to the military and said that if the army failed to produce them, it must explain the circumstances in which the men had disappeared.

Writ of habeas corpus is a remedy available to compel the body of a person who is illegally or improperly held in public or private custody and to discharge or deal with such person according to law. The Army Commander, the Commander of the 58th Brigade and the Commanding Officer of the Mullaitivu Army Camp were cited as respondents in the petition.

The applications were filed in the High Court of Vavuniya, which directed the Magistrate Court of Mullaitivu within which jurisdiction the incident happened, to hold an inquiry and file a report. It took nine years for the inquiry to be concluded.

The women described the panic and confusion during the last days of the war when they fled to escape shelling and bombing. When they reached military controlled territory, there were announcements that anyone who had been in the LTTE should surrender and that they would be released after an inquiry. The women encouraged had their husbands to surrender. They said that it was the last time they had seen their husbands, who were put into CTB buses by military personnel and taken away.

Major General Chanakya Gunawardena, the Commanding Officer of the 58th Brigade, was called by the Attorney General to give evidence on behalf of the army. He denied that any person was arrested or detained but during cross examination admitted that people had surrendered to the army on 17, 18 and 19 May, 2009 and that military personnel had a register of those who had surrendered. However, Major General Gunawardena failed to produce the register in court but brought the register complied by the Commissioner General of Rehabilitation instead.

The judge said that the court was satisfied by the evidence that the three men had surrendered to the army and that the army was accountable to produce them. The army was ordered to produce the men in court on March 22.

A similar ruling was given in December last year when the Vavuniya High Court ordered the army to produce a person who was handed over to the armed forces in Mullaitivu by his family members during the final stage of the war.

If the army failed to produce the person in court, the court said it should explain the circumstances surrounding his disappearance, adding that the burden of proof lay with the army.

The judge noted that the court believed that the disappeared person was in the custody and control of armed forces after a witness testifying on behalf of the army admitted to a register that documented those who had surrendered on that day but failed to produce the register to court.

One of the three women who filed the habeas corpus writ was Ananthy Sasitharan whose husband Elilan, an LTTE fighter, disappeared after she encouraged him to surrender to the security forces that day, fully confident he would return to her. When he did not, she started looking for him and hasn’t stopped. Ananthy took her case to the UN in Geneva and also launched an unsuccessful bid to enter parliament on a platform of accountability for war crimes.

Ananthy answered questions on the importance of the court decision and her continuing struggle for justice:

How important is the court decision asking the military to produce your husband?

On May 18, 2009, in a place where thousands were gathered, I surrendered my husband, unarmed, to the military. I appealed to the ICRC, Human Rights Council, rehabilitation ministers, the president and prime minister. In 2009 itself, I appealed to the UN forum as well. No answers. In 2013, a habeas corpus writ was filed in the Vavuniya High Court. As the surrender took place within Mullaitivu jurisdiction, it was taken up in the Mullaitivu District Court. During this time I the target of many threats by the military and the military intelligence. On my way to courts the intelligence officers would follow my vehicle, conducting surveillance in a threatening manner and inciting fights against me using ex-militants and militants’ wives. Despite this, I continued to appear for all the case hearings. The resolution to my habeas corpus petition has come at the Vavuniya High Court.

This gives me hope and courage. I have received a resolution for all the hardship, suffering and humiliation I underwent. My mind is now relaxed. The hope that justice will win has arisen. It is a strong motivation to continue the struggle with more confidence and strength.

After surrendering my husband up for surrender on May 18, 2009 on the meagre salary of a civil servant, I was a woman who had to struggle financially and psychologically in many ways to raise my children, educate them, and keep them safe. I took my three children by bus to Colombo for the first time in 2011, met the lawyer Mr. K.S. Ratnavale and appealed to him to investigate the surrender of my husband and file a habeas corpus petition. Mr. Ratnavale said this case is very dangerous and suggested that instead of getting involved alone, I should get a few others to join to file the case. He said I would not have to pay. In 2011 I met many wives and mothers of combatants in Kilinochchi and Jaffna. I met about 25 of them. Out of them four agreed to file the case with me. We then started the process of filing the case. Many wives of those who had surrendered were not in agreement with filing the case. They refused saying that their lives and the lives of their children would be under threat, that the government would take revenge on them and that their children’s futures would be affected. This verdict is a tribute to others fighting for the disappeared. There are thousands of them; the rest should come forward to file cases. Now we will have to wait patiently and see what will emerge from the defence.

Since 2014, I have been demanding justice. I have addressed the Human Rights Council 15 times. In 2014 and 2015 the international community listened to our views, especially countries such as the US, Britain and Switzerland who listened to my voice as a witness in the war. But nothing has happened so we are demanding an international investigation. Resolution 30/1 mentioned a hybrid mechanism. Then the weak resolutions became diluted. After the regime changed in 2019, everything changed. However, my journey to seek justice continues. There is still a need to fight. The countries of the world think in terms of their own interests so human rights are not protected. Human rights are only used as a tool to manipulate the weak. Although 13 years have passed and hundreds of thousands of Tamils have been killed, what can I say about the UN Assembly that has failed to recognise that what happened to the Tamils who were bombarded with banned poisonous gas and cluster bombs was genocide?

Even if time passes there is hope that we will get justice. The sacrifice of thousands of heroes who laid down their noble lives in the pursuit of freedom will not be in vain. We will fight for justice. Virtue will win.

Shankari Chandran is a Tamil-Australian lawyer and the author of three books: Song of the Sun God (Perera-Hussein Publishing, 2017), The Barrier (Pan Macmillan Australia, 2017) and Chai Time at Cinnamon Gardens (Ultimo Press, 2022). She is the deputy chair of Writing NSW and a member of the Sweatshop Literacy Movement.

THE JAFFNA PUBLIC Library sits in the ancestral capital of the Tamil people of Sri Lanka (also known as Yalpanam). It was built in the 1950s and housed one of the largest archives of Tamil culture in the world. At the height of its collection, it contained almost 100,000 books and historical records about the Tamil civilisation and our presence in Sri Lanka.

It held sacred Hindu texts, old maps, ancient verses etched into palm leaves, fragile scrolls about Ayurvedic medicine, the manuscripts of Tamil writers and intellectuals, the journals of early Christian missionaries and old newspapers.

It was a place of almost mythical cultural significance to the Tamil people. I’ve described it in my first novel, Song of the Sun God, this way:

The library was not just for Tamils, it was for everyone. The people were so proud: the library contained not only their history but also their communal memory. It represented how far they had come and gave them hope for how far they would go.

In 1981, the Jaffna Public Library was burnt to the ground by Sri Lankan government security forces. The entirety of its books and records were destroyed. Some have been lost forever, and others – such as the cherished original manuscript of the Yalpana Vaipava Malai (a history of Jaffna written in 1736 by the Tamil poet Mayilvagana Pulavar) – exist only as copies now.

As an archive, the Jaffna Public Library told a story about the place of the Tamil people in Sri Lanka. The political authorities of the 1980s wanted to suppress that narrative – and burning the archive was a quick and conclusive way to do it. For many Tamils, the burning of these books was the most overt act of cultural erasure in Sri Lanka’s post-independence history. This biblioclasm was the culmination of decades of laws that had disempowered the Tamil people, and it foreshadowed the war that would come two years later.

That war led to the internal displacement of hundreds of thousands of Tamil people and the forced migration of Tamils to many parts of the world – for my family, to Australia.

I was born and raised in the Tamil diaspora, my parents afraid to return to Sri Lanka for many decades because of my father’s political activism. We moved to London first and to Australia in 1977, a few years after the end of its White Australia policy in 1973. In Sri Lanka, my parents’ mother tongue, Tamil, had been a barrier to education and employment; in Sydney, my trilingual parents chose to speak to us only in English. Because of this, I have limited access to my ancestral language and its 2,000-year recorded history of literature and poetry.

Here in Australia, immersed and enmeshed in English, when I hear Tamil spoken, I can sense my parents’ language but can’t speak it. If I allow myself to think about the loss, I am overwhelmed by grief – a yearning for completeness, for someone whole that I’ll never be.

Bereft of a language, of a homeland, when the Jaffna Public Library was burnt I became bereft of a history – an archive of the past that justified my journey to where I was in the present. This cultural erasure that took place in a small corner of a small island, far away from our new home in Australia, consumed some of the bonds that tethered us to our past. It reminded us how vulnerable our place was in our ancestral home, at a time when we still hadn’t anchored ourselves to our new one. How to reckon with that fact, and in a new landscape? When language, land and history are taken from us, what do we have left but the stories we tell ourselves, about ourselves?

I am a writer, a storyteller. I have travelled to Sri Lanka many times over the past five years. I have travelled to the former war zone and been privileged to interview survivors of the genocide as well as journalists, activists and lawyers who risk their lives to talk about what happened there and demand that it does not happen again. I incorporate their experiences, their memories, their observations into my work as a novelist.

But fiction does not create justice. When a country emerges from war, it is only the mechanisms of justice that can create justice – the international bodies and courts, the laws and lawmakers, the governments and the people who vote for them. Nor does war fiction provide any comfort to the survivors. The dead are still dead; the living will always mourn them. The living will carry the trauma of war, injustice and loss forever.

What fiction can do is create another space for the truth-telling that is essential to post-conflict reconciliation. It can create a space, particularly when a country is unwilling to do this itself, when political authority undermines, delays or ignores the mechanisms of justice that should provide that safe space.

ON 18 MAY 2009, Sri Lanka’s decades-long civil war ended on a small strip of beach near Mullivaikkal at the far north-east of the island. During the last months of the war, it is believed that between 40,000 to 70,000 Tamil people died (some estimates are as high as 100,000) – mostly unarmed non-combatants. They were shelled by the Sri Lanka Army, their country’s own defence force, who purported to be rescuing them. They were used as human shields by the Liberation Tigers of Tamil Eelam, the ‘Tamil Tigers’, who purported to be defending them, and were trapped and then crushed in the middle of a conflict that had long since left the constraints of morality and the fiction of international law behind. These people were mothers, fathers, sisters, brothers, children. Many disappeared, their bodies never found. All of them were loved.

A few months before the war’s end, all international NGOs and journalists had been ordered to leave Sri Lanka’s war zone for their own safety. The Sri Lankan government promised that its military strategy adhered to a zero civilian casualty policy, designating no fire zones within the war zone and asking Tamil civilians to take shelter in these safe havens. I also described conditions in one of these zones in Song of the Sun God:

There were over 150,000 refugees in the no fire zone. The entire population depended on the UN to eat. Farming and fishing had long since ended. The monthly UN food ration for April was enough for 60,000 people for two days. April had thirty days… [All around] people starved and shrivelled.

What would happen next was revealed through the mobile-phone footage civilians took of bombs falling on the no fire zones; the mobile-phone footage Sri Lankan soldiers took of prisoner executions and the desecration of bodies; the testimony from survivors of torture, rape and mass killings; and the testimony that the no fire zones were the deliberate targets of the Sri Lanka Army, not collateral damage.

This was the outcome of colonisation, dispossession and seven decades of cultural erasure, of discriminatory education and employment policies, of state-sponsored killings and the struggle for self-determination.

As the 2011 report of the United Nations Secretary-General’s Panel of Experts on Accountability in Sri Lanka found, ‘The panel’s determination of credible allegations reveals a very different version of the final stages of the war than that maintained to this day by the government of Sri Lanka.’

When a 2014 UN Human Rights Council resolution (RES/25/1) requested the UN High Commissioner for Human Rights ‘undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka’, the resolution was dismissed by the Sri Lankan government as ‘foreign interference’. However, in 2015 the government changed and the new political authority co-sponsored a UN resolution (RES/30/1) and committed to a process of transitional justice intended to lead the country towards reconciliation.

The International Center for Transitional Justice describes ‘transitional justice’ as referring to ‘the ways countries emerging from periods of conflict and repression address large-scale or systematic human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response’.

According to Sri Lanka’s Centre for Policy Alternatives, transitional justice has many elements, including structural reform (both institutional and legal), redress and reparations for victims, and accountability for war crimes. Its elements work interdependently towards reconciliation between parties, after deep injustices and profound harm have been caused. Between 2015 and 2019, the Sri Lankan government initiated some aspects of the transitional justice program, but it also ignored many others. In February 2020, after another change of government, the new political authority withdrew from the UN resolution.

Transitional justice frames reconciliation as a continual, dynamic and difficult process of healing rather than a static outcome that is achieved by any one mechanism. At the same time, mechanisms such as truth and reconciliation commissions accept that ‘truths’ themselves can be multifaceted, competing narratives; that each side values their own truth; and that each must listen to the truth of others.

When people learn of my Tamil ancestry, they often tell me how they honeymooned in Sri Lanka, how beautiful the beaches are, how friendly the people. They sometimes know that the country was torn apart by a civil war – the key features of which they remember as Tamil Tiger suicide bombers, disruptions to further holidays, cancelled international cricket tours. In that order.

This is the story that the West learns, knows and remembers. For the West, the conflict was largely reported as a war for land, with little understanding of historical context. For the West, it was remembered more for the suicide bombings and brutality of the Tamil Tigers than the atrocities committed by the Sri Lankan state against the Tamil people. The multiplicities and complexities of the stories that breathe(d) and were buried in the red earth of my parents’ homeland are reduced to short-lived and incomplete headlines.

THE HARDEST INTERVIEW I’ve ever done was with a doctor who stayed with the war’s refugees in its final months and days, when thousands were forced by both the Sri Lankan government and the Tamil Tigers onto a small stretch of beach. There, they were slaughtered.

This doctor amputated survivors’ limbs without anaesthetics; he used torn clothing as bandages; he stepped over the dead to protect the living. As I listened to his testimony, I acknowledged I was receiving his lived experience – and that his truth would form part of my fiction.

He stated: ‘We are not allowed to speak the truth about what happened, and without the truth there can be no healing.’ He said: ‘Fiction is an important way of telling the truth.’

In this way, fiction is always ours, not mine; fiction drawn from the lived experience of others is written so that it can be shared – and shared so that it can be remembered by everyone, not just those who lived through its story. In this way, fiction is held by communities rather than individuals – or, for that matter, authors. What authors can do is invite readers into that sacred place of remembering: in that way, fiction has the power to become a living, communal archive and storytellers have a responsibility to contribute to it.

This has changed why I write and what I write about. The storyteller has a powerful opportunity to create a space for history, war and injustice to be explored and revealed. The storyteller has a powerful opportunity to create a record of the past. But I describe my work as recording elements of our story because there are so many stories of what it means to be Tamil, so many lived experiences, so many histories that form our living archive.

SRI LANKA’S NATIONHOOD and the narrative of its formation have always been constructed via the selection of which story is told or given preference at a particular time. Waves of migration from India have mixed and merged peoples while also creating distinctions along linguistic, ethnic and religious lines. When European colonisers arrived in the sixteenth century, the island was three kingdoms. The north and the east were historically a Tamil kingdom that sometimes lived peacefully and sometimes in conflict with the two Sinhalese kingdoms of the south. Three centuries later, the island was consolidated under British rule: new boundaries drawn on old maps to enable the British to govern a new colony more effectively.

In Sri Lanka, the battle for territorial legitimacy begins with the battle of contested histories and competing mythologies, remembered and codified in conflicting archives. Who arrived first? Was it the Sinhalese Buddhists or was it the Tamil Hindus? Each side selects its creation story to construct its origin narrative.

The Sinhalese claim descent from Prince Vijaya, a warrior whose father was born to an Indian queen and a lion. Expelled from his kingdom in north-east India, he arrived on the island in the sixth century BCE with a band of loyal kinsmen who would go on to become the Sinhalese civilisation.

The Tamils claim descent from the Tamils of southern India, arriving with their language and religion – an early iteration of Hinduism. Much of the Hindu epic the Ramayana (written in 500–100BCE) takes place on the island named Lanka, ruled by the Hindu king, Ravana. A rare edition of the Ramayana was among the books burned in the Jaffna Public Library.

The dominant archival record in Sri Lanka is the Mahavamsa, a fifth-century CE Buddhist chronicle written by a monk who purports to document the history of Buddhism in Sri Lanka. From the late nineteenth century onwards, Sinhalese political authorities used the Mahavamsa to construct a powerful narrative that Sri Lanka was designated by the Buddha to protect Buddhism. It appointed the Sinhalese people as the rightful custodians of the religion and the country. This mythologised rendering of history was used to claim Sri Lanka for the Sinhalese and frame the Hindu Tamils as usurpers from India who arrived later to steal the country. This history helped drive changes to the country’s constitution and laws that entrenched the supremacy of one people over another.

As Tamils we have been taught a historical narrative about the development of our civilisation on the island, and that evidence to prove the ancient existence of our civilisation has been destroyed, at least partially. We’ve been taught that in the north and the east of the country Sinhalese Buddhist temples were built over longstanding Tamil Hindu ones, that Tamil historians and archaeologists have faced extraordinary pressure from political authorities to hide certain historical findings and emphasise or even contrive others.

Much of my fiction looks at these competing narratives in Sri Lanka, at how they created a particular national identity that excluded and othered the Tamils in their own country. The harnessing of history, its appropriation and control, was the first step towards a long and bloody civil war, spanning 1983–2009, in which people from both racial groups were barbaric to each other. The harnessing and rewriting of history that happened in Sri Lanka happens all over the world.

The burning of books and libraries and the destruction of temples are only two forms of cultural erasure. There are many more, none of them exclusive to Sri Lanka. These include but are not limited to the prohibition of cultural practices, the criminalisation of languages, the stealing of children and their forced assimilation, and the renaming of places. And, of course, there is genocide.

In Australia, I find myself in a country where we non-Indigenous peoples are all negotiating, editing, recording and archiving our histories. We are learning to accept the varied pasts – and sometimes violent journeys – that have determined our present identities. In a country that is still reckoning with the mythology of its colonial origin story and constructed national identity, I feel pushed to the margins by those who claim the centre for themselves. In this country where all non-Indigenous people should consider themselves ‘new migrants’, I learnt from a young age that not all migrants are created equal, and some Australians are more Australian than others.

Untethered from my parents’ homeland and not properly anchored to my new one, my work is a continual iterative narrative arc that is trying to understand, define and claim my place in the world. I am a scribe to my parents’ history of colonisation that catapulted them towards war and several rounds of dispossession. I am a scribe to their, and my own, search for home. Australia’s belated and often reluctant process of reckoning surrounds me as I work. My first novel was mostly about Sri Lanka. My most recent one, published earlier this year, is mostly about Australia. It is the inevitable place for the arc of my body of work to land because each country helps me see the other more clearly.

The public interrogation of Australia’s colonial history has informed my new work, in which I use a destroyed Hindu temple in Sri Lanka and a toppled statue of a coloniser in Australia to explore the competing narratives of dispossession that have been used in both countries to rewrite histories and assert claims over homelands.

The role of history in Australia has helped me understand its role in Sri Lanka and the way ownership over the past allows us to claim the future. The failures of transitional justice and lack of a truthful reckoning in Sri Lanka have helped me understand the consequences for reconciliation if we don’t authentically engage with it here in Australia. Sri Lanka is fractured, perhaps irreparably. Australia doesn’t have to be.

The lived experience of other countries offers Australia an opportunity to do better. The reasoning of judges, lawyers and activists in Sri Lanka who argue that each side must listen to the truth of others offer a mechanism for reckoning and the ongoing process of reconciliation. The doctor in Sri Lanka who says ‘without the truth, there can be no healing’ is offering us the hope – despite everything he’s seen – that with the truth, there is healing.

First Nations peoples tell us about the erasure that commenced upon colonisation, its continuation and its consequences. They tell us about the defensiveness of non-Indigenous Australia when it comes to understanding those consequences or acknowledging our responsibility to address them. This story of erasure is integral to the formation and continuation of modern Australia. This story is our collective shame. But if we acknowledge this archive that we’ve tried to erase, we build an archive of the past that is more honest and reach towards a future that can be more just.

The foundations of both my homes – in their modern-day nation states – are built on colonial myths, some ancient and some more recent. Such historical fictions can only be fought with historical fact. But political authorities do not ever relinquish the fictions on which they have stolen, claimed and built their power. Instead, they strive to assert them more forcefully. They strive to destroy all stories to the contrary, so that only their story remains, only theirs is remembered.

When storytellers write fiction, they strive to build a living, communal archive for the dispossessed. They generate new points of connection, accommodation, understanding and clarity that we can all learn and know and remember. To help us find our ways forward.

ON MY LAST trip to Sri Lanka in January 2019, I travelled with three generations of my family. We went to our ancestral villages and saw the ongoing effects of the war – generational trauma, poverty and disempowerment. My parents took our children to all the places they had loved and left behind while we saw how much of our history had been erased by the ‘rebuilding’ of the north. Rebuilding can hide mass graves and the evidence of war crimes. Rebuilding can raise towering memorials to the political authority which won the war, but not the innocents who died because of it. Rebuilding can hide evidence of the Tamil civilisation’s early existence in Sri Lanka. This architectural approach is an old tool of conquest and colonisation.

We saw Hindu temples scarred with bullet holes, some restored and others neglected and absorbed by encroaching jungle.

We saw an ancient Buddhist temple, discovered and restored, cordoned off and protected as an archaeological heritage site in this same predominantly Hindu region.

We took our children to the new Jaffna Public Library, built in the same place as the old one. It is still a stately building, but its archive will never be the same. I arranged the Chandran grandchildren in front of the library, took a photograph of them and their grandparents and whispered the words ‘cultural erasure’, because although we were in the Tamil heartland, history has taught us to be afraid.

Perhaps it is too heavy a burden to give to children, the grief of their ancestors, but it is as much their heritage as the Bhagavad Gita. When we were given the privilege of living safely in Australia, we were also given the responsibility of carrying our families’ grief.

Outside the new Jaffna Public Library, standing on the hard, red earth of our ancestral homeland, I felt completely at home and completely dispossessed.

Salman Rushdie calls exile ‘an endless paradox: looking forward by always looking back’.

I came back to Australia and began a new novel, Chai Time at Cinnamon Gardens, to try to tell some of the stories destroyed by the Jaffna Public Library fire. To explore the importance of archives not just in recording the past but in justifying the present and owning the future. This new work of fiction spans many things and many people – including an historian who writes a different history of the island.

Gordon Weiss, The Cage: The Fight for Sri Lanka and the Last Days of the Tamil Tigers (The Bodley Head, 2011)

The scorching heat beats down on the field. A herd of cows shelter under the trees that are scattered across the field. I went in search of Mr. Selvarathinam. His wife told me that he had come this way along with his cows, but I could not see him anywhere. I too looked for a tree, sat in its shade and looked idly around. After some time, I saw an old gentleman accompanied by a young man walking my way. I soon realized that this was the person I was looking for.

He was breathing heavily as he sat down beside me. “I can’t walk like I used to, son. Walking even a short distance makes me short of breath. I can’t stand for too long either.” He sat with his legs stretched out and with his hands firmly on the ground behind him.

I had already spoken to Mr. Selvarathinam over the phone and so I didn’t waste any time and got straight to the point.

“They arrested me on two occasions, son. The first time, the TID arrested me after the end of the war. I was taken to a camp after I reached the military-controlled area through Mullivaikkal. They released me after questioning me for two days. I never worked with the movement (LTTE) in any capacity. They (LTTE) used to call me to help dig bunkers and that was all I did. After returning from the camp, some people of the TID came in a white van on a later day. They told me they wanted to question me and took me along with them. Then they released me after 12 long years. Son, I was arrested when I was 58 and released when I was 71. There was no case they could bring against me.”

“I have to live with their support until I die. They are the ones who will bury me after I die. I am unable to do anything on my own. I will be a burden to them until I die.”

Selvarathinam is one of the many who lost out on their lives after being arrested under the Prevention of Terrorism Act. As a result of this draconian law, many people like Selvaratnam, who would have lived with their families in their old age, had to spend the rest of their lives in prison or in poverty after their release. He is also compelled to visit the town frequently to treat a serious wound in his intestine. “I do not know how long I will be alive. I just want to spend the rest of my life without being a burden to anybody and then die.”

Watch the video embedded below to see Selvarathinam relate his story to Maatram Editor Selvaraja Rajasegar (In Tamil)

We began Year 1 of independence as the Switzerland of Asia. We complete Year 75 of independence as the Beggar of South Asia

“I saw them erect the guillotine again tonight” – Alejo Carpentier Explosion in a Cathedral

Call it a no brainer. Whatever Queen Viharamahadevi, the legendary mother of King Dutugemunu, wore, it wouldn’t have been a Kandyan sari (osariya). So why dress up her statue in that garb, jewellery included? Not just any statue, but the one by the Ruwanweli Seya, her son’s most famous construct, and the place Gotabaya Rajapaksa chose to take his presidential oaths in 2019. When the story broke over the social media, the director general of the Archaeology Department took steps to divest the statue of the anachronistic attire ( ඔසරියක් අන්ද විහාරමහා දේවී | Carbon News).

Who dressed the statue (securely placed inside a glass enclosure) in a white Kandyan? Did the chief incumbent of the Ruwanweli Seya and other monks not notice this sudden change? Could enacting such a radical sartorial transformation have been possible without an official wink and a nod?

Dressing up the past in a garb that is profitable in the present has been a Lankan political staple in the last 75 years. Harking back to Dutugemunu is the favourite form in which this politics of redux finds expressed. In this ‘save the nation’ narrative, Queen Viharamahadevi plays a part that is second only to her warrior-son. She is his confidant, mentor, and, advisor, his fellow in the struggle to vanquish the Tamils (we have only Mahawamsa’s word for all this, a tale penned by a monk about 700 years after these events).

The lebensraum type of statement attributed to Dutugemunu in Mahawamsa, that he is lying in a foetal position because he is confined by the sea on one side and the Tamils on the other, has been used again and again by our 20th and 21st century politicians to exacerbate Sinhala insecurities and fears. We are alone and few, this lament goes, in comparison to foreign hordes eternally conspiring to take over this blessed isle. Tamil Nadu Tamils, Western Christians, Muslims everywhere: the identity of the enemy varies, depending on the circumstances. But there is always an enemy.

Politicians of almost every ilk (not excluding the JVP) fed the fires. The Sinhala public believed. Most of what we did in the last 75 years were informed and shaped by this visceral insecurity, this eternal fear.

Imagine living one’s whole life in a continuous fit of paranoia. That has been our existence for close to three-quarters of a century.

To paraphrase the title of a book by Australian archaeologist V. Gordon Childe, nations make themselves. This is especially true of democracies, where governments are chosen by the people. Apart from one exception (the 1982 Referendum), Ceylon/Sri Lanka had periodic elections which were largely free. Where we are today, 75 years into Independence, is a result of choices we, the people, made, and made freely in the polling booth. If we were compelled, it was not by violence but by propaganda, mainly utopian promises and mind-altering phobias.

In 2023 falls another 75th anniversary, that of the disenfranchisement of plantation Tamils. Six months after we gained independence, the UNP government pushed through the Citizenship Act turning the absolute majority of plantation Tamils into stateless persons. As Dr. N.M. Perera pointed out during the ensuing debate, this Act conferred on Ceylon the dubious distinction of being the only country which denied citizenship to people born in its territory (South Africa and Rhodesia would join the ranks subsequently).

Plantation Tamils then were a major part of the Lankan labour and left movement. Their political awakening began in the late 1920s. In 1931, Natesa Aiyar a journalist turned political activist, formed the first trade union in the plantations. When Australian Communist Bracegirdle began his radical work in the plantations, the workers were ready to receive his message. In 1940, a Seven Point Agreement was signed between planters and the unions. With the arrival of universal franchise, plantation Tamils became a potent electoral force with a clear view of their class interests. In the 1947 election, their vote went mainly to the left.

Six months into independence, the UNP government brought the Citizenship Bill to parliament. The move seemed to have been motivated by class, caste and, most of all, partisan political interests. Had the plantation workers voted overwhelmingly for the UNP in 1947, the government would not have sought to disenfranchise them. A national and racial veneer was used to gloss over the horrendous injustice the Bill sought to perpetrate. The plantation Tamils were decried as The Other, privileged enemy aliens seeking to deprive proper Ceylonese of their birthright.

As Rajan Hoole and Kirupaimalar Hoole point out in their recent book, Democracy Stillborn, “The Tamil Congress could have defeated the Bill,” and opted not to. The Bill passed because enough non-Sinhala parliamentarians either voted for it or abstained. Three Tamil members, six Muslim members and six appointed members (four Britishers, three of them planters, and two Burghers) voted for the Bill.

The left movement had electoral and political reasons to oppose the Bill (once the plantation Tamils lost voting rights, the left would abandon them). But there was one Sinhalese member who opposed the Bill on a matter of principle: that of jus soli, citizenship as birthright. Herbert Sri Nissanka, a Buddhist lawyer and an independent member from Kurunegala, was not dependent on plantation Tamil votes. Given the ethnic framing of the issue, opposing the Bill might even have been costly for him. Yet oppose it he did, decrying the attempt to disenfranchise an entire community as an act of injustice contrary to Sinhala honour. It was the high moral path the majority community could have followed and didn’t.

The passage of the Bill proved the efficacy of the race card as a politico-electoral tool. S.W.R.D. Bandaranaike had backed the Bill, defining his stance as ‘harmonising racialism and nationalism’ (ibid). He was to wield the racial-national weapon to excellent effect just nine years later with Sinhala Only. In the 1947 election, the UNP had tried to use the Buddhist card against the left opposition, with little success. In 1956, Bandaranaike used it against the UNP with outstanding success. From then on, race and religion would become an integral part of Lankan politics, paving the way for innumerable calamities including a 25-year war, one insurgency, and the Easter attack.

“The past is never dead. It’s not even the past,” William Faulkner said in Requiem for a Nun. Those lines fit Sri Lanka like a glove. The echoes of our undying past can be heard in the growing vituperation against President Ranil Wickremesinghe’s proposal to fully implement the 13th Amendment. On 27 January Prof. Induragare Dhammaratana thero added a religious gauntlet to the ethnic gauntlet thrown by Wimal Weerawansa et al. “The country is the father,” he said, “and the Buddha is the mother... Monks are willing to rise even tomorrow” against the 13th Amendment’s full implementation (13 ගැන මහාචාර්යය පූජ්ය ඉඳුරාගාරේ ධම්මරතන හිමියෝ හඬ අවදි කරති! – LNW Sinhala).

Whether enough Sinhalese would be receptive to this re-exhumed war cry of Rata, Jathiya, Agama remains to be seen. But its shameless usage shows a terrifying willingness to replay old errors. Provincial Councils will divide the country, its opponents, led by the SLFP and the JVP, hollered in 1987-89 period. The SLFP didn’t contest the first provincial council election and the JVP in its DJV avatar unleashed a spree of murder and mayhem against candidates, activists, officials, and voters. That was in 1988. By 1993, provincial councils had ceased being the equivalent of dividing the country. But the dead, murdered to save the country from being divided by provincial councils, remained dead.

Perhaps before organising another ‘Saffron Rise’, the venerable thero could explain how the full implementation of the 13th Amendment will divide the country. If his ‘reasons’ include his claim that Sri Lanka with pure Buddhism, he can perhaps pinpoint where in Sri Lanka this unsullied teachings of the Buddha be found. Would it be in the caste-based structure of the Sangha? Or in the sadistic ragging of monk-students of the Buddhist and Pali University? Or in the thero’s own claim that the country is the father and the Buddha is the mother? Was that really what the Buddha taught?

“A first step towards a more accurate, and hopeful picture, of world history might be to abandon the Garden of Eden once and for all...” (The Dawn of Everything – David Graeber and David Wengrow). As in human history, in Lankan history too, there is no paradise lost and none to regain. We wasted a good part of 75 years indulging in the fantasy of returning to a past that exists only in political speeches, religious sermons, and our own uninformed imagination. There was never a past that any of us would really want to return to, even if a time machine exists. Our only hope lies in a different future.

We began Year 1 of independence as the Switzerland of Asia. We complete Year 75 of independence as the Beggar of South Asia.

For those 75 years, Unreason has been our divine. Our proclivity to see politics through an (ethnic/religious) Us versus Them lens, our habit of turning most electoral contests into battles-unto-death to save the Motherland from this or that enemy alien, has created a landscape in which only irrationality can thrive.

Many Lankans, when they suffer a theft, seek help from the divine to uncover the mystery. A devale, when it suffers a theft, turns solely to the police to find the culprit. If that particular god cannot protect his/her own property, how can he/she intervene to help a wronged worshipper?

Irrationality, irrespective of its wellsprings, eventually turns political. A person blind to reason and commonsense cannot be expected to vote in his/her own best interests. When such people predominate in an electorate, elections can achieve very little. Gotabaya Rajapaksa, in his only encounter with the media, proved that he didn’t understand ABC of economics. Yet almost 7 million Lankans voted for him, seeing in him Our Hero who Works. That choice tells us all we need to know about our collective psyche and intellect.

Our current bankruptcy and its social costs could have been avoided, had we de-prioritised military expenditure once the war ended. That was the rational thing to do from the point of view of the country and the people, starting with the Sinhala majority. Instead, the armed forces kept on growing as did the costs of maintaining them, eating up the potential peace dividend. Any proposal to cut defence expenditure was decried as unpatriotic. The eternal fear of being overrun by Tamils, Muslims or Christians provided a false logic to this maintenance of a massive military in peacetime.

By 2019, the armed forces had reached an all-time high of 317,000, yet failed to protect the country from a handful of suicide bombers. In 2021, the share of military expenditure of the GDP reached a peak of 2.3%. Yet the military was unable to save the Rajapaksas from the tsunami of public ire.

The recent outbreak of violence at the House of Fashion is the best warning of how close we still are to a general conflagration. Any incident, however trivial or marginal, can be the spark that ignites the fire. Once the flames break out, not all the king’s horses and all the king’s men would be able to staunch them. They may not even try.

Sri Lanka does not feature in international media often, for contrary to beliefs dear to many Sinhalese, the world does not spend most of its time conspiring to take over this island. Recently, though, Sri Lanka made it to global headlines, as part of an AFP fact check. The story is instructive. France decided to give free condoms to young adults aged 18 to 25. On 9 December, Hiru TV published this news on its Sinhala website. The heading omitted to include the word France; it merely said, Government to give free condoms to those aged 18-25. Many Lankans, without bothering to read further, assumed the government was that of Ranil Wickremesinghe. Social media caught fire. This time, the story stopped at some Ranil-bashing. But the next story could feature a Tamil, a Muslim, or a Christian, and the fires of anger could spread from virtual reality to the real one.

Lancet fluke (Dicrocelium dendriticum) is a tiny parasite which enters an ant and takes over its brain, thereby commanding its actions. The infected ant is made to climb a blade of a grass each evening until a ruminating animal eats that grass – because lancet fluke needs to get itself into the gut of a sheep or a cow.

Our behaviour as a nation has been no different over the last 75 years. Like the ant, we too have allowed politicians with their scary rhetoric and promises of salvation to undermine our capacity to think for ourselves. Obedient to those siren calls, we have climbed our blades of grass again and again, hoping for heaven, until calamity grabs us in its unrelenting jaws. The only difference between the doomed ant and us is that the ant has no choice in its fate. We did. We still do.