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Sri Lanka’s dead and missing: the need for an accounting
Sri Lanka’s dead and missing: the need for an accounting
Sri Lanka’s Other COVID-19 Crisis: Is Parliamentary Democracy at Risk?
Sri Lanka’s Other COVID-19 Crisis: Is Parliamentary Democracy at Risk?
Commentary / Asia

Sri Lanka’s dead and missing: the need for an accounting

Nearly three years since the end of the war, there’s a growing need for an accounting of – and for – those killed and missing in the final months of fighting in northern Sri Lanka in 2009. Members of the UN Human Rights Council, opening its 19th session in Geneva today, should be ready to press the Sri Lankan government for real answers.

Instead of grappling with the many credible sources of information suggesting tens of thousands of civilians were killed between January and May 2009 – including the UN’s real-time data collection, international satellite imagery, and the government’s own population figures – the government is rewriting history on its own terms. In the lead up to the Human Rights Council session, the government released an “Enumeration of Vital Events” for the Northern Province. It finds the total death toll during the five bloody months of fighting in 2009 to be under 7,000 with another 2,500 missing, but it doesn’t differentiate between civilians and combatants or assign responsibility for any death to either the Liberation Tigers of Tamil Eelam (LTTE) or to government forces.

These findings fall far short of the UN Secretary-General’s panel of experts’ estimate that as many as 40,000 civilians died in those last months and even higher estimates based on the government’s own prior census figures. This “enumeration” also runs counter to an important recommendation of the government’s Lessons Learnt and Reconciliation Commission (LLRC) calling on the government to “conduct a professionally designed household survey covering all affected families in all parts of the island to ascertain first-hand the scale and the circumstances of death and injury to civilians, as well as damage to property during the period of the conflict”. The LLRC made this recommendation at the end of November 2011, well after the “enumeration” project was conducted from June to August 2011.

The LLRC’s report has serious shortcomings in its treatment of allegations of war crimes and crimes against humanity by government forces, but it also acknowledges important realities, including breaking with years of government claims of “zero civilian casualties” and accepting that “considerable civilian casualties had in fact occurred during the final phase of the conflict”. While it then goes to lengths to absolve the government of responsibility for those casualties, its recommendation of a professionally designed survey could help clarify the fate of the dead and missing in the north – if done credibly and independently. Unfortunately, there are no signs of such a credible and independent process emerging.

Just days after the LLRC delivered its report to the president on 20 November, his brother, Defence Secretary Gotabaya Rajapaksa, delivered a speech to the “Inaugural National Conference on Reconciliation” in which he said that the government had “conducted a complete census” in the north, which was “in the process of finalisation”. He said a “questionnaire” had been used which included seven categories of dead or missing persons: “those who died of natural causes; those who died of accidents; those who left th[e] country through illegal means, particularly by boat to India or to South East Asia, and from there to the West; those who died whilst fighting as members of the LTTE; those who died as a result of being coerced to fight by the LTTE; those who died as a result of resisting the LTTE … ; [and deaths] that occurred due to military action”.

Without explaining how those categories were determined or what the government had done to avoid bias in its questionnaire and information gathering, the defence secretary concluded that “as a result of the census, we already know that the real number of dead and missing is far too small to provide any substance to the absurd allegations of genocide and war crimes that have been made against our military by the rump LTTE and their cronies”. On 8 February at an event hosted by the Swiss mission to the UN in New York, Sri Lanka’s permanent representative to the UN repeated the claim that the government has carried out “a comprehensive census in the Northern Province which will enable firm and verifiable conclusions to be derived at on issues involving disappearances, deaths, etc”.

The “enumeration” released soon after this statement doesn’t deliver the details promised. Instead it appears to be little more than another attempt to short-circuit what Sri Lanka’s people really need and what the global community – and even the LLRC – have been asking for: an independent, credible assessment of who and how many died and under what circumstances (i.e., who and what caused the deaths or disappearances).

The process by which this supposed count has happened is not at all clear, but the conditions under which any census would have been conducted in the north – an area under effective military occupation by a victorious army accused of the crimes in question – are not conducive to a fair and accurate count. The risk that the government has now politicised the department of census and statistics, as it already has politicised the police, judiciary and human rights commission, should be deeply worrying to Sri Lanka’s international partners.

As member states of the Human Rights Council prepare for the upcoming session, they should ask the government for a full explanation of how this purported census was conducted, what safeguards were in place to ensure independence, who (by name and by civilian or combatant) was killed or went missing and how, and whether UN agencies and independent civil society organisations will be allowed to verify the findings. Equally important, Council members should ask the government to reconcile its “enumeration” with the now-extensive information available suggesting that tens of thousands of civilians were killed in the final stages of the war, most as a result of government fire into heavily populated civilian areas.

The precise number and identities of all civilians killed in those last bloody months will likely never be known, especially if the government persists in its resistance to an independent, international inquiry. Nonetheless, several sources of information regarding civilian casualties need to be addressed – fully and transparently.

Sources of information suggesting civilian deaths in the tens of thousands

The UN’s real-time, on the ground survey of deaths and injuries

There are, first of all, the casualty figures gathered by the UN and humanitarian staff trapped in the fighting, which recorded 7,721 civilians killed and 18,479 injured between August 2008 and 13 May 2009, after which information collection became too difficult. These numbers were not estimates, but actual counts based on eyewitness sightings verified by two additional sources. The vast majority of those included in the UN count were killed between late January and late April 2009, before the escalation in fighting in the final three weeks.

The Secretary-General’s panel of experts noted strong grounds to believe these numbers understate actual casualties during that period. These include the conservative methodology used to collect the figures, suspected underreporting by UN agencies (in response to pressure from the Sri Lankan government), the location of many casualties in areas inaccessible to observers, and the fact that following 13 May, the number of civilian casualties likely increased significantly as many civilians died from their injuries with no functioning hospital or humanitarian facilities in the warzone to register casualties or treat the wounded.

The government, including the LLRC, has frequently dismissed these figures because the UN failed to publish them, without acknowledging that the UN raised them with the government in private discussions. The UN’s failure to speak out about its casualty estimates and the scale of the humanitarian crisis, and the government’s willingness to castigate the UN for even attempting to assess the civilian toll, are both matters of serious continuing concern.

Casualty estimates for the final week of fighting

Multiple eyewitnesses who were in the warzone during the final week estimate that thousands of civilians were killed in those days. Many describe walking past hundreds of bodies as they exited the final “no-fire zone” and seeing entire families buried in collapsed bunkers. A U.S. embassy cable on 18 May 2009, the day the government declared the war over, said a UN contact thought the LTTE’s claims of 25,000 civilians wounded or killed in the last few days were exaggerated, but that based on a 10 May shelter analysis and estimates of 70,000 to 80,000 people in the “no-fire zone” before the final assault, the number unaccounted for could be as high as 7,000 to 17,000. The UN contact also reportedly said the UN doubted the LTTE’s claims on the night of 17 May that it still had 1,000 to 2,000 cadres.

Contemporary population figures from senior government officials

There is also information from the government’s own officials working in the north suggesting that as many as 70,000 or even 140,000 civilians who were surveyed in the warzone just before or during the final months of fighting never made it to the government internment camps at the end of the war.

At least three separate figures need to be compared against the number of civilians in the camps as of late May 2009, which the government reported to be approximately 290,000. First, the former district secretary for Mullaitivu and current district secretary for Jaffna, Imelda Sukumar, testified to the LLRC on 4 November 2010 that there were 360,000 people caught in the fighting in the Puttumatalan “no-fire zone” established in February 2009.

Second, the UN panel of experts reported that her assistant, the former additional government agent (AGA) of Mullaitivu, and his staff who were in the “no-fire zone” counted some 330,000 people still trapped in the fighting in early February 2009. At that time, government figures showed that 35,000 were already in government camps. After the AGA advised officials in Colombo of the 330,000 figure, they wrote to him that the figure was “arbitrary and baseless” and that the government would be “reluctantly compelled” to discipline him for providing “wrong information to any source especially in regard to IDP figures”.

Finally, documents from the local government offices in Kilinochchi and Mullaitivu districts, dated 30 September and 1 October 2008, show a total population of 429,000. These figures were cited in the LLRC testimony of the Catholic Bishop of Mannar, who asked for clarification as to what happened to the more than 140,000 people apparently missing given the much smaller population corralled into government camps.

Corroborating the government’s contemporary population figures

This last estimate of the number of those still unaccounted for may seem high. Indeed, the central government has long argued that local population figures were inflated under pressure from the LTTE, in order to exaggerate the humanitarian crisis and to generate greater quantities of humanitarian supplies, which the LTTE could steal. While some inflation in the figures is possible, it is unlikely to have been large enough to explain all, or even most, of the discrepancies. There is also some corroborating evidence that argues for taking seriously even large estimates of the missing and demanding a full and independent accounting.

For example, if one takes the total population figures for residents of Kilinochchi and Mullaitivu districts from the 30 September and 1 October 2008 local government documents, they match almost exactly the central government’s estimated 2008 population figures for those districts, which can still be found on the department of census and statistics website in its estimated mid-year population by sex and district, 2000-2010.

The combined total of Kilinochchi residents counted by local officials in late 2008 was 146,700 (121,900 then living in Kilinochchi and 24,800 displaced to Mullaitivu), while the central government estimate for Kilinochchi residents was 140,000 in 2006, 143,000 in 2007 and 147,000 in 2008 (and provisionally 154,000 in 2009 and 156,000 in 2010).

Similarly, the combined total for Mullaitivu residents counted by local officials in late 2008 came to 126,350 (100,600 still living in Mullaitivu and 25,745 displaced to Kilinochchi), while the central government figures for Mullaitivu show 129,000 in 2006, 132,000 in 2007 and 135,000 in 2008 (and provisionally 154,000 in 2009 and 148,000 in 2010).

Because local government officials’ figures for Kilinochchi and Mullaitivu residents in late 2008 are almost exactly what the government had officially accepted for years, the government should explain why so many fewer people ended up in government camps in mid-2009. It should also explain why its most recent “enumeration”, which says there are now only 103,717 people in Kilinochchi and only 66,526 people in Mullaitivu – a drop of over 100,000, doesn’t raise many more questions than it answers.

A UN survey in the internment camps

Another intriguing statistic can be found in a UN Survey of 100 randomly selected shelters in zone 3 of Menik Farm in early May 2009 – prior to the worst fighting of the final two weeks. This small survey found that “22 per cent of the families” interviewed “reported that an immediate family member had died”. Extending this percentage to the approximately 90,000 families who ended up in camps after the end of the war, it suggests a minimum of 18,000 killed. Sample bias and other potential problems with this survey – including the possible inclusion of some combatants or deaths in earlier stages of the war – need to be examined, yet given the timeframe (prior to the deadliest weeks) and the possibility of multiple deaths within (or complete destruction of) some families, it could in fact be a generous minimum.

Estimates of war widows and female-headed households

Finally, there are other estimates available – including from the government – that appear to be consistent with large-scale loss of life. For example, multiple sources have claimed that there are now 40,000 “war widows” in the north. In September 2010, the ministry for child development and women’s affairs said it had lists of 40,000 war widows in the north, though it reduced this number without explanation in August 2011, to only 16,936. A separate media report cites government and donor figures of 30,000 out of 110,000 households in the former warzone that are headed by women. And a survey by the Jaffna-based Center for Women and Development reportedly estimated 40,000 female-headed households in the north, half of those in Jaffna. Not all of these women would have lost their husbands in the final months of the war, nor would all those men killed have been civilians – but many would have. And to the number of non-combatant husbands killed, one would have to add the women, children and unmarried men who died in the fighting, as well as those cases where both members of a married couple – and even whole families – were killed.

What the LLRC said about civilian casualties

The LLRC reported that the scale of civilian casualties, especially from January to May 2009, was a key question for the commission. Yet it accepted what the defence ministry told it – that “an estimate of civilian deaths was not available”. At the same time, the ministry had no problem providing an estimate of LTTE deaths – 22,247 for July 2006 to May 2009, with 4,264 confirmed by name for the period January to May 2009; or an estimate of security force deaths – 5,556 for July 2006 to May 2009.

Separately, the LLRC noted that the defence ministry had estimated the total number of LTTE cadres in the north to be 21,500. Given that approximately 11,700 suspected cadres were detained for “rehabilitation” at the end of the fighting, there are serious questions as to (1) how the government reconciles its 21,500 cadre estimate with its total of 34,000 killed or detained; (2) whether the 22,247 LTTE deaths were combatant deaths; and (2) whether the 11,700 detained for “rehabilitation” were in fact combatants. Unfortunately, the LLRC did not acknowledge, let alone answer, any of these questions.

Instead, the defence ministry told the LLRC that “it would be extremely difficult, if not impossible, to distinguish between LTTE and civilian casualties”. The LLRC expressed its “regret” at the absence of any official record or post-conflict estimate of civilian casualties while at the same time concluding that “considerable civilian casualties had in fact occurred”, but placed the blame primarily on unexplained “crossfire” and on the LTTE – just as the government and military officials who testified before it did.

The LLRC’s recommendation of a professionally designed island-wide household survey regarding civilian deaths and injuries – if done independently and credibly – could make up in part for its unwillingness to challenge the government’s narrative. Such a survey could also provide all Sri Lankans more clarity regarding how many and whose lives were lost in the war, including thousands of missing soldiers and people killed or disappeared outside of the north through decades of counter insurgency operations.

A man reads a newspaper with a headline on Sri Lanka's dissolution of parliament in Colombo on 3 March 2020. LAKRUWAN WANNIARACHCHI / AFP
Commentary / Asia

Sri Lanka’s Other COVID-19 Crisis: Is Parliamentary Democracy at Risk?

President Gotabaya Rajapaksa’s government appears headed for a constitutional crisis that could lastingly damage Sri Lanka’s political institutions and aggravate conflict risks. Firm and concerted action by the country’s international partners could help break the impasse, which comes amid rising authoritarianism and anti-Muslim propaganda.

The Sri Lankan government has declared its intention to rule without parliamentary oversight for the first time in the country’s modern history, potentially sparking a serious constitutional crisis. Elected in November and without a majority in parliament, President Gotabaya Rajapaksa seized his earliest opportunity to dissolve the legislature on 2 March and schedule a general election for 25 April. As the COVID-19 emergency grew serious in late March, the National Elections Commission (NEC) delayed the vote indefinitely. With the constitution stating that parliament can remain dissolved for only three months pending fresh elections, Sri Lanka will head into dangerously uncharted territory unless the president or courts take decisive action before the deadline expires on 2 June.

Serious legal anomalies quickly emerged as the government took steps to respond to the pandemic in parliament’s absence. For instance, curfews used to enforce “social distancing” are of questionable legal validity without parliamentary approval. In addition, several ad hoc emergency task forces appointed by the president (two of which are headed by his unelected brother Basil Rajapaksa and a third by the army commander) have largely ignored existing legislation for handling disasters.

The COVID-19 crisis has also seen the military granted a larger policy role than ever before.

More importantly, the process of setting a new election date is in constitutional and practical disarray. Although the constitution is clear about the three-month limit, the NEC decided to postpone the vote until the virus is safely controlled, meaning that the 2 June deadline would have passed. Foreseeing the constitutional dilemma ahead, the NEC had first asked the president to consult the Supreme Court for its opinion on how to proceed, but Rajapaksa refused.

Under pressure from the government to hold the election as soon as possible, the NEC chose 20 June as the new date, ignoring arguments that conditions were still not safe enough for a free and fair election with full campaigning. On 20 May, lawyers for the NEC told the Supreme Court that the election could not be held on the proposed date and that preparations for the vote would require nine to eleven weeks after health officials declare that conditions are safe. The earliest possible election date would thus fall in late July or early August.

A separate legal problem emerged at the end of April, when the government exceeded the debt ceiling established by the temporary budget that parliament approved in October last year. With the expiration of the temporary budget’s validity on 30 April, and no parliament in place to vote on a new budget, the government now has no constitutional power to borrow additional funds and, according to some legal analysts, no authority to spend any, either. Based on publicly available information, the government appears to have little if any money remaining in its treasury, making new borrowing essential.  

Given the impossibility of installing a new parliament by 2 June, the easiest way to avoid a constitutional crisis would be for the president to use his powers to recall the previous parliament before the three-month time limit is reached. In such a scenario, Rajapaksa would be able to dissolve the parliament again, ideally once it had approved a short-term budget and the health situation allowed elections to be conducted safely. Since the currently dissolved parliament’s full term would not expire until 1 September, taking into account the three-month rule, an election could take place as late as the end of November.

Despite the constitution clearly saying otherwise, Rajapaksa has repeatedly claimed that he has no power to reconvene parliament and characterised the violation of the constitution’s three-month time limit as unavoidable. As for the debt situation, the president’s office has offered no clear or sound defence of its legal authority to borrow, relying on the unprecedented legal anomaly of a short-term budget prepared by the Finance Ministry after the parliament’s dissolution in March.

Sri Lanka’s Democratic Institutions Already under Pressure

The risks inherent to extra-constitutional rule are made sharper not only by Sri Lanka’s ongoing health crisis – which has precipitated two months of damaging lockdowns across the island – and the economic downturn that will likely accompany it, but also by the aggressively Sinhala nationalist, family-centred and authoritarian style of rule established during Gotabaya Rajapaksa’s first six months in office.

Since his election in November 2019, President Rajapaksa – whose brother, Mahinda, is prime minister and whose other brothers are in key positions – has given retired and active military officials an unprecedented role in governance. Some are credibly alleged to have overseen serious human rights violations during the final years of the country’s civil war (1983-2009), when Gotabaya was defence secretary and Mahinda was president. The Ministry of Defence has taken over a number of key civilian agencies and, at latest count, eighteen generals – most but not all retired – head or hold senior positions in civilian departments. A significant number of them are members of the same Gajaba army regiment in which Gotabaya served during the 1980s. The COVID-19 crisis has also seen the military granted a larger policy role than ever before, with the army commander heading the national coronavirus task force and military personnel in charge of many aspects of disease control.

The new government has also taken direct political control of the police department and actively reversed previous tentative steps toward accountability for grave crimes committed by government forces during the civil war. Within days of taking office, the president ordered a shake-up of the police Criminal Investigation Department, demoting or transferring officers in charge of high-profile investigations of political crimes committed when his brother Mahinda was in power between 2005 and 2015, and reappointing or promoting police and military intelligence personnel detained on suspicion of involvement in murders and abductions. Even as previous criminal investigations are now officially reclassified as “political victimisation” – despite significant evidence of wrongdoing presented to courts – police have arrested or questioned opposition politicians on grounds that appear politically motivated. The authorities have also targeted Muslim activists: notably, they have detained a prominent Muslim lawyer, Hejaaz Hizbullah, on terrorism charges without presenting him in court or allowing him private access to his lawyer, thus flouting even the minimal safeguards of the draconian Prevention of Terrorism Act.

The government policy of mandating cremations for coronavirus victims (…) has angered and frightened Muslims.

The government’s authoritarian tendencies and increasingly bold disregard for the rule of law come at a time when its COVID-19 policies have taken already simmering religious tensions to dangerous heights. The government policy of mandating cremations for coronavirus victims – without medical justification and in the face of appeals by the UN and Muslim leaders inside and outside Sri Lanka to respect Muslim religious practices – has angered and frightened Muslims. Fearful of being hospitalised and forcibly cremated should they die, many are reportedly determined not to report their symptoms in case of illness. With pro-government media giving disproportionate attention to infections in Muslim neighbourhoods, and social media and online news sources full of disinformation blaming Muslims for deliberately spreading the disease, Sri Lanka’s Muslim minority is increasingly feeling under siege.

In parallel, President Rajapaksa has been actively – and successfully – cultivating the Buddhist clergy, resulting in the most senior of Sri Lanka’s Buddhist monks in late April publicly endorsing his refusal to reconvene parliament. Moves to establish a military-led task force to “protect” allegedly threatened Buddhist heritage sites in the eastern province – where state support for Sinhala settlers in the 1950s-1970s helped spark the civil war and tensions over land remain high – further indicate the deepening interpenetration of civil, military and Buddhist authorities.

The Partisan Divide over the Constitutional Impasse

On 27 April, the parliamentary opposition called on the president to reconvene the dissolved assembly. Citing the need to “work together for the common good … amid an unprecedented crisis”, it publicly committed to support government policies to fight COVID-19, to pass the needed legislation to regularise curfews and other executive health regulations since March, and to approve new government funding and an increase in the debt ceiling. The president and his top officials rejected the offer, dismissing it as part of a “narrow political agenda” designed to avoid an early election the opposition is almost certain to lose. The main opposition United National Party, already unpopular following its 2015-2019 term in government, split in two following President Rajapaksa’s decisive victory over its candidate in November 2019. 

The president and ruling family are both eager to hold an election while their popularity is high, and before voters feel the worst impact of the looming economic crisis, but they are also determined to rule without parliament in the meantime. Ministers and government supporters buttress their refusal to allow the assembly to reconvene with the populist claim that the president, elected last year by a wide margin, has a stronger democratic mandate than the legislators, who were elected in January 2015.

But what is most striking about the impending crisis is how unnecessary it is. Not only are there clear constitutional provisions for handling the situation, but even from the vantage point of a government’s normal political interests the president’s Sri Lanka Podujana Peramuna party is almost guaranteed a large victory whenever the election takes place. With the opposition in disarray, the media overwhelmingly supportive of the government, and the president as popular as ever thanks to the government’s success so far in containing COVID-19 (only ten recorded deaths from just over 1,000 confirmed cases), the Rajapaksa government appears invincible.

In this context, its apparent refusal to accept the modest constraints of parliamentary oversight seems to confirm widespread fears of an executive determined to rule without meaningful checks on its power. Rajapaksa and his entourage have made clear since his election last year that one of their top priorities is to significantly strengthen presidential powers, which they argue were dangerously weakened by the 19th amendment to the constitution, adopted almost unanimously by parliament in April 2015. To amend the constitution, the government will need a two-thirds majority in parliament – hard to achieve due to the proportional nature of Sri Lanka’s voting system. But with the president’s popularity at an all-time high, his party calculates that the sooner the election is held the greater chance it has of reaching the target.

Is There a Judicial Solution to the Crisis?

With the clock ticking toward a constitutional crisis, opposition parties and civil society activists have turned to the Supreme Court. On 18 May, the court began hearing arguments in seven separate “fundamental rights” petitions calling for the parliament’s immediate reconvening and challenging the legality of the administration’s continued spending and borrowing. A number of petitioners argue that once it became clear the pandemic would make it impossible to have an election within the stipulated three months, the president’s original declaration dissolving parliament was automatically rendered null and void. According to this interpretation of the constitution, any election held after 2 June would be illegal unless parliament is first recalled and the constitutional clock reset. Lawyers for the president and his party, on the other hand, are trying to convince the court to dismiss the petitions on procedural grounds, accusing the petitioners of waiting too long to file the case and acting in bad faith, trying to avoid elections they would likely lose.

Assuming that the court decides to make a judgment on the case’s merits, the simplest scenario from a constitutional perspective would be for the judges to determine that, in light of the inability to hold the election within the allotted three months, parliament automatically comes back to life. Constitutional regularity would be restored, and the president would retain the authority to dissolve the assembly as soon as it had approved a short-term budget and done other legal housekeeping. Independence of the judiciary apart, such a verdict would, however, require significant courage from the court given the furious reaction it would likely provoke from the president. In a worst-case scenario, Rajapaksa, who is widely feared and can count on the military’s backing, could simply reject the ruling. That would mark a dangerous break from Sri Lankan political tradition: even through forty years of insurgencies, civil war, emergency rule, grave human rights abuses and numerous abuses of executive power, no government has directly defied the Supreme Court or ruled without parliament.

Also dangerous – but perhaps less likely to spark open political conflict – would be for the court to endorse some version of the “doctrine of necessity” promoted by the president’s supporters and sanction an indefinite period of exclusive executive rule in advance of a general election. Such a ruling would set a precedent in opening up legal space for executive power with no parliamentary oversight. A third, perhaps safer option for the court would be to try to split the difference, accepting on as-yet-unknown bases the legality of the president ruling without parliament, but limiting this arrangement to a specified period. With the elections commission now indicating that the earliest possible date for a vote would be late July, even this “compromise” would create a two-month gap in constitutional rule.

Finally, the slow pace of hearings suggests that the court may choose another route entirely. Despite the urgency, the judges have already spent more than a week on the preliminary step of deciding whether the petitions have strong enough grounds for the court to hear arguments leading to a judgment. It appears increasingly likely that the 2 June deadline will pass without a court ruling, leaving a constitutional breach as a fait accompli the court could have great difficulty repairing.

Any scenario that sees an election held without parliament first having been recalled and government spending and borrowing authority regularised would almost certainly provoke claims of illegitimacy, even if it had the court’s sanction. Critics would be especially vocal if the elections were held at a time when virus-related health restrictions limited the ability to campaign freely. Although immediate violent resistance is unlikely, the longer-term damage from forcing through an election on unconstitutional terms and in unsafe conditions could be considerable. Sri Lanka has suffered its worst periods of political violence precisely when the door to change through elections and non-violent protest has appeared closed – whether for Tamil youth in the 1970s or Sinhalese youth in the 1980s. It is essential to avoid the door closing again.

How External Actors Can Support Sri Lanka’s Parliamentary Traditions

The current political impasse has deep roots that are not easily amenable to outside influence, and the Rajapaksa government is particularly resistant to international advice or pressure. Among other indicators of this resistance, the government announced in February it was withdrawing co-sponsorship of the UN Human Rights Council resolution agreed to in 2015 and rejecting key elements of the UN-backed package of transitional justice measures designed to address the civil war’s legacy, saying they were a betrayal of the nation’s “war heroes”. The government has also rebuffed multiple requests from UN officials and from the Organisation of Islamic Cooperation and its member states to change its mandatory COVID-19 cremation policy and to better protect Muslims from hate speech and violence.

Firm and cohesive action by Sri Lanka’s international partners might help foster a constitutional way out of the impasse.

Despite these challenges, firm and cohesive action by Sri Lanka’s international development partners might help foster a constitutional way out of the impasse. Even before the COVID-19 outbreak, the new Rajapaksa government faced a formidable challenge in financing some $4 billion in loans coming due in 2020. The government’s need for international financial support – now even greater given the economic damage expected from the coronavirus shutdown – offers a rare point of leverage to nudge the president and ruling family onto a constitutional path. 

That leverage should be even stronger now that the government has lost its legal authority to borrow additional monies. Indeed, international financial institutions and their member governments may have a fiduciary responsibility not to loan money to a government that has no legal power to borrow. They also have a moral responsibility to use their leverage to help maintain, rather than undermine, political stability and the rule of law. Helping finance extra-constitutional rule in Colombo risks sending all the wrong signals and setting a precedent not only in Sri Lanka but elsewhere, too.

For these reasons, the World Bank, Asian Development Bank, International Monetary Fund and Asian Infrastructure Investment Bank should all convey to the government that they are reviewing approval of additional loans until the gap in government authority to borrow and appropriate money is closed. Contributing governments to these institutions should make clear to the Rajapaksa administration that they will not be able to offer, or vote in favour of, further loans so long as parliament has not made this possible through a properly approved budget and an increase in the debt ceiling.  

To prevent any undue economic harm to average Sri Lankans, other forms of development assistance – including urgently needed help to mitigate the impact of the coronavirus – and trade would continue unchanged. The temporary pause in international lending would not be about punishing Sri Lanka, but rather about protecting its own rules, and the integrity of international lending institutions, from being abused.

Worries that taking such action would only make Sri Lanka more dependent on China, and more likely to copy its governance style, are overblown. Sri Lanka’s economy relies too heavily on trade with the European Union and the U.S., and it values its strong military ties with Western governments, Japan and India too much, to move fully into China’s orbit. While Beijing provided a $500 million loan in March and later promised “fullest cooperation to revive Sri Lanka’s economy in the post-COVID-19 period”, Chinese assistance alone will not be enough to rescue Sri Lanka from its current debt woes.

Independent of lending policies, influential foreign actors such as the U.S., the EU, India and Japan, as well as multilateral institutions – notably the UN and the Commonwealth, for whom parliamentary and constitutional rule are core values – should press the government to recall parliament, pass the required laws and ensure to the extent possible that the election is held in a safe environment. By doing so, Sri Lanka’s international partners would be helping the country avoid an unnecessary and damaging power grab and political crisis – one that could also threaten its ability to manage the unavoidable health and economic crises it will be facing for months to come.