Harim Peiris

Political and Reconciliation perspectives from Sri Lanka

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Archive for the ‘Uncategorized’ Category

A Public Presidential chiding to the Attorney General & Police

Posted by harimpeiris on October 1, 2018

By Harim Peiris

(Published in the Island of 20th September 2018)

 

President Sirisena several days ago disclosed to the media that he had strongly chided the Attorney General’s Department and the Police Department, specifically the CID, with regard to investigations relating to serving military officials. This was preceded by a special cabinet meeting in which he reportedly had also expressed the same sentiments. To the extent that the President of the Republic strongly criticizes the law enforcement, prosecutorial and justice departments of the Government, the obvious parallel would be with US President Donald Trump who also uses his now famous Twitter account, to both chide his own Attorney General, former Senator Jeff Sessions, Robert Muller, the Independent Counsel investigating possible Russian interference in the US election process and at various times both the FBI and the CIA.

The reason for the US President to take to social media, especially Twitter, to express his ire at the justice system, is that in the United States, the criminal investigative and prosecutorial processes are strongly independent of the executive branch of the government. They are overseen by the legislature, the US Congress. The system of government in the United States strongly separates the three functions of state governance, the executive, legislative and judicial branches.

This is not the case in Sri Lanka. The Attorney General’s Department in particular, is the chief legal advisor to the state and in practice this has meant to the government of the day.  However, it is also meant to be an independent prosecutorial office, but the ability of the AG’s Department to be both government legal advisor and a regulator or enforcer of adherence to the law by government, has in the past always been suspect. Now clearly, they are more independent of the executive, which is why the Presidential recourse to non-performance, is political pressure through a public chiding.

The 19th Amendment at work

 

The 19th Amendment to the Constitution of Sri Lanka is the signature achievement of the Sirisena / Wickramasinghe Administration elected in 2015. It was seen as a stepping stone to abolishing the executive presidency, a reversal of the previous Administration’s 18th Amendment and an attempt to strengthen democracy in Sri Lanka through ensuring that we as a nation are governed by laws and institutions and not by populist strongmen occupying the office of executive president.

Accordingly, key appointments are made by the Constitutional Council to a range of Independent Commissions, which administer critical State functions, such as elections and the police, all of which should be independent of the executive. Handing over the management of the careers of police officers, including appointments and promotions from a politicized process to a truly independent Police Commission has eliminated the need for police officers to take orders from politicians to further their own career prospects.  To that extent, the police are free to operate more independently.

Investigating military officers eliminates appearances of impunity

 

A key allegation against the Sri Lankan State and especially its justice system is that human rights violations and state agent violators do so with impunity. Buttressing this argument is that we have a paucity of cases in which Sri Lanka has prosecuted rights offenders and an even lesser number of convictions in that regard. It is therefore a salutary aspect of Sri Lanka’s democracy and a credit to the robustness of our institutions, if no one is deemed above the law, whether from the political, military, or civil service establishments. Also, due process and protection of the rights of suspects should not be a special privilege conferred on suspect military officers alone. It should be extended to all citizens. It is a cardinal principle of natural justice that everyone is treated equally before the law. Due consideration can and should be given to the rights of suspects including their presumption of innocence. Kishali Pinto Jayawardena in her popular most recent legal column states “In sum ensuring that fairness ensures to all citizens in equal measure in criminal investigation and detention procedures is the basic duty of the state”.

The laws delay

 

The substantive issue that drew presidential ire, was not per se that military officers are being investigated but that such investigations have not resulted in charges being laid, thereby leaving room for the allegation that the arrests and detentions are a witch hunt with extraneous reasons or mala fide. The frustrations expressed by President Sirisena at the lack of prosecutions or the filing of indictments (criminal charges) against corruption and human rights violation suspects is a frustration felt by a large segment of those who voted and supported the “Yahapalana” mandate for change of 2015. So even at this late stage, some progress on prosecutions would serve the cause of justice in Sri Lanka.

The long periods taken to investigate cases, must be viewed in the context of the protracted legal process in Sri Lanka, where the average case takes ten to fifteen years to conclude. The Bar Association which is busy opposing free trade agreements, may be better advised to focus on some legal reforms which can ensure a speedier delivery of justice. As the old popular adage goes, justice delayed is justice denied.

The extended period of holding suspects in remand custody should also be considered in the context of the Prevention of Terrorism Act (PTA), due to be repealed and replaced by the new Counter Terrorism Act (CTA). As Attorney at Law Senaka Perera, President of the Committee for Protecting Rights of Prisoners (CPRP) has claimed that there are one hundred and seven detainees under the PTA against whom charges have not been filed and many have been in remand for over nine or ten years. Hence the severe limitation on the period of detention orders in the new CTA. In summation, it may be fair to state, that Sri Lanka requires many reforms to ensure that society receives more effective judicial remedies.

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Reflections on July’83 – Thirty-five years on / Never again

Posted by harimpeiris on July 30, 2018

By Harim Peiris

(Published on Groundviews and Daily News on 26th July 2018)

 

23rd July marked the 35th anniversary of one of post independent Sri Lanka’s darkest chapters, the July 1983 pogrom against Tamil civilians throughout the country. Which was sparked by an ambush of an Army patrol in Jaffna, by the LTTE, then one of several militant groups operating in the North, in which the entire platoon of thirteen soldiers was wiped out. A couple of days later, as the bodies of many of the soldiers were brought to the Borella cemetery in Colombo for burial with full military honors, anti-Tamil pogrom commenced and occurred. Several thousand Tamil people were murdered through out Sri Lanka and many more displaced and disposed. Thirty-five years later and ten years after the war which it sparked has ended, we can look back now at this shameful chapter in Sri Lanka’s history and learn some lessons for our slowly progressing post war reconciliation process.

Current and prior responses

 

Thirty-five years after the fact, the response of the Sri Lankan State to July ’83 has been more thoughtful and meaningful. Prime Minister Wickramasinghe and Finance Minister Samaraweera were in Jaffna on the occasion and engaged in a series of measures including the launch of Enterprise Sri Lanka in the North, laying out a vision for a future of hope, engaging with the people and very importantly for women’s issues, cancelling micro credit loans up to Rs.100,000 mostly for the single women headed households, among other measures. Prior to that in July 2004, President Kumaratunga had issued a national apology for the July ’83 riots as an interim reconciliation measure and appointed a special commission to pay compensation to victims who lodged claims with the Commission.

The initial response however by the Sri Lankan State and the political establishment in 1983 was a disaster and weakened democratic and pluralist Sri Lanka and strengthened extremism. The direct beneficiary of which was the LTTE in the North and the JVP in the South, which launched its own second insurrection several years later in 1988.

Basically, the Sri Lankan State failed to protect her Tamil citizens from gross violence and accordingly demonstrated a significant state failure in that most fundamental of state responsibilities, the protection of life (of persons) and properties. The name of a well-known then Cabinet Minister was often mentioned as an instigator, organizer and patron of the anti-Tamil violence, which as is often the case with political violence is not spontaneous but organized. President J.R. Jayawardena was silent for several days as Sri Lanka burned and only emerged to express his empathy with the just outrage of the majority community, thereby transforming the discourse on Tamil militancy, as an attack on a pluralist Sri Lanka to a Sinhala verses Tamil conflict. Sri Lanka burned for nearly twenty-five years thereafter and now a decade after the end of the war, there are lessons to be learnt from those failures of July 1983.

Delegitimizes democratic Tamil politics

 

The anti-Tamil riots of 1983 were not without consequences. The Tamil militancy movement which was still very much on the fringes of Tamil politics was vastly strengthened as the democratic Tamil political leadership lost legitimacy in the light of their inability to get the Sri Lankan State machinery to ensure basic physical and economic security of the Tamil people. Further the Sri Lankan State lost legitimacy in the eyes of the Tamil community, as articulated best by former TULF Member of Parliament late Neelan Tiruchelvam, who described it as “the anomaly of imposing a mono ethnic state on a multi ethnic polity”. The Sri Lankan State, began to be increasingly seen and perhaps also acting, as a Sinhala State, rather than a pluralistic, multi ethnic and inclusive state.

With the escalation of the armed conflict following July ’83, any accountability for the gross violations of human rights which occurred, including that most basic right to life, was never ensured by the State, until perhaps President Kumaratunga’s Commission twenty-one years later. However, the low-key nature and relative lack of publicity given to the initiative, due to nay Sayers even within her own Cabinet meant that many victims as well as the general public were generally unaware of the same.

Learn the lesson with regard the Muslim Community

 

It is to the credit of Sri Lanka and Sri Lankans that July 1983 was never repeated though the LTTE escalated violence thereafter. However, the mentality, the politics and rhetoric which enabled and created July’83 has sadly not entirely left our public discourse. When the LTTE attacked the army, the counter measures should have been solely a state response against the perpetrators and not rampaging mobs against innocents. To our collective shame, an entire ethnic minority countrywide were targeted, innocent men, women and children.

Worryingly the same rhetoric is emanating from the self-proclaimed saviors of the Sinhala people today, in relation to the Muslim community. We and democratic Sri Lanka need to be protected from these protectors. As the most venerable Maha Nayaka Thero of the Malwatta Chapter observed after the anti-Muslim violence in Kandy. There are no need for “Balsenas and Balakayas” when we have a democratic state and security structures. Which has at least to date, never failed the majority community, unlike the Tamils in 1983.  In the post war decade since 2009, imaginary and perceived threats from the Muslim community are being bandied about to instigate mini pogroms from Dhurga Town Beruwela, to Ampara and Digana Kandy.

Today the names of terrorist groups like ISIS, are household names and claim to wage their war on Islamic principles and for Muslim objectives. However, we cannot concede to a self-appointed violent few, the mantle and leadership of the whole. ISIS never represents Muslims, while 969 in Myanmar cannot be considered as representing the Bama people of Myanmar nor indeed did the LTTE during the war years, legitimize its self-appointed claim to represent the Tamil people and most interestingly the Bodu Bala Sena (BBS) which contested the 2015 general elections basically lost their deposits with a few hundred votes per electoral division in the Sinhala constituencies. Perhaps the most enduring lesson of July ’83 should be “never again” and violent extremism should always be challenged and not allowed to flourish.

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Garrison against Gota

Posted by harimpeiris on June 20, 2018

By Harim Peiris

(Published in the Daily News of 18th June 2018)

 

The press has been full of reports that outgoing US Ambassador Atul Keshap has cautioned and advised former President Mahinda Rajapakse that the nomination of his brother and US citizen Gotabaya Rajapakse as candidate for president in 2020, faces a variety of legal and other obstacles, based on the sum total of which, the United States would not consider the same favorably. The fact that this information was first put out and confirmed by the former president’s office, indicated that the Rajapakse media team initially at least believed that, being seen unfavorably by the West, is an electoral gain. This is in line with the messaging of the unsuccessful Rajapakse campaign in 2015, which strained to cast that election as a Rajapakse verses the West, a Sri Lanka verses Geneva election. Though in actuality, the 2015 election turned out to be Rajapakse verses the rest of the political parties and the result is history.

US citizenship provides jurisdiction

 

Skimming through social media reactions to Ambassador Keshap’s observations, a small section of social media users has rather predictably called on the US to mind their own business, that Sri Lankan politics is the sole preserve of Sri Lankans. This does hold true, but only with the confines of and the context of the fact that, no nation lives in isolation by itself, but within the community of nations which imposes certain norms, treaty obligations and an ever-increasing body of international law commitments on nation states. The majority of social media users through are aware of the legal implications and rights of national jurisdiction over citizens.

The real, legal right which the US Ambassador excised over Mr. Gotabaya Rajapakse, was and is his jurisdiction over him as a naturalized US citizen. Being a citizen of a country places certain legal obligations on the citizen and more importantly provides the State with jurisdiction over its citizens. US law particularly exercises extra-territorial jurisdiction over its citizens, namely that their actions in overseas territories still make them liable to the US under its own laws.  Further US law does not permit its citizens to hold political office in foreign governments. An official position like a ministry secretary is allowed, a political office is not. A US green-card holder who is merely a permanent resident, may do so but not a citizen. Gotabaya Rajapakse is a dual, US citizen and also a Sri Lankan citizen, thereby being subject to the concurrent dual jurisdiction of both countries.

Ambassador Keshap reportedly made the observation that the skill set required to lead a military and security establishment, where orders are followed without question are not the skills required for managing democratic diversity in a pluralistic society. There have been claims by some JO stalwarts that US citizenship can be renounced at any time. But US citizenship is not like a job, which you simply resign by sending in a letter. Renouncing US citizenship requires that you leave with a clean slate. US law does not permit its citizens to get out of potential legal jeopardy by simply renouncing citizenship to remove US jurisdiction. In that instance, the US refuses to grant such a release. Accordingly, the various allegations against Mr. Rajapakse, including in the US, regarding especially human rights violations would need to be resolved before US citizenship is cancelled.

The 19th Amendment, foreign MPs, judges and presidents

 

The political landscape post the 19th Amendment to the Constitution is somewhat different to the period of the two terms in office. One feature of the 19th Amendment is the specific stricture and prohibition on foreign citizens being members of Parliament. One MP, lost her seat as well through the courts for being a foreign citizen. While the 19th Amendment is silent on the specific issue of a foreign national or a dual citizen being head of state, head of government and commander in chief of the armed forces, the laws of natural justice, the original intent of the framers of the constitution and common law if not common sense would create a fairly convincing constitutional fundamental rights case that a foreign dual citizen is ineligible to be Sri Lanka’s president under our constitution. After all our basic response to even the Geneva UNHRC resolution for foreign and Commonwealth judges, despite the tradition of Commonwealth commonality of a call to the Bar and the legal profession, is that foreigners cannot be allowed to preside over Sri Lankan judicial processes. It would be weird if they can preside over our state and government. It stands to reason then, that we cannot allow a foreign or dual national to be president.

The precedent of 2010

 

Political observers would recall how on the polling day of the 2010 presidential election, Wimal Weerawansa, then a rather vociferous minster in the Rajapakse Government, went on national television while polling was going on, to claim that a vote for then opposition presidential candidate General Sarath Fonseka, a US permeant resident or green card holder, would be null and void because he is ineligible to be president and a vote for him would be a wasted vote. The broadcast was only stopped when the Election Commissioner intervened following protests by General Fonseka’s campaign and the UNP. However, Wimal Weerawansa whose mono lingual eloquence of speech, has never been in doubt, makes a compelling argument that a foreign citizen (he actually argues even a resident, who is merely a long-term visa holder of sorts) could not and should not be elected the head of state, head of government and commander in chief of the armed forces of Sri Lanka. No doubt Weerawansa’s verbal heroics in 2010, may well come back to haunt the JO  and the Rajapaksa’s in the run up to the 2020 elections.

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Presidential Puzzle

Posted by harimpeiris on May 24, 2018

(Published in the Daily News of 24th May 2018)

By Harim Peiris

 

In a unique first in Sri Lanka’s political history, the elections of 2020, still over one and a half years away, has already begun to take center stage in Sri Lanka’s political debate. Never before has it been this way. We were not focused on the 1982 presidential election during mid-1980, nor focused on the 1988 presidential election in mid-1986, nor was there much talk in 1992 about the presidential polls of 1994 but since 2017 political actors seem focused on the presidential polls, still quite some distance away. It was former British Prime Minister Harold Wilson who in 1964 famously coined the phrase, “a week is a long time in politics”. However, we have Finance and Media Minister Mangala Samaraweera and the newly appointed General Secretary of the UNP stating that Prime Minister Wickramasinghe would be the UNP presidential candidate, while the SLFP and UPFA General Secretaries also state that President Sirisena will be the SLFP presidential candidate and very recently former Defense Secretary Gotabaya Rajapakse has emerged as the standard bearer of the Rajapakse comeback project and essentially launched his public exploration of a presidential bid, if not the bid itself at a corporate fat cat white collar event at that most elitist of elite venues and newest five star hotel, the Shangri-La. No not the one in Hambanthota but in Colombo. However, this article is not about the relative prospects of these possible future candidates but the merits of the elected highest public office itself, to which they are probable candidates.

The JVP introduces the 20th Amendment to the Constitution   

 

The JVP, the fourth largest party in Parliament with six seats, behind the UNP, the UPFA and the TNA have introduced the 20thamendment to the constitution, as a private members bill to abolish the office of executive president. Now abolishing the office of the executive president is not a new debate or idea in Sri Lanka. It was first proposed almost twenty-five years ago in 1994, by then President Chandrika Bandaranaike Kumaratunga who famously referred to the 1978 second Republican Constitution as a “bahubootha” constitution. To her credit the draft constitution of August 2000, (which was just eight votes short of the two third majority of the then parliament), abolished the office of executive president. Fast forward to 2014 and the common candidate and now President, Maithripala Sirisena, repeatedly pledged to be a one term president by abolishing the office of executive president. Upon being elected in 2015, an interim measure to curtail its powers, occurred through the 19th amendment to the constitution, was steered through Parliament by the President. So, abolition of the executive presidency has been very much an SLFP driven, Presidents Kumaratunga and Sirisena led effort to abolish the elected dictatorship which is the office of Sri Lanka’s executive head of state. The UNP were late converts to the abolish the presidency school of thought, not least perhaps because the 1978 constitution was the UNP’s baby. However, the political heirs of both UNP presidents, JR Jayawardena and R. Premadasa, namely Prime Minister Ranil Wickramasinghe and UNP Deputy Leader and Senior Cabinet Minister Sajith Premadasa have both endorsed the abolishing of the executive presidency on numerous occasions and the UNP specifically as a party did so, during its constitutional reforms public consultations process and proposed reforms in 2013/2014. So, the UNP as a party has also backed the abolition of the executive presidency. Equally importantly during the 2015 presidential election campaign then President Rajapakse, sensing that his opponent Maithripala Sirisena was gaining traction and momentum and attributing at least some of it, to the pledge to abolish the executive presidency, also joined the band wagon by promising to abolish the same. So, all of Sri Lankas major political actors have in recent times, within this current electoral cycle and public mandate wowed to abolish the executive presidency and the people have backed this proposal through their popular mandate.

Maduluwawe Sobitha Thera and the constitutional reform process

 

Civil society played a catalytic and large role in the election of President Sirisena and none were more influential or catalytical than the late Ven. Maduluwawe Sobitha There, chief incumbent of the Kotte Naga Viharaya and his national movement for a just society (NMJS).  In fact, the NMJS and other civil society organizations in 2015, were adamant that following the presidential elections of January 2015, the priority was not the dissolution of parliament and the holding of fresh elections was not the priority but that rather the constitutional reforms process was the real priority. The result was the 19th amendment to the constitution which basically overturned the horrendous Rajapakse era 18th Amendment to the Constitution, which sought to solidify Rajapakse rule for life.

Since the General Elections of August 2015, Sri Lanka’s parliament unanimously voted to turn itself into a constitutional council and draft a constitution. While the interim report was presented and debated, the all-party steering committee of the constitutional council has not presented a final report in the form of a draft constitution, like the Peoples Alliance, under President Kumaratunga did in August 2000.

Instead the focus of those working on constitutional reform has now become to explore the commonality and the political spaces for the consensus which does exist and seek to implement the same. Accordingly, it is believed that most if not all political leaders and opinion leaders are in agreement to abolish the said office. For Mahinda Rajapakse, it gets rid of the two-term limit imposed on him for the presidency, while for President Sirisena, it is fulfilment of a solemn election promise, while for Ranil Wickramasinghe it is bringing the political game to the arena in which he excels, that of Parliament and the premiership, in which now in his fourth term in that office, he has passed Sirimavo Banadaranaike, who served three terms as Prime Minister. For the JVP, it demonstrates that they box above their weight class in influencing national policy and contributing to the reform agenda, while for the TNA it kick-starts the seemingly stalled constitutional reform process and makes Sri Lanka more democratic, a conducive environment for every bodies human rights and freedoms and not just only minority rights. Sections, but not all of the Joint Opposition (JO) have sounded their disagreement over the proposal, but there is sufficient consensuses without them and the JO is divided over the issue.

The Yahapalanaya national government of President Sirisena and Prime Minister Wickramasinghe, who were elected on a platform of bold political reforms, should use the reform space, gift wrapped and given on a platter by the JVP to bring about the abolishment of the executive presidency, which has been long promised but slow in coming. Now is the time to deliver.

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An emphasis on reconciliation in the President’s throne speech

Posted by harimpeiris on May 15, 2018

By Harim Peiris

(Published in the Daily News of 14th May 2018)

 

President Maithripala Sirisena’s recent throne speech on the occasion of the commencement of the second session of the 8thParliament of Sri Lanka witnessed the President laying out essentially the road map for the remaining two years of the current national unity government’s term of office. It is clear that the emphasis and rightly so, for the remainder of the term would be to revive an economy, yet to recover from a serious overdose of expensive foreign, mostly Chinese loans, obtained by the prior regime for projects of questionable utility value and a lack of serious post war economic reforms. If the Rajapakse Administration got one approach wrong during its second term, that was trying to run the country, post war, as if the war still existed. This was true of not only national security policies but all policy including economic policies.

However, the issue of post war reconciliation or “sanhindiyawa” is also an essential component of Sri Lanka’s post war policy requirements and consequently was also a key part of the policy platform of both the common candidate and the national unity government. Reconciliation requires a democratic and free society. Community and collective rights can only be achieved where individual and personal freedoms are recognized, justiciable and protected. Accordingly, Sri Lanka’s democratic deficit needs to be eliminated and with it the creation of a new social compact which recognizes and accommodates the full diversity of Sri Lanka’s peoples. It was towards this end that the 8th Parliament of Sri Lanka voted unanimously to turn itself into a Constitutional Assembly which would begin the hard work of seeking to establish that consensus. In a political environment where sections of the opposition question the need for national reconciliation or believe that ending the war was the conclusion of an ethnic problem in Sri Lanka, President Sirisena was emphatic on the views and policy direction of the National Government in this regard.

In his address to Parliament, the President stated thus “Honorable Speaker! Whatever the opposition, it is essential to enter into a political program with the consensus and agreement of the people to find a permanent solution to the issue of unrest of the people in the North and East. Although we defeated the terrorists physically, we have not succeeded in defeating their ideology completely”. He goes on to state that “at the time we assumed duty as the government, there was a delay of several years to find solutions to these challenges and the task of facing the challenges have become further difficult”.

In spelling out the broad program of the government, the President clearly articulated the issues as follows. “Recognize the equal rights-based aspirations of the Tamil people, ensure the wellbeing and social-cultural needs of the Muslim Community. He further committed to “empower the upcountry Tamil community socially and economically and strengthen the indigenous identity, by strengthening the cultural identity of the Sinhala people”.  What is noteworthy in the President’s policy statement on reconciliation is its explicit recognition of the various requirements of Sri Lanka’s different communities and the need for the Sri Lankan State to accommodate the full diversity of her different people groups.

During the presidential election campaign of late 2014 and since then, rarely if ever can President Sirisena be faulted for what he has said. His speeches, always delivered in measured Sinhala is nuanced and very carefully crafted, so that he can rarely if ever, be faulted for his public pronouncements. The challenge for his administration in the past and indeed in the future will continue to be to deliver on its good intentions and well-articulated policies. The mid term rebuke at the polls for the two political parties partnering in the national unity coalition government was probably the public’s response to the perception of non-delivery on the extraordinary expectations created by the twin mandates of 2015.

Interestingly the President calls for a more matured political culture which seeks out common ground and consensus in policy implementation and also requests that the political competition between the political partners in government should cease. This is indeed a timely call and the animated political debate on the 2020 elections is surely premature, at no other point in Sri Lanka’s recent political history was a government so focused on an election several years before its due. While a focus on the path or process of a return to power may not be unreasonable for a political opposition, it is foolhardy for a government. A focus instead on what needs to be delivered for the mandate the it has already received may well be the better option for the government.

The other side of the coin, are the smaller political parties which backed Maithripala Sirisena as the then common opposition candidate for president, the TNA, the Muslim parties and the JVP. The TNA especially as the third largest party in parliament has an important role to play as the government’s key interlocutor on reconciliation. Recognizing that it has executive authority in the North and East through the Northern and indeed the Eastern Provincial Council, the TNA should seek to deliver practical solutions to the real life needs of its constituency. Mirroring the electoral rebuke for the government parties in the South was the set back for the TNA in the North. That the TNA mostly lost votes, not to the more Tamil nationalist elements but to the EPDP, the TMVP, Rishard Bathurdeen’s Party and the EPDP breakaway independent group of Chandra Kumar demonstrates that the Tamil people had also wearied of a perceived non-delivery of a “peace dividend or indeed a good governance dividend” and held the TNA and its provincial administrations in the North and East, responsible for the non-delivery. Leading up to 2020, fulfilling the mandate of 2015, may be the best politics for the  rainbow alliance of political parties which contributed to the same.

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