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The Executive and the Shadow State in Sri Lanka

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Abstract

This paper traces the manner in which, in post-war Sri Lanka, the executive presidency, with few fetters and restrictions on its authority, was used to enable and sustain militarisation through the securitisation of certain groups and identities, and proposes a conceptual framework to better understand it. The paper begins by setting the context and ways in which the executive created an environment conducive for securitisation and militarisation, mainly through the use of emergency powers which enabled the creation of unofficial rules and processes that remained even following the lapse of the state of emergency. Thereafter, the evolution of securitisation in post-war Sri Lanka, the use of militarisation as a strategy to deal with securitised identities and communities, and the utilisation of securitisation to justify militarisation is examined. The paper then focuses on the impact of the dual processes of securitisation and militarisation, and sets out the deliberate strategy used to undermine and control political activism and activity in the conflict-affected areas. The final part of the chapter uses elements of the concepts of the deep state, the garrison state, and the dual state to illustrate the existence of a shadow state that came into being in Sri Lanka.
8
The Executive and the Shadow State in
Sri Lanka
Ambika Satkunanathan
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Introduction
Executive presidentialism is the dominant feature of Sri Lanka’s
constitution as well as its political culture. The powerful executive
created by the 1978 Constitution, and the absence of adequate
checks and balances allows authoritarian and undemocratic acts
of executive presidents, which have not only eroded the
accountability and independence of the legislature and judiciary,
but also the supremacy of the constitution itself.1 Nearly six years
after the end of armed conflict in May 2009, militarisation in Sri
Lanka has become normalised and entrenched, and the military’s
extensive involvement in civilian affairs exceeds boundaries
prescribed in a constitutional democracy. 2
The aim of this chapter is to propose a conceptual framework to
better understand the manner in which, in post-war Sri Lanka,
the executive presidency, with few fetters and restrictions on its
authority, has been used to enable and sustain militarisation
through the securitisation of certain groups and identities.
Securitisation is ‘discourse that takes the form of presenting
something as an existential threat to the referent object’, which is
then used to legitimise and justify extraordinary measures taken
by the state that restrict rights.3 Securitisation, and militarisation
as the strategy used to deal with the securitised communities and
identities, have led to the creation of unofficial structures and
processes, which while existing alongside official and legal
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1 In Sri Lanka, the executive has shown scant regard for the separation of
powers. For instance, in January 2013 the President summoned the 43rd Chief
Justice and judges of the Supreme Court prior to the court delivering an
important decision on legislation that was the brainchild of Basil Rajapaksa,
Minister of Economic Development and the brother of the President. The 44th
Chief Justice, Mohan Peiris, who was appointed after the impeachment of the
43rd Chief Justice Shirani Bandaranayake despite Court of Appeal and Supreme
Court rulings against it, has himself stated that the legislature, executive and
judiciary are three different institutions only for “administrative purposes” and
he believes the three institutions would be most public friendly if they function
as a single mechanism.
2 Although Mahinda Rajapaksa was defeated at the presidential elections held on
8 January 2015 as of February 2015 it is yet to be seen whether and to what
extent the military complex will be dismantled.
3 O. Waever, quoted in U. Abulof, Deep Securitisation and Israel’s
“Demographic Demon”’ (2014) International Political Sociology 8:396.
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institutions, laws and processes, usurp the latters’ authority. The
contours of this shadow state will be sketched by drawing upon
elements of three concepts: the deep state, the ‘garrison state’,
and the ‘dual state.
This chapter will begin by setting the context and ways in which
the executive created an environment conducive for securitisation
and militarisation, mainly through the use of emergency powers
which enabled the creation of unofficial rules and processes that
remained even following the lapse of the state of emergency.
Thereafter, the evolution of securitisation in post-war Sri Lanka,
the use of militarisation as a strategy to deal with securitised
identities and communities, and the utilisation of securitisation to
justify militarisation will be examined. This section will also argue
that the deification of the President who was portrayed as a
paternal protector figure played a crucial role in securitisation and
militarisation. The impact of the dual processes of securitisation
and militarisation will be the focus of the following section, which
will set out the deliberate strategy used to undermine and control
political activism and activity in the conflict-affected areas. The
final part of the chapter will use elements of the concepts of the
deep state, the garrison state, and the dual state to illustrate the
existence of a shadow state that came into being during the tenure
of President Mahinda Rajapaksa.
The Presidency and the State of Exception: Creating a
Conducive Environment for Securitisation and
Militarisation
The President is the head of the armed forces and commander in
chief.4 He is also the Minister of Defence. Article 155 of the
Constitution bestows upon the President the power to declare a
state of emergency. The substantive powers brought into effect by
the declaration of a state of emergency are found in the Public
Security Ordinance No 25 of 1947 as amended (PSO). These
wide-ranging powers, which include the power to promulgate
emergency regulations and to call out the armed forces to
maintain public order, place few fetters on the President. For
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4 The Constitution of Sri Lanka (1978): Article 30 (1).
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instance, Section 12 of the PSO, which gives the President the
power to call out the armed forces if ‘circumstances endangering
public security in any area have arisen or are imminent and the
President is of the opinion that the police are inadequate’ to deal
with the situation, confers powers of search and arrest upon the
armed forces. The Order is valid for one month from the date of
publication in the gazette, and has to be re-issued at the end of
that period. Unlike the declaration of a state of emergency, which
requires parliamentary approval, the Presidential Order has to be
only communicated to Parliament.5 Any failure to communicate
to Parliament does not affect the validity or operation of the
Order. Further, any act done in good faith under a state of
emergency is not subject to judicial oversight or review and hence
Parliament becomes the sole oversight mechanism.
Due to a number of reasons, including the proportional
representation electoral system, a weak parliamentary committee
system, and a weak opposition plagued by internal strife, a
scholar’s warning more than 30 years ago that it will be possible
to ‘reproduce in time a group of Parliamentary representatives
who do not represent the people but only the President’6 became
a reality in Sri Lanka. In particular, during the periods when the
UNP commanded a five-sixth majority between 1977 and 1989,
and the United People’s Freedom Alliance (UPFA) gained a two-
thirds majority in 2010, Parliament functioned more as an organ
that rubber-stamped the decisions of the President, rather than as
an oversight mechanism. In response to The Straits Times reporter’s
statement during an interview with President Mahinda Rajapaksa
that the ‘parliament will do what you tell them to do’, Rajapaksa’s
response ‘I know…or I hope so (laughing)’7 is illustrative of this.
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5 Public Security Ordinance No. 25 of 1947: Section 21 (2) and 2 (3).
6 G. Obeyesekera, ‘Political Violence and the Future of Democracy in Sri
Lanka’, the Committee for Rational Development (1984) Sri Lanka: The
Ethnic Conflict-Myths, Realities and Perspectives’ (New Delhi: Navrang):
p.49.
7 R. Velloor, ‘President Rajapaksa wants to be remembered as a man who loved
his country, his people and did his best to serve them’, Straits Times, March
2010, available at
http://transcurrents.com/tc/2010/03/president_rajapaksa_says_he_di.html
(accessed on 15 February 2015).
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Further, as Minister of Defence, the President is bestowed with
considerable powers that curtail civil liberties through the
Prevention of Terrorism Act (PTA). For instance, the PTA allows
arrest without a warrant and permits detention for an initial
period of 72 hours without the person being produced before the
court,8 and thereafter for up to 18 months on the basis of a
detention order issued by the Minister of Defence. 9 The
lawfulness of a detention order issued by the Minister of Defence
cannot be challenged in a court of law. The Minister of Defence
does not have the power to create new offences, which can only
be done either through new legislation passed by Parliament or by
way of a proclamation of a state of emergency under the PSO.
However, following the lapse of the state of emergency in August
2011 the President used the PTA, specifically Section 27 of the
Act, which empowers the Minister of Defence to make regulations
under the Act for the purpose of carrying out or giving effect to
the principles and provisions of the Act, to re-introduce lapsed
Emergency Regulations into the statute books through the PTA.
In Sri Lanka, national security considerations have been always
given precedence in official rhetoric and action, which placed it
above ‘democratic values and policy decisions’.10 Due to national
security considerations, throughout the war certain populations
and geographical areas were securitised. The executive’s extended
use of emergency powers to legislate during difficult times and
bypassing elected representatives for an extended period, led to
the state of exception remaining even after the state of emergency
ceased to exist. The normalisation of the exception took place in
stages with each precedent setting the bar higher for the next,
thereby with the scope and nature of the powers being inflated
after each successive emergency. This resulted in the government
using ‘the extraordinary powers and authority granted and
exercised during previous emergencies’ as the point of reference
during the next emergency rather than ‘normalcy’. 11 As
Fionnuala Ni Aolain states, ‘to recognise an emergency we must,
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8 Section 7 Prevention of Terrorism Act.
9 Section 9 Prevention of Terrorism Act.
10 A. Welikala (2008) A State of Permanent Crisis: Constitutional
Government, Fundamental Rights and States of Emergency in Sri Lanka
(Colombo: Centre for Policy Alternatives): p. 20.
11 Welikala (2008): p.102.
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therefore, have the background of normalcy’.12 Even after the
lapse of the state of emergency, the regime used the legacy of the
Emergency Regulations and the PTA as a template to implement
its dual pronged project of securitisation and militarisation
through unofficial rules and practices ‘as well as a vocabulary of
danger’.13 Militarisation as a strategy was thereby justified as the
only means to counter threats posed by the securitised areas and
populations, which were deemed to continue to exist in post-war
Sri Lanka. For instance, Tamil diaspora groups and the Tamil
population in the conflict-affected areas, particularly young Tamil
men, were presented as potential threats to the state as they were
seen as groups that could revive the LTTE, thereby legitimating
securitisation which could be dealt with only through
militarisation.
The state of emergency enabled the creation of a number of
unofficial rules and processes, which had/have no basis in law but
have become the norm, if not at the macro level, most certainly at
the micro level. These are rules and processes the military
followed in the conflict-affected areas and which were known to
the local populations, but most often not to those living outside.
Although they are not in the statue books, they attained the status
of formal rules, and were applied by those exercising power as
formal rules at the expense of proper laws, regulations, and
circulars. For example, following the end of the war in 2009, those
deemed former LTTE members and sent to government-run
rehabilitation centres were subjected to the process of signing-in
at army camps and military-run civil affairs officesfollowing
their release. This process, which has no legal basis, assumed the
position of a formal process with Gotabhaya Rajapaksa often
informing diplomats and visiting dignitaries that the process is in
place due to the government’s need to monitor the released
former cadres. 14 Queries made to the Attorney-General’s
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12 F.Ni Aolain, ‘Situating Women in Counter-Terrorism Discourses: Undulating
Masculinities and Luminal Femininities’ (2013) Boston University Law Review
93: 172.
13 E.M. Montano (2012) Citizenship in Times of Exception: The Turn to
Security and the Politics of Human Rights in Valle del Cauca, Colombia
(University of Massachusetts, Amherst) Dissertation. p. 43
14!Gotabhaya Rajapaksa, President Mahinda Rajapaksa’s brother and Secretary,
Ministry of Defence, has played a key role in the process of militarization. The
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Department by various diplomats and international organisations
regarding the legal basis of this process elicited no response. While
the creation and application of informal rules and processes are
not particular to the Rajapaksa regime, it is during the Rajapaksa
era that these informal rules and processes began to attain a
formal status to the point where a context was created in which it
was made clear that challenging them would lead to reprisals and
punitive action by the state.
Is Militarisation Imperative to Deal with Securitised
Groups or is Securitisation Employed to Justify
Militarisation?
Militarisation is the primary strategy used to deal with securitised
communities and identities, whereby the population, particularly
in the conflict-affected areas, was ‘subject to permanent managing
and ordering’ through multiple means.15 One such process was
regular registration, i.e., undertaking unofficial censuses of the
population in the north, which was not implemented in all parts
of the north nor was uniform procedure used in every area.
Dissenters, human rights defenders, community leaders and
political activists from opposition parties were amongst those who
were ‘constantly framed as actual or potential terrorists (or their
collaborators)…’ 16 and subject to military surveillance. For
instance, the report of the army on the recommendations of the
Lessons Learnt and Reconciliation Commission (LLRC)17 points
out that for security reasons it is imperative to monitor the
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fact the President is the Minister of Defence enables Gotabhaya to assume a far
broader role with more powers than an average secretary to a ministry. Although
technically a government official he has functioned more as a politician or a
parliamentary representative and exercised powers far exceeding his mandate
and duties.
15 Montano (2012): p. 100.
16 D. Ojeda, ‘War and Terrorism: The Banal Geographies of Security in
Colombia’s “Retaking” (2013) Geopolitics 18 (4): p. 762.
17 On 15 May 2010, in response to the Secretary-General and the President
Rajapaksa’s joint statement of commitment made in May 2009, the President
appointed a Lessons Learnt and Reconciliation Commission (LLRC) to
‘ascertain circumstances that led to failure of the ceasefire agreement of 22
February 2002, and the sequence of events that followed thereafter until 19 May
2009’.
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activities of NGOs. While stating that there are no restrictions
whatsoever on the activities of bona fide organisations, it
recommends that screening and control of all international
organisations, international non-governmental organisations, and
non-governmental organisations be done under the supervision of
the Ministry of Defence to ensure undesirable elements will not
jeopardise national security.18 This securitisation move was put
into practice through numerous unofficial rules, including
subjecting any gathering of more than a handful of people in the
north and demanding civil society organisations provide prior
notification to the army of any meeting or workshop.
Even though militarisation has been a feature of daily life in Sri
Lanka, given the 30 year armed conflict and youth insurrections
in the south, a distinction should be made between the process
and form of militarisation that existed pre-May 2009, and
militarisation that has become an entrenched and normalised part
of life post-May 2009. Cynthia Enloe defines militarisation as a
‘step-by-step process by which something becomes controlled by,
dependent on, or derives its value from the military as an
institution or militaristic criteria’.19 Her warning that
militarisation is such a pervasive process, and thus so hard to
uproot, precisely because in its everyday form it scarcely looks life
threatening’, provides a useful framework that enables us to
identify and understand strategies used to entrench militarisation
by looking beyond the visible and most obvious to understand the
insidious and rapid militarisation that has taken place since the
end of the armed conflict, particularly in the north.20 Prior to the
end of the war, the military was not embedded in all aspects of
civil administration and civilian life, as it is six years following the
end of the war. Further, during the war, the impact of
militarisation was felt mainly in the north and east where military
action and (unofficial) rules shaped and dictated daily civilian life.
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18 Full Report of the Army Board on LLRC Observations Released, April
2013, available at http://www.army.lk/docimages/image/LLRC_2013.pdf
(accessed on 2 January 2015).
19 C. Enloe (2000) Maneuvers: The International Politics of Militarizing
Women’s Lives (Berkeley, Los Angeles, London: University of California
Press): p. 291.
20 Ibid.
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Following the end of the war systematic militarisation has been
taking place throughout the country.
Like in Colombia where President Uribe introduced the concept
of Democratic Security which expected the participation of all
citizens as agents of the state whereby security became a
‘collective effort of all citizens’,21 in Sri Lanka too, particularly in
the former conflict-affected areas, citizens were expected to
function as informants which ‘increases mistrust among
communities and lowers the possibility of solidarity and political
organisation’.22 Civil security committees constituted of civilians
and established by the police also function as surveillance bodies
for the security agencies. These groups, that have been issued
identity cards signed by the officer-in-charge (OIC) of the local
police station, are asked to report on anything of significance that
takes place in the village whether a new visitor or an event held
by civil society organisations. Including the general public in ‘the
projects and imperatives of the state’ blurs the lines between the
military and non-military sectors of society whereby the public
become an active participant in the militarisation process.23
Former LTTE combatants in particular are securitised, which in
turn is used to justify the monitoring and surveillance to which
they are subjected. The surveillance and monitoring in turn
creates suspicion within the community, which views them as
potential threats not due to their previous (perceived or actual)
involvement with the LTTE, but because they are constantly
monitored and their movements restricted by the security forces.
This constant interaction with the armed forces results in the
general population viewing these persons as military informants.
Hence, while the general population is led to believe the hyper-
securitisation of former combatants creates a secure environment
for the public, it results in creating insecurity for the combatants
and within their communities.
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21 C. Rojas, ‘Securing the State and Developing Social Insecurities: The
Securitisation and Citizenship in Contemporary Colombia (2009) Third World
Quarterly 30 (1): p. 232.
22 Rojas (2009): p. 233.
23 H. Lasswell quoted in R. M. Bernazzoli & C. Flint, ‘Power, Place and
Militarism: Toward a Comparative Geographic Analysis of Militarization’
(2010) Geography Compass 3(1): p. 160.
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The militarisation of the social…assumes a pseudo-civilian form
through the so-called civil-military relations’24 which has been
used as a means to minimise criticism of military involvement in
civilian affairs, as well as the discomfort of the local population
regarding military presence. Paradoxically, in Sri Lanka this has
taken the form of the army’s encroachment into civilian space to
exercise further control over the population, particularly children
and youth, illustrated by its involvement in the education sector in
the north by engaging in philanthropic initiatives, ranging from
providing scholarships and distributing books to students. The
military has provided military training for civilians by enlisting
school principals and state employees as volunteers in the forces,
provided leadership training programmes for those about to enter
tertiary education,25 and organised educational tours in the south
for northern school children.26 In 2013, in Kilinochchi and
Mullaitivu the Civil Security Department (CSD) even began
managing pre-schools and recruiting teachers, who were then
deployed to pre-schools as employees of the CSD.27 Following the
end of the war, the military became involved in civil
administration and governance as well. Since 2009, the Ministry
of Defence expanded considerably and became the institution that
oversaw many activities and institutions that were previously
within the purview of civilian authorities. The government also
appointed numerous former military officers to positions in the
administrative and foreign services. Until the change of
government in January 2015, the Governors of the Northern and
Eastern Provinces for instance were both former military
personnel, as is the Government Agent of Trincomalee.
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24 Montana (2012): p.110.
25Tamil leaders in the making at Kilinochchi’, Asian Tribune, 29 January
2014, available at: http://www.asiantribune.com/news/2012/01/28/tamil-leaders-
making-kilinochchi (accessed on 2 January 2015).
26Jaffna Students Make a Four Day Tour to Colombo’, Ministry of Defence
Website, 11 March 2011, available at:
http://www.defence.lk/new.asp?fname=20111103_06 (accessed on 2 January
2015).
27Navy Enlists 02 Females from Mullikulam as Teachers’, Ministry of Defence
Website, 15 January 2013, available at:
http://www.defence.lk/new.asp?fname=Navy_enlists_02_Females_from_Mullik
ulum_as_Teachers_20130115_04 (accessed on 2 January 2015).
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The role of the President in enabling and sustaining securitisation
and militarisation was crucial. While depicting these processes as
integral to safeguard the population, a paternalistic view was
adopted whereby the country was portrayed as ‘a big family living
a fraternal co-existence under the care of “the father rather than
the politician”’.28 The analytical construct of the ‘Asokan Persona’
enables a better understanding of the non-rational core of the
nation and the cult of personality that supports the creation of a
paternalistic state. This is similar to other paradigms, such as in
Colombia, where the state becomes the ‘punitive father who has
to protect his children while denying them the possibility to
determine the terms of such protection’.29 The Asokan Persona is
‘a cultural paradigm which encapsulates a relationship between a
superior and a subordinate; and which describes a superior who is
regarded as a righteous exemplary, one who is expected to
function as a source of benevolent largesse, an apical
fountainhead of status and pontifical authority and, in effect, as a
central and pivotal force’.30 Michael Roberts states that
‘Buddhism was constructed into a legitimating force and invested
the Sinhala kings with immense authority...they were also
constitutive acts of world renewal, in which the king-elect was
transformed into a god or re-renewed as a god.31
Parallels can be drawn between this description and President
Rajapaksa’s attempts to transform himself into a god-like figure
with the help of poetry and songs which hailed him as the re-
incarnation of a victorious historical king, and lavish ceremonies
that sought to glorify him.32 This god-king-father thence appealed
to the loyalty of citizens to legitimise militarisation, which was
deemed imperative due to the existence of the securitised
communities. President Rajapaksa who constructed himself as
such a figure also dispensed favours by ‘helping’ individuals and
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28 Rojas (2009): p. 232.
29 Montana (2012): p. 128.
30 M. Roberts, ‘Asokan Persona as a Cultural Disposition’ (1994) Exploring
Confrontation- Sri Lanka: Politics, Culture and History (Chur: Harwood
Academic Publishers): p.70. See also chapters by Roberts in this book.
31 Roberts (1994): p. 68.
32 At a musical show held in 2010 and organised and telecasted by the state run
television station ITN, a boy sang ‘Mahinda is our king…King Rajapaksa’s
name will be written in history in letters of gold…We owe Rajapaksa.’
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groups seek redress from the repressive effects of militarisation in
a show of benevolence and power that led to a loss of confidence
‘in the institutions of the constitutional state and the associated
representative and aggregative agencies of political society’.33
Examples include the President ordering the immediate release of
the leader of the Muslim-Tamil National Alliance (MTNA),
Azath Salley, who was detained by the Criminal Investigation
Department (CID) on suspicion of having committed offences
under the Penal Code and the Prevention of Terrorism Act.34
Sometimes this act of benevolence involved the recipient of the
favour publicly repenting their errors, as if to a deity, and
expressing gratitude to the executive. The students from Jaffna
University who were arrested in December 2012 by the army and
sent to a rehabilitation centre for allegedly celebrating LTTE
heroes’ day were released on the instructions of the President
following personal appeals by the families to the President. One of
the released students expressed his gratitude thus: “My mother
met the honourable president. We wanted to be released. We are
happy now. We will do our studies very well. We wish to thank
the Honourable President.35
Political Cleansing: The Outcome of Securitisation and
Militarisation?
The overt and insidious means through which securitisation and
militarisation have taken place, with particular attention being
paid to ensuring people could not gather together, preventing
political parties from functioning freely and targeting activists who
engage in social mobilisation, point to attempts to stifle, if not
altogether prevent, political activity, particularly in the conflict-
affected areas. Post-war, militarisation in the north and the east
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33 R. Sakwa, ‘The Dual State in Russia’ (2010) Post-Soviet Affairs 26(3): p.
200.
34 Shamindra Ferdinando and Lal Gunasekera, ‘President Rajapaksa Orders
release of Azath Salley Before Departing on Official Visit to Uganda’, The
Island, 10 May 2013.
35Two Jaffna Students Released after Parents Make Request to President’,
Centre for Human Rights & Research, 16 February 2013, available at
http://www.chrsrilanka.com/_Two_Jaffna_University_students_released_after_p
arents_make_request_to_President-5-1821.html (accessed on 2 January 2015).
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became progressively heavier, and as a result civic activism and
social mobilisation became near-impossible with civil society
organisations becoming reluctant to work on human rights issues
as it would attract excessive monitoring by the security forces. In
December 2014 in Kilinochchi even a Christmas staff party held
by a civil society organisation at a co-op hall was visited by the
military.
In Colombia, this form of ‘political cleansing’ was used with
similar intent and ‘once a region was considered “clean of
politics”’ paramilitary cadres were brought in to ‘protect the
population against guerrilla influence’. 36 Former LTTE
combatants who were released from government-run
rehabilitation centres reported that during the rehabilitation
period they were instructed numerous times not to participate in
politics or become involved with political parties following their
release. These instructions clearly only referred to involvement
with opposition parties, given that former cadres have been used
by the military in the service of the ruling party to support their
campaigns during the provincial and presidential elections.37 At
times opposition political parties have accused the government of
using former cadres to disrupt or attack their political meetings.
For example, in March 2013, a meeting held by the Tamil
National Alliance (TNA) in Kilinochchi was attacked by a group
of persons reportedly comprising former LTTE members
employed in the Civil Defence Force, members attached to the
Kilinochchi office of the Sri Lanka Freedom party (SLFP), and
members of military and police intelligence in civilian clothing.38
While former cadres are being employed by the state to monitor
dissenters, and even perpetrate violence and intimidate rights
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36 Rojas (2009): p.228.
37 D.B.S. Jeyaraj, ‘Gotabhaya Rajapaksa Discussed Northern Provincial Poll
with Ex-LTTE Media Chief “Daya Master” on 23 Others at 52 Division
Headquarters in Varani’, dbsjeyraj.com, 23 April 2013, available at:
http://dbsjeyraj.com/dbsj/archives/20522 (accessed on 2 January 2015).
38 D.B.S. Jeyaraj, State Terrorists” Carrying Lion Flags Launch Stone Attack
On TNA Meeting in Kilinochchi’, Transcurrents, available at:
http://dbsjeyaraj.com/dbsj/archives/19246 (accessed on 2 January 2015).
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activists, at the same time the ‘undead tiger’39 the ever-present
LTTE threat is resurrected regularly to justify crackdowns on
legitimate political activity, which is portrayed as action that is
aimed at renewing conflict in the conflict-affected areas. Constant
surveillance, intimidation, and harassment by the military has
resulted in self-censorship by the population who in order to avoid
reprisals adopt silence or codes that protect them in this
uncertain terrain’.40 Militarisation has created the belief that an
extensive and deep-seated surveillance mechanism exists in the
north which would take punitive measures against those who are
perceived to contravene the diktats of the military. This has
enabled the military to control the behaviour of the population
even in the absence of a visible physical uniformed military
presence. Hence, ‘the mobilization of fear’ became ‘fundamental
to the state’s security provision’.41
Fear was created very successfully amongst civil society and is
ever-present everywhere in the north and east. During the
Rajapaksa regime, activists feared their organisations would be
either taken over by the state or closed down. They feared for the
lives of their staff members and their families. They feared for the
safety of the communities and individuals they supported, and
those with whom they collaborated.
Social activism on human rights issues was most affected. For
instance, a number of organisations reduced their field visits,
which in turn limited their ability to build strong relationships
with the community, without which documentation of human
rights violations became impossible, in a repressive context in
which, without trust, people do not share information. The
deepening lack of trust within communities in the north and east
was also caused by the presence of military informants within
communities. Colombian President Uribe’s statement that ‘in
order to support our armed forces the weapons we need as
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39 The phrase used by Tisaranee Gunasekera in Re-defining patriotism as
unquestioning loyalty to the ruling Rajapakse family, Transcurrents, 12 March
2011 available at:
http://transcurrents.com/tc/2011/03/redefining_patriotism_as_unque.html
(accessed on 2 January 2015).
40 Montan (2012): p.106.
41 Ojeda (2013): p. 769
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citizens are love, trust and a cell phone’ describes the situation in
the north in particular, where the common strategy used by
military informants was to dial the number of their handler and
leave the phone line open to enable the person at the other end to
listen to the proceedings. The reluctance of many local groups to
work on issues considered controversial or likely to attract the
attention of the security forces, for instance discussions on issues
such as devolution of power, has led to the de-politicisationof
issues, most of the time adopted as a conscious survival strategy.
In this context, citizens, particularly those belonging to minority
communities, became ‘less inclined to claim his or her rights
politically and more prone to “voluntary obedience” in return for
protection’.42 For instance, in Keppapulavu in Mullaitivu in the
north, where private land was acquired by the military, it was a
challenge to find owners to undertake legal action against the
military. Although ultimately five women came forward, coercion,
intimidation and provision of incentives by the military has
resulted in only one petitioner still attending court regularly.
Further, the communitarian view adopted by the President,
‘eradicates politics by rejecting the existence of political
antagonisms; the only antagonism is located outside the
community: terrorism’. 43 In addition to the military, a number of
other entities, both state and non-state, supported the military’s
surveillance architecture, including hotels and government
officials, such as the Grama Sevaka. In the north and east, a number
of hotels are known to inform the military of events held by civil
society organisations and provide them with details of guests who
are thought to be staff of non-governmental organisations.
Organisations narrated several incidents in Vavuniya and
Trincomalee where meetings that were held were reported to the
CID leading to their arrival at the venue to interrogate event
organisers.
Despite these factors, civic activists have found ways to continue
their work, albeit sometimes in a limited way given the numerous
challenges and obstacles. Following the victory of Maithripala
Sirisena at the presidential election of 8th January 2015, the fear
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
42 Rojas (2009): p. 229.
43 Rojas (2009): p. 232.
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385
factor has somewhat lifted and activists stated they feel they are
able to hold meetings and gatherings without fear and re-start
their engagement and work with communities. Even if they
encounter military interference they now feel able to challenge it
because to some extent the rhetoric and promises of the new
President and his government have given them the belief that
there is space to counter and challenge attempts to stifle their
activities. This paradoxically underscores the centrality of the
presidential institution, in that a mere change in the occupant of
the office can lead to such a noticeable change in perceptions
about securitisation and militarisation. Yet, the highly
problematic environment created during the Rajapaksa regime
(ultimately traceable to the executive presidency), described
above, brought into being a shadow statein which unofficial
structures and processes began to be adopted as official, and even
supersede, official legal structures. The contours of the shadow
state are set out in the remainder of the chapter by drawing upon
elements of three concepts: the garrison state, the deep state
and the dual state.
Sri Lanka: The Convergence of the Garrison State, Deep
State44 and Dual State45?
The Blurring of Boundaries: Civilian or Military?
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
44 A deep state comes into being when the military enjoys high autonomy and/or
is under undemocratic civilian control. The deep state is produced through the
interaction between formal and informal institutions. Informal institutions are
not set out in writing but obtain their authority from being publicly known and
being accepted socially. Informal institutions create ‘known and accepted
behavioural structures which furthermore cannot be changed by any individual’.
Individuals abide by them even if they do not so wish because ‘in accordance
with rational calculation; the costs involved in rejecting them can only be offset
when real behavioural alternatives are available’.
45 A dual state is one where two political systems operate in parallel- the system
of open politics, ‘with all of the relevant institutions described in the constitution
and conducted with pedantic regulation in formal terms. At this level parties are
formed, elections fought and parliamentary politics conducted. However, at
another level a second para-political world exists based on informal groups,
factions and operating within the framework of the inner court of the
presidency’.
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In Sri Lanka, while securitisation and militarisation took place
due to a number of conditions that came into being as a result of
executive action, this process also led to the ‘specialists on
violence’ becoming ‘the most powerful group in society’ with
primacy given to ensuring the state was in constant readiness for
war/to face a threat.46 Harold Lasswell’s description of a garrison
state as one where ‘society’s institutions and military, economic
and political leaders are completely inter-dependent with
complementary goals and interests’,47 describes the Sri Lankan
context under the Rajapaksa regime well. In such a context there
is excessive involvement of the military in civilian affairs, greater
cooperation between civilians, business, politicians, and the
military, resulting in the breakdown of the traditional boundary
between civilian and military authority.48
During the Rajapaksa regime, the tentacles of the army extended
to involvement in development and commercial activities49 and
philanthropic initiatives.50 In July 2013, the Army Commander at
the time, Jagath Jayasuriya, stated that the army was awaiting
Cabinet approval to form an entity to undertake profit-making
ventures, including bidding for government tenders.51 The
military also became engaged in activities that fall within the
purview of civilian authorities. In March 2014, the Security
Forces Headquarters in Kilinochchi invited non-governmental
organisations to a meeting to discuss ‘progression of development
activities and to strengthen ties between this Headquarters and
civil agencies’. In January 2013, a committee in the north that
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
46 H.D. Lasswell, ‘The Garrison State’ (1941) American Journal of Sociology
46 (4): p.455.
47 M.J. Morgan, ‘The Garrison State Revisited: Civil-Military Implications of
Terrorism and Security’ (2004) Contemporary Politics 10 (1): p. 7.
48 Morgan (2004): p.7.
49Army's Most Modern Eco-Friendly 'Laya Safari' at Yala Joins Thriving
Tourist Industry’, Ministry of Defence Website, 12 October 2012, available at:
http://www.defence.lk/new.asp?fname=Armys_Most_Modern_Eco_Friendly_La
ya_Safari_at_20121210_03 (accessed on 2 January 2015).
50Army Distributes Hearing Aids for Jaffna Mass’, Ministry of Defence
Website, 16 June 2014, available at:
http://www.defence.lk/new.asp?fname=Army_DistributesHearing_Aids_for_Jaf
fna_Mass_20140616_02 (accessed on 2 January 2015).
51 Supun Dias, ‘We are investigating into the summary executions of captured
LTTE cadres as alleged by Channel 4 TV says outgoing army chief Gen. Jagath
Jayasuriya,
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387
came together to prepare development plans for 2013 was
convened at the Headquarters of the 55th Division in
Vettilaikerny, Jaffna, and was chaired by the commanding officer
of the Division.52 Instead of being viewed as interference, the
militarisation of civil administration has been internalised by
government officials, the public, the judiciary, and even
Parliament. For instance, in May 2014, the District Judge of
Mullaitivu in a letter of appreciation sent to the Secretary to the
Ministry of Defence (with copy to the Security Forces
Commander for Mullaitivu) commended the military for clearing
land on which a new court complex was to be built. The
Parliamentary Committee on Public Enterprises stated that
Rakna Arakshana Lanka Ltd, a government-owned company
established by Gotabhaya Rajapaksa, could invest funds without
obtaining Treasury approval.53 In November 2012, following the
police and army breaking up a gathering of students who were
protesting against the military entering the premises of Jaffna
University and the men’s and women’s hostels and assaulting
students the Vice Chancellor of the University met with the
Jaffna Army Commander to request the withdrawal of the army
from the vicinity of the premises. Although it was claimed the
army was called in to assist the police, it was the army
commander who made the decision regarding withdrawal rather
than the police.
In other parts of the country, in partnership with the business
community the army has ventured into commercial activities,
from arranging whale-watching tours, to opening a chain of hotels
and hairdressing salons. The army also issued public statements
on political, social and legal issues that are clearly not within its
purview. Although Gotabhaya Rajapaksa held an administrative
position within the public sector, he played a vocal and active role
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
52‘Development committee convenes at Vettilaikerny’, Ministry of Defence
Website, 29 January 2013, available at:
http://www.defence.lk/new.asp?fname=Development_committee_convenes_at_
Veththilaikerny_20130129_04 (accessed on 2 January 2015).
53Gota’s Ex-Security Personnel’s Company Can Invest Funds Without
Treasury Approval-COPE’, Colombo Telegraph, 27 November 2013, available
at: https://www.colombotelegraph.com/index.php/gotas-ex-security-personnels-
company-can-invest-funds-without-treasury-approval-cope/ (accessed on 2
January 2015).
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388
in political decision-making and even judicial decisions that far
exceeded his official powers and mandate. He has made
pronouncements on a range of issues, including calling for the
repeal of the Thirteenth Amendment to the Constitution which
devolved power to the provinces as part of the Indo-Lanka
Accord signed in 1987,54 informing a visiting delegation of Indian
MPs that a separate system of governance for the Northern and
Eastern Provinces would never be a reality,55 dismissing the
proposal to sing the national anthem in Tamil as a ‘ridiculous
idea’,56 publicly expressing his deep disappointment with India for
voting for the resolution on Sri Lanka at the Human Rights
Council in March 2013,57 blaming India for Sri Lanka’s internal
armed conflict,58 and publicly criticising an elected TNA MP for
calling for the reduction of the presence of the military in the
north.59 Similarly, in August 2013, the Chief of Defence Staff,
General Jagath Jayasuriya, made a public statement criticising a
number of academics and TNA MPs who had attended a
conference organised by the Transnational Government of Tamil
Eelam (TGTE), following which the academics were harassed by
the military.60 In another instance, in an email sent to local
journalists and international correspondents on 30th August 2013,
the military spokesperson urged them to exercise their freedom of
expression and attend the visiting High Commissioner for Human
Rights’ press conference and report the ‘true facts’ to the public.61
The army has interfered in election processes by campaigning on
behalf of candidates of the then ruling party. They have also
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
54 S. Fernando, ‘Defence Secretary repeats call for abolition of 13-A’, The
Island, 21 Oct 2012.
55 S. Fernando, ‘Separate system of governance for N&E won’t be a reality’,
The Island, 13 April 2013.
56 Singing national anthem in Tamil a ridiculous idea: Gotabaya’, Lankasri
News, 2 April 2012
57 S. Fernando, ‘Gotabhaya deeply disappointed with India’s stand’, The Island,
21 March 2013.
58 M. Srinivasan,India response ble for 30-year war: Gotabaya Rajapaksa’,
The Hindu, 22 May 2013.
59 S. Fernando, ‘GR lashes out at TNA’, The Island, 12 Sept 2013.
60Academics Harassed: FUTA’, Sunday Leader, 8 Sept 2013.
61Sri Lankan Military Does PR For Pillay’, Colombo Telegraph, 30 Aug 2013
available at: https://www.colombotelegraph.com/index.php/sri-lankan-military-
does-pr-for-pillay/ (accessed on 30 Sept 2013).
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389
engaged in acts that directly contravene government regulations.
For instance, although the Land Circular on Regularising Land
Management Activities in the Northern and Eastern Provinces
issued in January 2013 prohibits the distribution of lands until
existing land issues are resolved in the Northern Province, the
website of the Ministry of Defence reported that on 30th August
2013, the army organised a land distribution programme and
distributed land to 106 families.62 It is not known under which
legislation, circular or regulation the army derived power to
engage in an activity not only beyond its purview, but also clearly
encroached upon and usurped the authority of civilian officials.
A Personal Army or Autonomous Entity, or Both?
The centralisation of power meant that along with the President
who was Minister of Defence, his brother Gotabhaya Rajapaksa’s
appointment as Secretary to the Ministry of Defence effectively
created a political-military partnership: a partnership that
remained firmly within the control of the Rajapaksa family away
from parliamentary oversight. The description in Gotabhaya’s
authorised biography of the manner in which he was appointed
reveals the importance not only of kinship/familial ties that bound
the executive and the defence sector, but also the lack of oversight
of and checks on the President’s decisions.63 Following his victory
in the presidential election of 2005, according to this account,
Mahinda Rajapaksa walked out of the operations room after
hearing the news and ‘saw Gota standing in the corridor…And
the next thing he told Gota was, You must take over as secretary
defence’.64 Unlike in Turkey where the military enjoys a high level
of autonomy and functions as a separate entity, in Sri Lanka, the
executive and the military were not separate, which made the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
62More lands for Tamils in the North’, Ministry of Defence Website, 2
September 2013, available at:
http://www.defence.lk/new.asp?fname=More_lands_for_Tamils_in_North_2013
0902_03 (accessed on 2 January 2015).
63 Following the defeat of Mahindra Rajapaksa at the Presidential elections on 8
January 2015, a narrative is being constructed that Gotabaya Rajapaksa exerted
too much influence and while Mahinda did not always agree with him
acquiesced as he felt he could not displease him.
64 C.A. Chandraprema (2012) Gota’s War: The Crushing of Tamil Tiger
Terrorism in Sri Lanka (Colombo: Ranjan Wijeratne Foundation): p.290.
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combination a very potent and dangerous force. For instance,
prior to the presidential elections of 8th January 2015, the
opposition released a document in which President Rajapaksa
requested Gotabhaya Rajapaksa to use trusted retired military
officers to coordinate ground operations related to his election
campaign.65 To-date, details of what the coordination constituted
remains unknown. The defence establishment hence came to be
viewed, and used by the executive as an instrument of the
Rajapaksa family, which was expected to be loyal and
accountable only to them.
As David Pion-Berlin explains, the military’s political autonomy is
indicated through its aversion to ‘or even defiance of civilian
control’, with the military functioning as though it is above the
constitutional authority of the government. 66 The military
becomes very protective of its gains as it accumulates powers and
will more vigorously resist the shifting of control to democratic
authority, when their interests are very valuable and entrenched.67
As noted above, although Gotabhaya Rajapaksa had no formal
power to issue instructions to other government institutions, his
informal influence extended well beyond his officially mandated
powers. In the north where the military exercised ‘veto powers’ it
overrode decisions made by elected civilians. For instance, on 16th
June 2011, a meeting of the TNA held in Jaffna was attacked by a
group of army officers. In response to reports of the attack,
Gotabhaya Rajapaksa stated that he had received a letter from
the leader of the TNA seeking assistance for his party to engage in
political activity in the Northern and Eastern Provinces. While he
was in the process of making the necessary arrangements to meet
the TNA’s request, according to him, a group of TNA MPs who
sought to undermine the TNA leader’s agreement with the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
65 ‘Gota Picks Jayasuriya for Dirty Work at Election’, Colombo Telegraph, 8
January 2015, available at:
https://www.colombotelegraph.com/index.php/exclusive-gota-picks-jagath-
jayasuriya-for-dirty-work-at-election/ (accessed on 10 January 2015).
66 D. Pion-Berlin, ‘Military Autonomy and Emerging Democracies in South
America’ (1992) Comparative Politics 25(1): p. 4
67 Ibid.
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government held an unauthorisedmeeting in Jaffna with the aim
of derailing the national reconciliation process.68
A politicised military is also characterised by a new
professionalism, ‘which gathers public approval for its unrestricted
scope of professional action in its reserved domains…’.69 Former
Army Commander Jagath Jayasuriya while he was still in office
declared that ‘the Army has the resources available with technical
expertise. We can perform on a competitive basis because we are
effective and efficient, so we can provide a good service. The
Army is involved in almost all the services and professions that
one can offer’.70 In Sri Lanka, following the end of the armed
conflict the rhetoric of the regime, particularly of Gotabhaya
Rajapaksa, has focused on the efficiency and ability of the armed
forces to undertake and implement tasks. A number of members
of the regime, such as the then Advisor to the President on
Reconciliation, Rajiva Wijesinha,71 the then Chief Justice Mohan
Peiris,72 and the then Senior Minister for International Monetary
Cooperation and Deputy Minister of Finance and Planning,
Minister Sarath Amunugama,73 have praised the armed forces for
their efficiency. For instance, it was reported that due to the
failure of the Colombo Municipal Council to manage
Viharamahadevi Park in the centre of the city, the Urban
Development Authority, which was then within the purview of the
Ministry of Defence, had placed the park under the supervision of
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
68 S. Ferdinando, ‘GR alleges TNA split over Sampanthan’s reconciliation
move’, The Island, 20 June 2011.
69 M. Soyler, ‘Informal Institutions, Forms of State and Democracy: The Turkish
Deep State (2013) Democratization 20 (2): p.313.
70 S. Dias, ‘Army to Start Profit Making Ventures: Outgoing Commander Tells
How Wartime Force is Being Turned into a Peacetime Force, Daily Mirror, 23
July 2013, available at: http://www.dailymirror.lk/32744/army-to-start-profit-
making-ventures--outgoing-commander-tells-how-wartime-force-is-being-
turned-into-a-peacetime-force- (accessed on 2 January 2015).
71 R. Wijesinha, ‘The Role of the Armed Forces in Reconciliation’, Rajiva
Wijesinha, 29 February 2012, available at:
https://rajivawijesinha.wordpress.com/2012/02/29/the-role-of-the-armed-forces-
in-reconciliation/ (accessed on 2 January 2015).
72 N. Wijedasa, Armed Forces must be thanked for doing civilian work for free:
Mohan Peiris, outgoing AG’, Lakbima News, 3 Sept 2011.
73Govt’s decision to deploy security forces in development commended’,
Sunday Observer, 10 Feb 2013.
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the Navy. 74 Hence, instead of strengthening civil administration
and dealing with allegations of corruption in the public service,
the government uses allegations of corruption and a weak
administrative service to justify the military’s involvement.
Democratic civilian control and oversight of the military is
therefore lacking and there exist networks of patronage ‘steered
by the executive branchwhose continuity depends on effective
deterrence and compromise of the coercive state apparatus.75
The Sri Lankan defence budget for 2014 was US$ 1.94 billion,
which is two per cent of the country’s GDP. Despite the large
budget and size of the military, there is little parliamentary
oversight, public debate on national security policies, or
transparency in procurement. A report by Transparency
International found there is ‘little or no transparency on
purchases, pre-bid standards for companies to meet or on a
strategy to guide procurement’.76 Following Rajapaksa’s defeat on
8th January 2015, it has emerged that the security company
Rakna Arakshana, which was founded by Gotabaya Rajapaksa,
had imported weapons that were stored at several armouries,
including an unauthorised one, and transferred them to third
parties without proper end-user certificates.77 With regard to the
defence budget, the Transparency International report states that
the breakdown of the defence budget was made available mainly
through the President’s speech in Parliament, where it was
presented as a line item in the overall budget, with the breakdown
of procurement expenditure between the three forces also
unclear.78 According to the report, although the Auditor-General
is independent and tasked with auditing the accounts of all
government departments, certain parts of the defence budget are
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
74 J. de Silva, ‘Now Navy moves to supervise Viharamahadevi Park’, The
Island,8 May 2011.
75 Soyler (2013): p. 311.
76Sri Lanka’, Government Defence Anti-Corruption Index, Transparency
International, July 2012, available at:
http://government.defenceindex.org/results/countries/sri-lanka (accessed on 2
January 2015).
77 ‘Shocking Revelations of Deep Security State within the State’, Sunday Times,
25 January 2015, available at:
http://www.sundaytimes.lk/150125/columns/shocking-revelations-of-deep-
security-state-within-the-state-131923.html (accessed on 26 January 2015).
78 Transparency International (2012).
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393
not audited and parliamentary oversight is not provided in this
regard.79
In Sri Lanka the military was also used as a means of dispensing
patronage, particularly in the conflict-affected areas, and
bolstering the position of the ruling United People’s Freedom
Alliance (UPFA) in those areas. Institutions within the military
complex, such as the CSD, which manages agricultural farms,
have become, sometimes, the only form of steady employment for
many persons in the conflict-affected areas. In early 2013 around
3000 persons were recruited to work in the CSD-run farms
including former LTTE cadres, while Tamil women from the
conflict-affected Vanni region who were recruited into the army
were provided a permanent house, livestock, and means to begin
home gardening.
The Outcome of Securitisation and Militarisation: The Rise of the Shadow
State?
In a state where the military gains ‘increased centrality in
society’80 the political elite of the state are said to make certain
changes to the ‘fundamental practices of the state, which turn out
to be ‘dictatorial than democratic, and institutional practices long
connected with modern democracydisappear’. 81 In Sri Lanka
there existed autocratic cliques/client groups, which gathered
political support, exerted direct political influence through
hierarchical ties,82 and were loyal to a person not an institution,
resulting in the erosion of trust in institutions and the
subordination of formal procedures to a clientelist logic.83 Mehtap
yler describes these groups as constituting of leaders of the
security community and organised crime, but in the case of Sri
Lanka these groups also consisted of friends, relatives, state
officials and even elected representatives. The administrative
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
79 Ibid.
80 J. Stanley, ‘Harold Lasswell and the Idea of the Garrison State’ (1996)
Society 33 (6): p. 48.
81 Lasswell (1941): p. 461.
82 Soyler (2009): p. 312.
83 H-J. Lauth, ‘Informal Institutions and Democracy’ (2000) Democratization
7(4): p.14.
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structure was centralised and at every level authority was
integrated in a few hands,84 which in the Rajapaksa regime
consisted of client groups of a range of persons, such as astrologer
and member of the Board of the National Savings Bank,
Sumanadasa Abeygunawardena, Lakshman Hulugalle, the
Director of the Media Centre for National Security and the Head
of the NGO Secretariat who was convicted for his role in a timber
scam, Dhammika Perera, owner of casinos and Secretary to the
Ministry of Transport, Nishantha Wickremasinghe, former
planter, brother in-law of the President and Chairperson of Sri
Lankan Airlines, and Mervyn Silva, reported drug dealer, local
Mafioso and Minister of Public Relations. These groups exerted
political influence, were loyal only to the Rajapaksa family, and
functioned as gatekeepers not only to access to services and
entitlements, but also redress for grievances that should be
legally/technically provided by state institutions.
These factors point to Sri Lanka being a state that is ‘inadequately
constrained by the constitutional state from above and lacks
effective accountability to the institutions of mass representation
from below (parliament, political parties, and civil society
generally)’.85 In such a context there emerges a condition where
two systems come into existence the normative state which is
‘endowed with elaborate powers for safeguarding the legal order
as expressed in statutes’ and the prerogative or administrative
state which ‘exercises unlimited arbitrariness and violence
unchecked by any legal guarantees’. 86 There is therefore the
danger that ‘despite the normative value and safeguards of certain
legal mechanisms in terms of checks and balances, the entire legal
system can become or de facto function as an instrument at the
disposal of the political authorities’, in this case the executive. 87
The penetration by the military of the judicial system also takes
place by influencing the judiciary or through military courts. For
instance, Gotabhaya Rajapaksa’s biography says that following
the decision of the Supreme Court in 2007 that required the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
84 Lasswell (1941): p. 463
85 Sakwa (2010): p. 186.
86 Sakwa (2010): p. 187.
87 Koops and Amsterdam in Sakwa (2010): p.190.
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395
dismantling of all permanent road blocks and checkpoints as they
were found to violate the freedom of movement enshrined in the
fundamental rights chapter of the constitution, Gotabhaya
explained to the Secretary to the Ministry of Justice the necessity
of the checkpoints. The Secretary to the Ministry of Justice then
arranged a meeting between the Chief Justice and Gotabhaya in
the former’s chambers. At the meeting ‘Gota explained matters to
him and certain compromises were worked out, such as shifting of
some road blocks, and not having permanent barriers and so
on’.88 Following the end of the war, instead of trying to influence
the judiciary, the military began disregarding decisions of civilian
authorities and judicial decisions, even those of the Supreme
Court. In a fundamental rights petition challenging the
registration of civilians by the military, although the Attorney-
General gave an undertaking to the Supreme Court on 3rd March
2011 that the military registration of persons in Jaffna and
Kilinochchi districts would be stopped forthwith, people in the
north continue to be registered by the military even in 2014. A
report published by UNHCR in June 2013 states that 100% of
respondents in Mannar, 99% in Kilinochchi, 95% in Mullaitivu
90% in Vavuniya said that the military (army, navy, air force) had
registered their families.89
As has been pointed out several times in this chapter, in such a
context political and military actors create new rules ‘bypassing
the formal constitutional order’.90 For instance, during the period
when the A9 highway from the south to the north of the country
was closed, the local population in the government-controlled
Jaffna peninsula was subjected to a number of militarised
unofficial processes. They had to register their motorbikes and
even mobile phones with the military as part of the military’s
surveillance of the population. Another example of a process that
has been used since the late 1990s well into the post-war period is
the process of ‘signing-in’. In the late 1990s and from 2006-2009,
the military would confiscate the National Identity Card (NIC) of
individuals and then order them to report to the military camp to
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
88 Chandraprema (2012): p.377.
89 A Protection Assessment of Sri Lankan Internally Displaced Persons who
have Returned, Relocated or are Locally Integrating (2013) (Colombo:
UNHCR).
90 Sakwa (2010): p. 192.
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396
sign-in, weekly, fortnightly, or monthly as determined by the local
commanding officer. As a population that could not easily leave
the peninsula and was subject to the diktats of a military that
consisted mainly of members of another community that did not
speak a language they understood and viewed them as potential
LTTE suspects, civilians had no option but to abide by the
unwritten rules put in place by the military, as there were no
viable alternatives.
Like in the deep state, in Sri Lanka a symbiotic relationship
existed between organised crime and politicians and even
Ministers who were known to be engaged in organised crime, or
whose staff were known to be engaged in organised crime with
some having prior convictions for such offences. 91 The blurring of
the official/personal boundary fostered impunity as politicians
were able to deny any responsibility or knowledge of crimes
committed by these persons on their instructions by claiming they
are not staff members. Minister Mervyn Silva was accused by
members of his own party of being involved in prostitution, drug
peddling, and even the murder of another member of his party
who was a local councillor, while in 2011, one of his co-ordinating
secretaries was arrested for his alleged involvement in extortion
activities. Former Deputy Inspector General of Police Vass
Gunawardena is being prosecuted for his involvement in several
cases involving extortion and murders. Since the defeat of
Mahinda Rajapaksa in January 2015, evidence of the involvement
in the drug trade of parliamentarian, Duminda Silva, has begun
emerging, including reportedly receiving Rs. 2.5 million per
month from drug lord Wele Sudha in return for providing
protection to his drug business. Duminda Silva was the
Monitoring MP for the Ministry of Defence and was known to be
close to Gotabhaya Rajapaksa. This state of affairs is echoed by
the 2012 Transparency International report which states that ‘the
police-military-politicians-drug dealers, is a nexus that is difficult
to separate. There have been cases where the Defence Ministry
has protected and defended his [Silva’s] identity although several
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
91 The boundaries are blurred as there are no formal or transparent methods of
appointment and state funds are commonly used to financially compensate even
unofficial staff members.
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397
reports have alleged his involvement with drug dealers, and
organised crime groups’.92
One of the most important and illuminating examples of the
informal structure taking precedence over the formal, and
functioning in an open and brazen manner, is the Presidential
Task Force (PTF). The PTF a 19-member Presidential Task
Force for Resettlement, Development and Security in the
Northern Province was appointed by the President in May 2009.
The PTF has no Tamil member, but it includes the Secretary to
the Ministry of Defence, the Chief of Defence Staff, Commanders
of the Army, Navy and Air Force, and the Inspector General of
Police. The press release marking the occasion states the PTF was
appointed by the President according to Article 33 (f) of the
Constitution, which is a catch-all provision that contains the
residual powers of the President. Along with specific tasks such as
presiding at ceremonial sittings of Parliament, declaring war and
peace, and receiving and appointing ambassadors and high
commissioners, the provision gives the President the power ‘to do
all such acts and things, that are not inconsistent with the
Constitution or written law’. Hence, the extent of the powers of
the PTF and their legal basis were unknown. The PTF was
mandated to prepare strategic plans, programmes and projects to
resettle internally displaced persons, rehabilitate and develop
economic and social infrastructure of the Northern Province.
Although the PTF was supposed to report back in one year,
giving an indication it was a temporary institution, the PTF
evolved into a seemingly permanent structure that controlled and
monitored the work of the non-governmental sector in the
Northern Province until May 2014. Its working methods and
regulations were not public and non-governmental organisations
that had to submit their work-plans and projects to the PTF for
approval had to often do so blindly, without any knowledge
whether they were submitting the required documents.
Organisations were often denied approval or given approval for
very short periods, i.e., approval is given for a period less than the
lifetime of the project forcing them to approach the PTF for
renewal of the approval.
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92 Transparency International (2012).
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398
The PTF functioned like the civilian vetting organisation of the
Ministry of Defence and projects submitted to the PTF were
approved only subject to approval by the Ministry. There have
also been recorded instances in which the Ministry of Defence has
requested local organisations that sought PTF approval to re-
submit applications without the inclusion of the names of certain
individuals within the organisation since those persons were noted
by the Ministry to have engaged in activities adverse to national
security.
Conclusion
Following the end of the armed conflict in May 2009, the
securitisation of the certain communities and identities took place,
with militarisation being depicted as the only means of staving off
the threat posed by these groups. However, while militarisation
was portrayed as the best strategy to deal with securitised
communities, in reality securitisation was used to justify and
legitimise militarisation. The executive presidency, with few
fetters and restrictions on its authority, played a key role in these
processes which led to the creation of unofficial structures and
processes, which while existing alongside official and legal
institutions, laws and processes, usurped their authority. The
executive created an environment conducive for securitisation
and militarisation, mainly through the use of emergency powers,
which enabled the emergence of unofficial rules and processes
that remained even following the lapse of the state of emergency.
The dual processes of securitisation and militarisation had an
adverse impact on particularly the conflict-affected communities,
as they deliberately undermined and controlled political activism
and activity in these areas. In this context, a shadow state, that
functioned in parallel to the official, normative state came into
being, thereby further eroding democratic principles and
practices, and centralising power within the executive.
... Prior to the end of the war, the impact of militarization was felt mainly in the North and East, where military action and (unofficial) rules shaped and dictated daily civilian life. Although following the end of the war, systematic militarization has occurred throughout the country (Satkunanathan 2014), this chapter focuses on the North. ...
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We are investigating into the summary executions of captured LTTE cadres as alleged by Channel 4 TV says outgoing army chief Gen
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