Shama Ams, PhD Student at the Centre for Development Studies, shares findings from his comparative case study research on post-conflict state-building in Sri Lanka, Spain and Rwanda. He writes about the role of former armed groups in promoting legal and constitutional change in post-conflict societies, highlighting five key areas where the involvement of rebel political parties is crucial.
Internal conflict remains one of the most significant security challenges of the twenty-first century. Large-scale, conventional security concerns of the cold war have largely given way to more asymmetric, dispersed, structural, and economic threats. Increasingly, the most persistent challenges to international stability grow from within borders rather than from without. In this context, it is hardly surprising that, since the fall of the Soviet Union, most serious violent conflicts have occurred within nations’ borders rather than across them. From Kosovo, Sri Lanka, and Rwanda to Iraq, Afghanistan, and Syria, internal conflict, particularly civil war, has proven to be the most tragically familiar mode through which significant violence occurs in modern society. Yet, despite their prevalence, there are crucial aspects of civil wars that remain poorly understood. While many experts have explored potential causes of internal conflict ranging from ethnicity, to state organization, state weakness or strength, regional politics, path dependency, and poverty (Rotberg 2004; Acemoglu & Robinson 2012, 372), far fewer have written about what conditions make for durable, peaceful transitions from civil war. In particular, there is a paucity in the literature devoted to the nature of legal and constitutional change in countries emerging from internal conflict. Using Rwanda and Sri Lanka as contemporary cases and Spain as a historical case, reformed constitutions, amendments and legislation may offer meaningful benchmarks by which to assess both “thin” and “thick” conceptions of governance and the rule of law before, during, and after internal conflict, especially civil wars. The nature of constitutional change is particularly important among countries emerging from internal conflict given the urgent need for a clear national vision for inclusion, reconciliation, and economic development amid a fractured governmental and social structure.
Using a comparative, institutionalist approach, I aim to explore how conflict states use constitutional reform to transform into development states, particularly among countries that have emerged from civil war, such as Sri Lanka, Rwanda, and Spain. We are interested in countries recovering from civil war, because these countries appear to be least likely to enjoy sustained stability, effective governance and prosperity. Yet, Rwanda, Sri Lanka, and Spain seem to have achieved remarkable degrees of economic, political, and social success in the aftermath of brutal, prolonged civil wars. Based on key findings from fieldwork in Sri Lanka, Rwanda, and Spain, I propose a five-pronged policy framework to approach post conflict legal reform among countries emerging from internal conflict.
- Provide a Meaningful Truth and Reconciliation Process
Based on the cases of Sri Lanka, Rwanda, and Spain, it appears that a fair and accountable truth and reconciliation process remains an important foundation for peaceful post-war coexistence. However, truth and reconciliation proceeded differently in each country after the war. In Rwanda, the Gacaca Courts served as a mechanism to handle the glut on the court’s docket after the genocide in a streamlined and accessible way. The result was a successful adjudication of thousands of serious cases by employing local knowledge, norms, and customs. In Sri Lanka, the government largely dismissed calls for truth, reconciliation, and accountability both during and after the war. When confronted by UN reports of human rights abuses, the government of Mahindra Rajapaksa claimed that the UN represented a conspiracy of Tamil diaspora to sway the international community against the Sinhalese majority and in favor of the rebel LTTE in Sri Lanka. Lack of equal accountability for crimes committed during the war has complicated relations between North and South since the end of the war in 2015. Finally, rather than confronting the reasons why war and dictatorship emerged in Spain, the framers of the democratic transition that occurred after Francisco Franco’s death in 1975 implemented a policy of silence and forgetting. Although this policy was designed to facilitate a peaceful democratic transition, it also failed to address many of the grievances that found expression during the Spanish civil war. The emergence of hardline political parties like Podemos and the unrest in Catalonia testify to the many issues that remain unresolved from Spain’s civil war, dictatorship, and democratic transition.
- Safeguard Autonomy and Land Rights in Devolved Regions
Particularly in the cases of Sri Lanka and Spain, it also appears that a generous, yet fair and balanced system of devolution forms an important foundation for peace. In the case of Rwanda, the government has remained unitary and highly centralized for centuries, thus, the question of regional autonomy plays a less important role in the nature of conflict and conflict resolution than do questions of ethnicity, identity, economics, or geo-politics. However, in the case of Sri Lanka, while the government has, in principle, provided greater regional autonomy, land rights, and independent commissions through the passage of the 13th amendment, in practice, devolved powers have either been ignored, resisted, or unfunded. This has caused many Tamils, particularly in the North and Northeast of Sri Lanka, to feel that they are under occupation by a police force and military in which they are not represented, even as they may be unable to recover land or lost property after the war. In Spain, according to the principle of café para tódos, or coffee/chocolate for all, the framers of the democratic transition inaugurated a relatively generous legal process through which regions can negotiate devolved powers with the central government. In general, the amount of powers a region can accrue, for instance, related to policing, healthcare, or the courts depends on its financial capacity to support those services. However, given the disparity in the capacity among richer regions like Catalonia, compared to relatively less-well-off regions like Andalucía or Extremadura, becoming too generous across the board has often backfired. Whereas poorer regions often petition the central government to subsidize their abilities to provide devolved powers enjoyed by richer regions, wealthier regions complain that they are being over-taxed to provide devolved powers to smaller regions which cannot afford the responsibility.
- Ensure Language Parity
Similar to recommendation two, in the cases of Sri Lanka and Spain, lack of language parity has proven to be a significant barrier to long-term peace between the central government and devolved regions. Whereas in Rwanda, most people speak either Kinyarwanda, French or English, in Sri Lanka and Spain, there are significant regional minority populations that speak a second language as their mother tongue. In Sri Lanka’s case, after decades of overt language discrimination, in 1978, the central government granted equality in the usage of Tamil in public life, the courts, and education in Article IV of the constitution. However, although Article IV affords equal status to both Tamil and Sinhalese, it contains a provision that protects the special status of Sinhalese in Sri Lankan public life. This means that while Northern Tamil’s are given the ability to speak, be educated, and access government services in their mother tongue, Article IV serves as a persistent reminder that their language is of secondary importance in the eyes of the state. Moreover, in Spain, there has been an effort through the 1978 constitution to grant language rights to devolved regions, particularly Catalonia, Basque Country, and Galicia. However, these provisions have not always been adopted in practice. For example, recent high court rulings regarding the language of education in Catalonia have alienated devolved regions across Spain, fueling calls for independence.
- Provide Inclusive Economic Growth
Inclusive economic growth remains a cornerstone for peaceful coexistence among diverse communities that have emerged from conflict. The need for inclusive economic growth and development has proven particularly pronounced in the case of Sri Lanka. Before, during, and after the civil war, the Southern region of Sri Lanka has enjoyed relatively higher levels of wealth, development and influence in government than its Northern counterpart. This means that while the country as a whole remained economically stable both during and after the war, the picture is complicated by the Northern region which was hit hardest by the war. Although the central government has provided the minimum conditions for the constitutional councils and independent commissions, it has failed to expand its development agenda to the North, and, in the case of former President Rajapaksa, has deliberately excluded the North from development projects as punishment for the LTTE rebellion. By contrast, in Rwanda, the government has fostered a nationwide, and inclusive economic development program through Vision 2020. Whereas, in the case of Spain, devolved regions like Catalonia and Basque country were not deliberately excluded from economic programs, despite concerns about taxation and autonomy. Moreover, once Spain ascended to the EU in 1986, the EU proved to be a significant equalizer for the devolved regions as the country collectively supported each region’s bid for EU infrastructure and development funds.
- Ensure Freedom of Religion and Religious Equality
Religious freedom and religious equality remain important factors contributing to peaceful coexistence among countries emerging from internal conflict. After independence, the Sri Lankan government, in many ways, planted the seeds of civil war by implementing religious clauses that either failed to acknowledge or deliberately subjected Tamils to second-class citizenship. Although the 1978 constitution provides for freedom and equality of religion, it simultaneously includes provisions which suggest that Sinhalese Buddhism occupies a special place in Sri Lankan life. By contrast, in Spain, concerns over religious freedom appeared to have been settled over time. Before the civil war erupted in Spain in 1936, the Republicans aimed to dismantle the special status enjoyed by the Roman Catholic church in the eyes of the state. The result was a significant backlash on the part of traditionalists which propelled Franco’s rise. Thus, after Franco’s death, the framers of Spain’s democratic transition consciously avoided the appearance of being anti-clerical. For this reason, although the 1978 Spanish constitution ensures freedom and equality of all religions, it also contains provisions that give Roman Catholicism special privileges with the government. In practice, this has meant that while Catholicism enjoys a special place in Spain, the country has largely remained multi-religious and cosmopolitan.