”These new regulations enforce an equal chilling of freedom of expression and information and constraints on general liberties. What is the practical and legal justification for this? And when we talk of post rehabilitation detainees being monitored, is this accompanied by intimidation or threats ”
Kishali Pinto Jayawardene
A State has an undoubted duty as well as a right to defend itself against present as well as imminent threats. It is understandable therefore to look askance at complaints by former cadre of the Liberation Tigers of Tamil Eelam who base their applications for asylum to Western countries on the reasoning that they are routinely checked by the Sri Lankan Army post release. What else would one expect the government and defence authorities to do? This is a reasonable question.
The stifling of legitimate dissent
Far more has been resorted to by the United States, European countries and the United Kingdom in regard to monitoring the activities of perceived or actual Islamic fundamentalists in their jurisdictions. Yet, when checking amounts to harassment or when mental or physical intimidation is evidenced, a line is crossed. In Sri Lanka as well as in other countries, there are times when this, in fact, happens. Human error is inevitable. The point is that when mistakes are made, reparation should be immediate. In its absence, wounds fester and as a Sri Lankan Supreme Court judge warned prophetically some years back in a different but still relevant context, ‘ Stifling the peaceful expression of legitimate dissent today can only result, inexorably, in the catastrophic explosion of violence some other day’ (Amaratunge v Sirimal, 1993, 1 SLR, 294, per the late MDH Fernando J.).
If this caution is judicially administered today, what would be the outcome? Apart from appropriate actions that a Government may engage in, is legitimate dissent stifled? The much trumpeted lifting of emergency regulations has been replaced by regulations under Sri Lanka’s anti terrorism law, the passing of which is open to substantive as well as procedural challenge.
These new regulations enforce an equal chilling of freedom of expression and information and constraints on general liberties. What is the practical and legal justification for this? And when we talk of post rehabilitation detainees being monitored, is this accompanied by intimidation or threats? What about the securing of their land rights? For that matter, in a scenario where land grabbing by politicians or by the military has become increasingly evidenced all over the country, are these concerns only limited to the minorities?
Bargaining with numbers
Similarly, it is not disputed that people die in war. It is ironic however that the deaths of civilians in undeniably horrific circumstances in the last stages of the Sri Lankan conflict in 2009 have been reduced to bargaining points in an unseemly propaganda race between the LTTE disapora and the government. This is driven by a sole and determined focus on the part of some to bring this country’s political and military leaders before international justice tribunals and a similarly determined effort on the part of others not to let that eventuality occur.
Naturally, on both sides, there is minimal concern for the people actually caught up in this near apocalyptic end of battle. There is little doubt though that the primary burden rests with the government and this burden cannot be satisfied merely by pointing to the numbers of those apparently rehabilitated. Even two years after the ending of conflict, when people are still left in doubt as to the fate of their sons and daughters (whether LTTE cadre or otherwise), it is time to ask ourselves as to whether this is the correct approach to follow in this much touted stage of peace and development? What does the government stand to lose by simply publishing the names of those held in detention or those who have been arrested on suspicion of terrorist activity?
Such a move would go a long way to reassure many Sri Lankans who, contrary to increasingly common opinion overseas, are not all rabid ultranationalists or just plain racists. Unfortunately however, it is the racist, anti-Western and ultranationalist point of view that generally captures the media headlines, spewed out by individuals (politicians and otherwise) who are more often than not, citizens of the same Western countries in which their children study and to which they take wing to, on taxpayers money. Regardless of these propagandists, such an approach by the government would permit the parents and relatives of the recently ‘disappeared’ to start their process of grieving instead of perpetually waiting for their loved ones to return.
Actual public opinion as against ‘polls figures’
Let us be clear on this point. The results of popular polls notwithstanding which have been dwelt upon by government spokesmen with a certain amount of glee in recent weeks, there is clear dissatisfaction emanating from ordinary people in all parts of this country in regard to the absence of governance or rather, mis-governance on a range of issues, from arbitrary land acquisitions and land grabbing to the militarization of law enforcement leading to local politicians running amok in their areas.
Last week, in the heart of the North Central province, an immaculately clad worker at a popular stop for travellers passing through, loudly expounded on his views of politicians in general and provincial leaders of the current administration in particular ‘ Politics is the best job for anybody’ he exclaimed bitterly ‘ All they have to do is to swindle. At least those who were in power earlier, both from the United National Party and from the Peoples’ Alliance did something to help the people of the area even though they also swindled. But what do we have now? Just plain and utter corruption. In the end, it is ordinary people, Sinhala, Tamil and Muslim who suffer’
What perhaps astounded several listening almost open mouthed to this close to thirty minute diatribe was the supreme disregard with which he made his views known to all and sundry in a public place, joined also by his fellow workers at various points of time. Any discerning traveller passing through Sri Lanka’s provinces, including the South, will hear the same complaint albeit with varying degrees of bitterness. Yet it is the lack of a credible opposition that keeps such rumblings in check for now, coupled with the loud propaganda that the patriotic leaders of the nation will go to the gallows if necessary to protect the brave armed forces of the country.
The failure of the elite and change through ordinary opinion
As frequently observed in this column, the failure of Sri Lanka’s elite is best illustrated by its remarkable silence when the country’s judiciary was irredeemably politicized within the time frame of a single decade by former Chief Justice Sarath N. Silva. Space need not be wasted on the many documented evils of this time, regardless of unconvincingly loud lamentations now by the former Chief Justice in his new avatar of a anti-corruption crusader that he behaved perfectly properly during that time.
Yet a passing thought invites reflection; a single individual can hardly be credited with the collapse of an entire system of justice if others had not also been complicit in this process, either through action or inaction. And if the same passion which apparently moves some among us to protest in respect of the renaming of Bagatelle Road as Wijayananda Dahanayake Mawatha, had been evidenced in reference to the systematic politicization of our judicial systems during 1999-2009, we may not have seen such an extraordinary deterioration in Sri Lanka’s observance of the Rule of Law in later years.
These are however, largely useless reflections in this day and time, give the enormity of all that has happened since then. Suffice it to be said that if a change occurs in Sri Lanka, it will not be due to the interventions of well meaning or ill meaning outsiders, the Sinhala or Tamil diaspora, the majority of which remain equally chauvinistic or for that matter, Colombo’s effete bourgeoisie or its deeply politicized intellectuals, professionals and corporate leaders. Ultimately however, it will be the ordinary working people, such as that bitterly satirical young man in Anuradhapura which, taken to a critical mass, will check this administration in its tracks, perhaps (inevitably) violently at some point in time.