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On collision course with the United Nations

By Kishali Pinto Jayawardene 
So now the truth is plain to see, unvarnished and appalling in its consequences for Sri Lanka. The Lessons Learnt and Reconciliation Commission (LLRC), says the Government at a press briefing this week, has exceeded its mandate and therefore only those recommendation that are ‘feasible’ will be implemented.
We will return to this question of what is meant by ‘feasible’ later on in these column spaces.

Defending the indefensible

Little would prove to be as distasteful as the sight of these Government Ministers, from the Minister of External Affairs working himself up to a froth and frenzy of righteous indignation convincing perhaps only himself, to his far more transparently uneasy ministerial colleagues, all desperately trying to defend the indefensible and explain the non-explainable.

A cornered administration, forced to abandon its lies and prevarications in the face of an unequivocal reprimand by the United Nations Human Rights Council (UNHRC), has now shown its hand and its true intentions somewhat prematurely. It does not intend to genuinely implement the LLRC’s recommendations at all.

This rude disregarding of the LLRC Report was anticipated by many, right from the day that the LLRC’s harsh undertones of ongoing violations of Sri Lanka’s Constitution and the law became clear. Notwithstanding, it is highly significant that the ruling party has publicly chosen to align itself with its nationalist partners in discrediting the LLRC. Last week’s lessons at the UNHRC showing that bluster and bullying will not work any longer have been to no avail, doubtless to the extreme pleasure of influential separatist lobbies overseas.

Speaking in the voices of Babel

Yet in complete contradiction to these statements at home, the Defence Secretary assures Japan in an overseas visit this week that there will be ‘full implementation’ of the LLRC’s recommendations. So which of these statements are correct? Does this Government intend to implement only those recommendations that are ‘feasible’ (as announced locally) or will this implementation be effected ‘in full’ (as reportedly announced overseas)?

And by the way, as opposed to the Babel of voices by his Ministers, why is President Mahinda Rajapaksa so conspicuously silent on this administration’s approach to the very Commission appointed under his warrant? Quite apart from thunderous if not wearying pronouncements that no foreign forces will be allowed to interfere in Sri Lanka’s internal affairs, does he go with what is stated by his Ministers or by what is articulated by his brother, the Defence Secretary? It certainly does not need much imagination to envisage as to why these contradictory stands emerge from the Government. But again, have we not learnt that evident doublespeak will not work any longer?

And the notion of Cabinet responsibility, on which legal precedents are galore, is laconically tossed to the winds. One Minister announces that a referendum must be held on the implementation of the LLRC proposals while another Minster summarily disposes of these proposals. This veritable circus of non-governance would be proverbially laughable if it were not so tragic.

Self serving greed and thirst for power

This administration claims repeatedly that it must consult with its constituent partners of its alliance on implementation of the LLRC’s recommendations. This is an unconvincing explanation at best given the ruling party’s stranglehold over alliance politics and indeed in Parliament itself. And much of the LLRC’s recommendations only relates to enforcement of the existing law.

Let us pose some relevant questions. On what reasonable basis are we to assume that the UPFA’s constituent partners should object to the disarming of those illegally carrying weapons, a key observation of the LLRC interim report as well as its final report and yet unimplemented? What objection can be taken to the suggestion (again also in the interim report) that a comprehensive list of detainees should be accessible publicly? One government spokesperson was heard to say that the detainees themselves do not want the list to be made publicly available. This excuse is both quaint and disingenuous. It is immediately contradicted by lawyers and activists working with detainees who can testify to the terrible plight of mothers and fathers who still traipse from camp to camp trying to ascertain the fate of their children, to be met with hostility and denial.

Even if one goes outside the strict confines of the existing law and looks at legal reform, what possible objection could there be to the enactment of a Right to Information Act? These measures would readily ensure that Sri Lanka pulls itself up from the dark quick sands into which it has fallen. Instead, greed and thirst for power drives this lack of governance. Some are heard to say that political change can be achieved through the process of regular elections.

But this is a mockery given that former Army Commander Sarath Fonseka is now in jail, essentially for attempting to challenge the incumbent President through the electoral process. Despite the twists and turns of the indictments against him ostensibly on the law, the popular (and quite correct) perception is that he is being punished precisely for being so precocious in coming forward as a Presidential candidate. Even those who did not necessarily approve of him as a viable political leader in the last Presidential elections are compelled to acknowledge this fact.

Cosmetic renaming of dependant bodies

The latest farce that we witness is the facile renaming of supine commissions by putting the label of ‘independent’ in front. Reportedly, a National Police Commission headed by a pro government lawyer and which body has proved itself to be singularly ‘dependant’, is now being labeled an ‘Independent’ Police Commission. This is to bring itself within the definition of a key LLRC recommendation regarding the immediate establishing of such a commission.

Lawyers who accept these appointments should reacquaint themselves with the fundamentals of jurisprudence as to what independence from government means. For example, the Supreme Court has reminded in a reflection well fitting for the disastrous realities of the present day, that the requirement of ‘independence’ must be guaranteed firstly through the mode of appointment, secondly, through security in tenure of office and thirdly, through freedom from governmental control in its actual functioning (Determination Re. The Broadcasting Authority Bill, S.D. No 1/97 – 15/97, 5th May 1997). Let it be said honestly that a National Police Commission appointed under the 18th Amendment and without the safeguards of the 17th Amendment, hardly satisfies these requirements even if the label of ‘independent’ is foisted upon it. This will satisfy only the uncritical, the disinterested or plain political lackeys.

Outright defiance leading to direct consequences

The Government’s declaration that it will implement only those LLRC recommendations that it finds ‘feasible’, gives rise to further interesting questions. Cynics predict that the de-linking of the Department of Police from the Ministry of Defence will fall into that category of ‘non-feasible’ recommendations. We await these determinations with bated breath.

But suffice it to be said that the mask has now been ripped away with all force. The signs are clear. This Presidency and this administration intend to defy the UNHRC and all its forces. Sri Lanka is now set on a direct collision course with the world body, giving direct impetus for the increased cry for an international war crimes tribunal in the months ahead.

Certainly we have none but ourselves to blame, as individuals, as communities and as a country.

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