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Manipulation of the rule of law is the order of the day


J.C. Weliamuna

Chrishantha Weliamuna
”At the same time, they have planted political stooges at every important position that can influence the public thinking. This includes everyone from the vice chancellors of the national universities to heads of important public institutions and even principals of prominent schools. Appointing ex-military personnel as well as serving officers to important civil administrative positions is also part of this strategy. By doing so, the government has quite effectively prevented any public debate or discussion on human rights, democracy, corruption, rule of law”

Jayasuriya Chrishantha Weliamuna – better known as JC Weliamuna – is a leading constitutional and human rights lawyer, who has been active in the field of human rights for almost two decades. He is the former Executive Director of the Sri Lankan chapter of the Transparency International (TISL) – the global coalition of civil society organisations working against corruption. As the head of the TISL, he drew the wrath of the government for exposing serious corruption scandals and appearing in highly sensitive cases involving human rights violations. In September 2008, he and his family survived a grenade attack on his residence in Colombo.

Speaking to JDS, he shrugs off threats as a less important matter. ‘I rose from humble beginings in rural down south to become a professional. It’s my duty to stay and fight’ he says. In 2010, he was elected to the Board of Directors of the Berlin based Transparency International. Currently he serves as a convener of the Lawyers for Democracy (LfD), apart from playing an active role at the forefront of the human rights movement in the island.
Excerpts from the interview follow:

JDS: The continuous attacks on judiciary, including the physical attack on Secretary of the Judicial Service Commission (JSC) can be seen as an open manifestation of a cold war brewing between the judiciary and the Executive. Despite such views, the government has categorically denied any such involvement in the attack. Any comments on government’s denial?

J.C. Weliamuna: In my opinion, it was quite obvious who and what paved the way to this ugly scenario. There is no point of trying to sweep the obvious evidence under the rug. For example the physical attack was undoubtedly a result of the differences emerged between the Judicial Service Commission and the Executive. The Executive president himself accused the Secretary of the JSC as the main culprit responsible for fanning such differences and then within days he got beaten up. You don’t need to be a genius to put two and two together if you have the basic intelligence to figure out the the way politics work in Sri Lanka. When the Executive president of the country threw unsubstantiated accusations at JSC Secretary for committing various ‘malpractices’, the consequences can be easily predicted. President’s comments clearly indicated that there is an open desire to tame and subjugate the entire judicial system. Before the secretary was attacked, the assailants have asked whether he is the ‘JSC guy’. The message hidden behind this question was absolutely clear: it simply means ‘don’t mess with us!’

JDS: Nonetheless, the stand off between the judiciary and the government didn’t last long and it even appeared as if the judiciary itself wanted to sweep the issue under the rug. Why the reluctance?

JCW: I don’t think it has entirely died down yet. This sort of fluctuations are quite common to many other struggles as well. Sometimes, we are compelled to act according to conditions laid down by specific situations. It doesn’t mean that we have abandoned the struggle. But, here we need to realize one important fact. Just like people involved in other professions, the legal professionals also have their own political loyalties. There are people who are politically close to the president and the government, despite their involvement in the legal field. Such political differences can create inevitable obstacles and delay certain actions. But relatively speaking, a whole lot of legal professionals have have agreed to act in unison as a result of the worsening situation.

JDS: What about the Bar Association (BASL)? Why so much foot dragging without taking any concrete steps, if the source of the threat is so obvious?

JCW: I think the BASL has stated its position. For example, following the attack on Secretary of the JSC, the BASL took a clear stand by demanding to finish the investigation within one month. Apart from the BASL, there are other groups of lawyers, who are independent. They also have taken a tough position with respect to the rising tide of repression and intimidation. The government is desperately trying to cover up the whole scandal by all means possible. They cannot unnecessarily prolong the investigation just like they use to do on other cases, since this is a clear violation of the independence of the judiciary and the legal profession.

JDS: The whole controversy centred around the judiciary provides ample evidence of the ongoing political manipulation and the true state of rule of law. What lies ahead?

JCW: When you say ‘Rule of Law’ it contains a conceptual as well as a legal sense to it. Rule of law primarily means a system where everyone will be governed by the law and not by the rulers. And it also means that there can’t be any room for impunity. That is most general and fundamental interpretation of the concept of rule of law. In Sri Lanka our experience is that there is a certain group of people who do not come under any law and live beyond the authority of any law. Their actions are never subjected to any investigation or judicial inquiry. One can be assured of enjoying such a privilege if he or she is politically close enough to the regime. There is a clear ability to either completely prevent or to manipulate any investigation in favour of such people. They can be politicians or even criminals. But if they are loyal to the regime, they can get away without facing the consequences of their criminal acts. In the same manner, there is also a possibility to initiate bogus investigations based on false accusations against any person government dislikes.

Take the example of the independence of the police. Most of the countries with strong democratic traditions, normally have the police force under a civil authority while the military will be activated in a time of war or an emergency. Otherwise the military will be confined to barracks. In Sri Lanka, we all know that hasn’t been the way the things are done. The military doing policing work exposes the true state of rule of law – because the proper implementation of rule of law requires these two institutions to be separated. The absence of such fundamental conditions shows the level degeneration.

JDS: Apart from the situation involving the judiciary, what is your impression of the current state of human rights in general?

JCW: During the last 5 to 6 years, the government’s record on human rights has significantly worsened. Even though many expected certain improvements, at least after the war, in reality it has further deteriorated. What we can see now is the changing of the dimensions of the violations. Earlier the violations were always related to abductions, minority rights violations, curtailing freedom of expression etc. Now the violations continue in a different form. On the top of that, the other disturbing development is the increased militarization of civil administration. If we consider the freedom of expression, for example, despite the fact that so many journalists have been abducted or killed and media institutions attacked, no single investigation was conducted, simply because the government is not keen to investigate. As a result, some of the journalists were compelled to leave the country and those who remained in the country have to do their writings under enormous restrictions and limitations in order to avoid being branded as traitors. Therefore, in general I would say the rights environment has further degraded and none of us can see a single sign to believe that there would be any positive improvement. Such positive improvement seems absolutely impossible when the government view the concerns for human rights as an obstacle to implement their agenda.

JDS: Regardless of such allegations, the government keep denying any violation or wrong doing. On the contrary, they keep insisting on the remarkable post war achievements spreading to every aspect of public life, which include establishing effective mechanisms to safeguard human rights. How would you respond?

JCW: To say the least, the rights record has not improved at all. Nevertheless, the government would say that there are no human rights violations taking place, because the government is mindful of the fact that Sri Lanka has become a target of severe criticism due to government’s own misconduct. Therefore, for obvious reasons, they are determined to block such adverse publicity and to promote their image. Such objectives become essential when they expect to achieve a rapid growth in foreign investment and to reset their diplomatic relations with other members of the international community. But anybody who is going to believe such propaganda would inevitably end up being complicit to ongoing right violations.

As people who live inside the country, we know what the ground reality is. In my view, even right at this moment, the dissenting voices are absolutely unsafe. The fact that few courageous people are still determined to take up issues does not mean the dissent is allowed and safe. Furthermore, actions of such exceptional people does not mean, that every one in the society can take up such issues in the same manner and their safety can be guaranteed. The truth of the matter is that the entire state mechanism is basically organized to crush any sort of dissent.

JDS: As you said, there appears to be a considerable attention towards Sri Lanka on the international level, which has been interpreted by the government as an international conspiracy against a sovereign state. At the same time though, such international powers seem to be promoting government’s own prescriptions, such as the recommendations of Lessons Learnt and Reconciliation Commission (LLRC) and thereby providing a certain legitimacy to such mechanisms. This was reflected even in the recent resolution passed during Geneva human rights council sessions. Do you think that the LLRC recommendations have the potential to resolve the deep seated political issues?

JCW: The LLRC recommendations are basically dealing with two things. The first set of recommendations deal with the last phase of the war to some extent, focusing on accountability and similar issues. Secondly, they deal with the issues concerning the rule of law and governance. I think the reason the government seems to be quite hostile towards the recommendations is mainly due to the latter aspect of them. Because the government knows well that if they are to implement those recommendations, the government will fall. Because they cant go on with their manipulation and repressive actions if they act according to the recommendations.

The difference is this: the first set of recommendations concerning the accountability issues goes beyond the jurisdiction of the country and anyone who understand the human rights law would know it. But if we want to discuss the Geneva resolution, we need to understand that the whole process did not happen overnight. It has its’ own history. About one year ago, a Cabinet Sub-committee was appointed to look into the interim recommendations of the LLRC. But it didn’t go beyond that as the government virtually didn’t take any concrete steps to implement them, even though they kept promising the international community that they would take necessary measures. Generally speaking, Rajapaksa government is quite keen on giving promises nationally as well as internationally, despite the fact they don’t have any intention at all to fulfil them. The Geneva resolution was a consequence of such broken promises. In my opinion, the resolution has far reaching consequences both nationally and internationally. The government’s response to the resolution is two fold. On the one hand the government maintains a position insisting that the resolution threatens the sovereignty of Sri Lanka and therefore unlawful. On the other hand they argue, the resolution should not have been brought at all, since it negatively affects the Sri Lanka’s ongoing reconciliation efforts.

Now the legality of the issue is very clear. If you are a party to any international convention, you are bound to act accordingly. It’s a legal obligation which is based upon certain provisions of international law. Second thing is, whether such a resolution will provide any help to the implementation of the LLRC recommendations – I believe it would certainly do so. The fact that now there is a third party watching over the whole process cannot be simply dismissed as insignificant. The government has not demonstrated any genuine willingness to push the reconciliation process as far the war affected population in the north-east is concerned. The best example is the land issue in those areas, which is now quite well known. The government has a clear political agenda which has nothing to do with resolving the ethnic conflict.

JDS: In that context, do you believe that besides rule of law aspect, the LLRC recommendations do not address the root causes of the conflict which it claims to be dealing with?

JCW: I have a different view on the LLRC report and I totally accept your right to hold a different opinion. Given the history of the ethnic conflict – at least when you consider the last 10 to 15 years – I think this is ‘the’ most important document. Although the government is trying to disassociate itself with the content of the report, it came from a commission which was appointed by the government. When it comes to the last phase of the war, of course they have not gone into detailed recommendations for obvious reasons. I know that they have said that the military is not involved in abductions, killings and so on. Nevertheless they have emphasized the need for an investigation. Therefore to that extent I think the commission has put forward some positive recommendations and increased the pressure on the government to hold an independent investigation. We all know that the government is highly reluctant in taking any such step, as far as an independent investigation is concerned. But still I think more pressure should be exerted on the government to initiate some form of independent investigation where the framework and the method of investigation cannot be manipulated.

JDS: Although the serious issues you raise concerning democracy, rule of law, fundamental rights etc. have become more and more important, mainly the Sinhala masses living in the south of the island remain indifferent and apathetic. There seems to be a huge gap between the gravity of such issues and the public awareness. Any comments?

JCW: It’s a political issue. The way it must be handled can depend on the specific situations and it also differs from country to country and from region to region. However, as far as Sri Lanka is concerned we know that the government is extremely sensitive to any criticisms regarding such issues, even though they have now got two third majority in the parliament. The reasons are quite obvious. They know all these debates and public challenges can threaten their very survival. Therefore the government has effectively prevented any such discussions reaching the general public by controlling the free flow of information. They are doing it not only through state media – which are totally dependent on manufactured lies – but they also manoeuvre most of the privately owned media as well. Furthermore, they have prevented some of the civil society organizations working in rural areas, getting involved in any sort of political activity, so that such issues will never be discussed.

In the same manner, the government has blocked any sort of public awareness campaigns, including human rights education for public servants, in any part of the government. Any such activity will be closely monitored by the police and intelligence agencies. At the same time, they have planted political stooges at every important position that can influence the public thinking. This includes everyone from the vice chancellors of the national universities to heads of important public institutions and even principals of prominent schools. Appointing ex-military personnel as well as serving officers to important civil administrative positions is also part of this strategy. By doing so, the government has quite effectively prevented any public debate or discussion on human rights, democracy, corruption, rule of law etc.

The answer lies in the ability to wage collective action. Also it should be noted that the collective action should not be limited to the national activities. Instead, the actions outside the country should also be coordinated with internal actions to make it more effective and powerful.

JDS: You have continuously become a target of state sponsored hate campaigns apart from facing serious physical threats in the past. Regardless of such threats, you have been increasingly involved in civil and political activities through out the recent past. How do you cope with growing threats?

JCW: It is important to realize that the most effective battle can be fought on the battle ground. In the same way, for me, the most effective way to fight for democracy is to put up a fight on the ground. When you keep resisting, the governments will also be compelled to change their aggressive strategies. As there are certain political realities the government cannot ignore, they too have to consider pros and cons of their actions. That is why some of the activist have not been so far intimidated despite their increasing involvement in raising political awareness among the public. This does not mean that the government is willing to change their way of thinking. But there are unavoidable realities that they should also take into account.

Despite being threatened and intimidated, the reason I decided to stay and fight is because I see it as a social responsibility as well as a moral duty. As a beneficiary of the free education system in the country which helped people like me to become professionals, we don’t have a right to stay silent when the fundamental rights of the people are being gravely violated. We need to create a country which is worth living in, not only for us, but for the future generations too.

Kithisiri Wijesinghe worked as a journalist attached to several Sinhala language weekly newspapers and periodicals including Ravaya, Mawbima and Diyesa journal. In March 2008 – while working for the news website – he was arrested by the Terrorism Investigation Division (TID) along with senior journalist J.S.Tissainayagam, and detained. He now lives in exile in Europe. | Photo courtesy: Kalpa Rajapaksha


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