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Sri Lanka: Who is Blocking Implementation of the 19th Amendment?


( Public campaign in support of the 19th Amendment)

by Kishali Pinto Jayawardene.

The Government’s reported proposal this week that the Constitutional Council under the 19th Amendment to the Constitution should proceed to sit in the absence of the three non-political appointees to the body speaks to the farcical if not the frivolous intent underlying recent constitutional reforms.

Non-political appointments must be made
Pray, how different would this body then be from the Parliamentary Council which, under the maligned 18th Amendment to the Constitution, was mandated to examine nominations to key public sector positions and the constitutional commissions on public service, police etc prior to Presidential appointment? What actually happened, of course, is that the Council played only an ineffectual part. Decisions were taken solely at the whim and fancy of former President Mahinda Rajapaksa.

True, Presidential arbitrariness will now not be evidenced in these ‘yahapalanaya’ times. Instead, the motley political collective represented in the House would be the majority arbiter of those decisions. And as an ironic aside, one might be forgiven in reposing more confidence in the fairly reasoned decisions made so far by President Maithripala Sirisena, (as illustrated for example by the appointments made to the Presidential Commission tackling corruption), than in this quarrelsome body of parliamentarians bickering for political advantage before the next polls.

We are endlessly told that procedure should not depend on personality. But the fact of the matter is that, in Sri Lanka’s most degraded political culture, personality plays a major role in the implementation of a norm, be it constitutional or statutory. It could only have taken a Mahinda Rajapaksa, his brothers and his sons to have so ruthlessly ground the 1978 Constitution to the dust. A more enlightened ruler would have taken Sri Lanka in quite a different direction in the post war aftermath without treating the land and its people as if this were part of their personal family bounty. Even within the bounds of that problematic constitutional space that former President JR Jayawardene devised, a different Head of State would have not precipitated Sri Lanka into the crisis that it faced at the start of this year.

Misdeeds of the previous regime
That said, enough time has lapsed since the 19th Amendment was passed with all that fuss. It must now be implemented in every respect, not selectively. Prime apologists of the previous regime now sanctimoniously trying to block this constitutional amendment must therefore be treated with due contempt and exposed for who they are. This is not to say that the minority United National Party (UNP) Government is free from blame. On the contrary, as last week’s column observed, it would be hard to identify the bigger blunder in all the blunders being committed by the ruling worthies in recent times.

However, to equate these blunders with the overwhelming evils done to the country under the Rajapaksa Presidency is sheer nonsense. What happened to Sri Lanka during that period was exceptionally brutal with the prevalence of rank communalism, financial profligacy and the deliberate decimation of law and order. That those responsible have not been yet been punished indicate the political agendas at play in government as well as prevalent institutional dysfunction in regard to the police and prosecutors.

This column has repeatedly emphasized the fact that Sri Lanka’s failures of the Rule of Law are systemic. The acquittals of the accused in the horrific double murder of a mother and daughter in Kotakethana due to a flawed gathering of forensic evidence is a recent case in point. The Janatha Vimukthi Peramuna’s Anura Kumara Dissanayake is on record in stating that a political hand was behind these murders. This seems to be a reasonable inference to draw on the facts of the case. The responsibility for the failure to secure justice must rest unequivocally on the law enforcement bodies, whatever fairy tales the police may say.

Correcting politicized law enforcement
This is just one case. Similar such instances during the past decade when law and order fled to the four winds are numerous. These are not abuses committed in the heat of war (as inexcusable as these may be) but rather, cold blooded killings. Indeed the Lessons Learnt and Reconciliation Commission (LLRC) identified the breakdown of law and order very well in its harsh observations on the disappearance of a former grama niladhari and well known community activist, Pattini Razeek.

Mr Razeek, a trustee of the Puttalam based Community Trust Fund (CTF) was taken in a ‘white van’ abduction in Polonnaruwa five years ago. His body was discovered later, buried under a half-built private house in Valaichchenai. Allegations that a key government Minister had protected the suspects implicated in the disappearance and death of Mr Razeek with the intention of claiming the monies that were in the Trust were rife during that time. Despite overwhelming evidence that should have led to the apprehension of the suspects, the criminal investigation did not go far.

In its 2011 report, the LLRC pointed out that the case highlights ‘the deplorable absence of conclusive law enforcement action.’ It expressed concern as to whether ‘political interference had contributed to lapses committed by the police,’ noting the allegations that ‘political connections’ had saved the suspects from arrest. Later, one of the main suspects was arrested but released. Earlier this year, another suspect was arrested. Again, as in the Kotekathana case, the chain of custody in regard to the DNA evidence is key but family members allege that they have not been allowed access to DNA reports or the post mortem report.

Collective responsibility of Parliament
Both in the yet unresolved Kotakethana case and the Pattani Razeek case, we have a singular absence of justice. These are direct consequences of the institutional decay that occurred under the Rajapaksa Presidency. Let the Constitutional Council be properly established, even in its truncated form, bringing in its minority of non-political appointees. Let an independent Police Commission intervene in regard to supervising the Department of the Police.

This is the collective responsibility of Sri Lanka’s current Parliament. In the absence thereof, the electorate should judge those politicians responsible with exceeding severity at the coming polls.

- courtesy The Sunday Times

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