By Kishali Pinto Jayawardene
It appears that deceptively smooth representations, let alone outright lies on the part of this Government will not suffice to divert international storm clouds which are now gathering with greater force around Sri Lanka. Undoubtedly this has come about due to this administration’s belief that it can escape accountability at all levels of governance without incurring any consequences.
The transfer of one diplomatic representative conveniently cast as a scapegoat for the spectacularly humiliating failure of a recalcitrant administration before the United Nations earlier this year only makes the country the object of further ridicule. This is unequivocally clear.
Reason for early provincial polls
Locally, there appears to be a change in the public mood. Outpourings of rage by government propagandists against a ‘maliciously motivated West’ fall on increasingly deaf ears, if one leaves aside fanatical supporters of the Mahinda Chinthanaya. There is increased public questioning of inchoate and immature foreign policies that rely on inflammatory rhetoric rather than skilful diplomatic negotiation. Moreover, even among the ordinary people who are less than preoccupied with the niceties of foreign policy, government propaganda has little resonance. Widespread anger at the astronomical increases in the cost of living, despite corruption and extravagance by the ruling elite and their cringing sycophants depleting the public purse, has become an almost living and breathing thing.
Cannily perhaps, this is why the Government plans on holding early elections to the Provincial Councils though it has received one (preliminary) judicial set back in that regard in the North Central Province. However, official pressure to hold early polls will no doubt be brought to bear in all its strength in the coming weeks and it will be a brave court which can withstand that tide. Ludicrously, we had the Cabinet spokesperson announcing this week that the holding of early polls in the Provinces was a necessary step for the development of those areas particularly in the North and East. Such statements defy basic logic. One would have thought that the expenses incurred in holding early elections would in fact, bode the contrary. In any event, this Government takes pride in announcing that its popularity remains undiminished. So what connection do premature polls have with accelerated development policies if it has such confidence in itself?
A lack of trust in government
This change in public mood only underscores the growing absence of public trust in this administration. This sentiment reflects public perceptions at many levels. For example, for all its fanfare, the Government’s National Human Rights Action Plan (NHRAP) will be treated with derision and disbelief unless and until a clear change in government policy is manifested towards the Rule of Law. The NHRAP will certainly be paraded at Sri Lanka’s Universal Periodic Review scheduled before the United Nations later this year. But there will be no confidence in its effective implementation.
The absence of trust also underlines official reassurances (compelled by international pressure) regarding implementation of the recommendations of the Lessons Learnt and Reconciliation Commission (LLRC). In previous columns, the point was made that the LLRC recommendations were the very minimum that the government had to implement. The LLRC’s careful skirting around the fundamentally obnoxious 18th Amendment to the Constitution and the evils attached to the office of the Executive Presidency, its stress on the need for effective prosecutions while bypassing the extreme politicization of the Attorney General’s Department and the undermining of the independence of the judiciary (the proverbial elephant in the room) are all factors that we need to take into account when evaluating this Report. The LLRC’s honing in on the need for the Department of the Police to be delinked from the Ministry of Defence is a strong point. However, this remains a starting point only.
Yet even at this irreducible minimum, there is confusion worse confounded. First, constituent partners of the ruling alliance are requested to hand in their views and then we are informed that a team of bureaucrats will decide on the ‘implementation’. What was the point of all the exhaustive hearings and thousands of representations that the LLRC entertained if this was to be the end result?
Deeply flawed investigative and prosecutorial mechanisms
Meanwhile, close upon the release of the LLRC report, government spokespersons stated that investigations leading to prosecutions in respect of alleged abuses during the end stages of the war in 2009 will be conducted generally by the police and military investigators. Separate inquiries will be conducted by a court martial.
Yet there is no question that both mechanisms, as presently contemplated, are deeply flawed. In the first instance, the ability of the Attorney General’s Department to conduct independent prosecutions continues to be in question. This was concretely evidenced in the term of the (immediately) former Attorney General whose conducting of the rigorous responsibilities of his office was unprecedentedly politicized. This office had never been able to withstand the pressures of political subversion even in the past but the extent to which this subversion was manifested during recent years shocked even the routinely cynical.
The withdrawal of prosecutions against politicians accused of rape and murder and other important individuals implicated in mega corruption deals was just one facet of this pattern. The consternation that these incidents invoked was such that a sitting Chief Justice expressed concern that justice was not being served. But no concrete action was taken to reverse that trend by the head of the judiciary. Only some courageous High Court judges went some distance at least in demanding that the Attorney General give reasons for withdrawal of indictments. It will be a Sisyphean task for the Department of the Attorney General to shake off this negative image. And if at all, this can be achieved only through specific changes in prosecutorial policy, not empty press statements or reassurances that the law will take its course.
So, for example, the mere re-opening of investigations into the appalling murders of seventeen aid workers in the Action Contra L’ Faim case and the brutal murders of the Trincomalee students will not accomplish much if all the faults of the previous investigative and prosecutorial process are not visibly acknowledged and corrected. These same faults dog the prosecutions of torture victims of primarily Sinhaese ethnicity. As this column has repeatedly emphasized, it is the poor and the vulnerable of all ethnicities who are not served justice. And in the absence of state prosecutors proving their independence from government, the somewhat cosmetic recommendation of the LLRC that units of the Department should be set up in the Provinces to ‘guide and advise the police regarding criminal investigations, prosecutions and other matters touching the criminal justice system” can have little merit.
Unacceptable resort to a court martial inquiry process
The second mechanism of a court martial to inquire into members of the armed forces who have allegedly committed human rights violations is also unacceptable for several reasons. The use of military courts to inquire into extrajudicial executions and enforced disappearances is not sanctioned by international law for good reason as the military court structure is part of the same structure which condones, permits or encourages such transgressions. Consequently it is unforgivably short sighted to advance this procedure before the United Nations when the juristic branches of this world body have themselves unequivocally stated that military courts should not have the faculty to try cases relating to offences committed by members of the armed forces in the course of their duties.
As has been succinctly observed ‘if special or military courts have jurisdiction over serious human rights violations where these are rife, it is extremely unlikely that the perpetrators will be brought to trial or – if brought to trial – that they will be convicted. Such courts often use truncated procedures and lack the professional competence and independence of the civilian courts.’ (see paragraph 9 of United Nations Human Rights Committee, Comments on Egypt’s second periodic report under the International Covenant on Civil and Political Rights, CCPR/C/79/Add.23, 09.08.1993).
Our injudicious trust in the Executive Presidency
In sum, this regime appears to have discarded all commonsense in its thirst for undemocratic power. In one sense, such a result is not surprising given the incautious if not injudicious manner in which post war, many welcomed the virtual transformation of the Executive Presidency into a near monarchical entity. Questioning the centralization of all power in one individual and in one office was dismissed as cynical and skeptical speculation. The checks and balances of democratic rule were summarily dispensed with. Yet, there was nary a murmur from the citizenry.
We richly deserve what we are now reaping from the seeds of destruction that we ourselves have sowed so enthusiastically.