by Jehan Perera
The news of the presidential pardon for former army commander Sarath Fonseka which could see him free from prison would be welcomed by most Sri Lankans, regardless of their political persuasions. At the time of his imprisonment it was scarcely possible to believe that the former army commander who had been hailed by the government as a hero for leading the army to victory over the LTTE, could be treated so soon as a villain.
But the contest for the presidency six months after the war victory saw General Fonseka fight a no-holds barred election campaign against incumbent President Mahinda Rajapaksa. It was widely believed that the fact that the general came close to victory marked him out as a political threat to be neutralised.
As the government consolidated its power after the re-election of President Rajapaksa, the fortunes of General Fonseka fell to their lowest ebb. A military court comprising senior army officers who had served under him and been subject to his discipline, stripped him of his rank, medals and pension and ordered him incarcerated for three years. In addition, legal charges were brought against him that accused him of corruption and for harbouring army deserters. There was an apprehension that he might also be charged for conspiracy to overthrow an elected government and for other offences and receive even more harsh punishment.
The government’s explanation that it was prosecuting General Fonseka to ensure that justice was done could hardly be accepted by anyone. It was evident that the rule of law had reached abysmal depths with government ministers openly making statements about their own human rights violations on behalf of the government and getting away unchallenged by any legal process. In addition, continuing abductions and disappearances have kept alive a culture of impunity and fear. There was no doubt in the minds of those who supported General Fonseka that it was the offence of having broken ranks with the government leadership that had sealed his fate.
In the context of the political motivation in the imprisonment of General Fonseka, the question is what prompted his release. Among the possible reasons given is international pressure, the General’s health problems, moves to split the opposition further, pre-empting a possible judicial release and the merciful qualities of the President. It is significant that in issuing the pardon, the President did not insist on an earlier pre-condition insisted upon by members of the government that the family of General Fonseka should make an appeal to the President. So far the indications are that no such appeal was lodged with the President.
For the past several months General Fonseka has been reported to be in a state of declining health. It was on this basis that he obtained court permission to be transferred to a leading private hospital for prolonged treatment. The government authorities attempted to transfer General Fonseka to the state-run General Hospital rather than permitting him to stay at the private Nawaloka Hospital on the grounds of security. However, the possibility of humanitarian considerations having prompted his early release from prison cannot be discounted. The government would not wish to be blamed for having physically debilitated or for causing worse damage to the health of the former war hero.
Another possible reason would be pending appeals lodged by General Fonseka in the higher courts of appeal. These were in respect of two cases in which he was jailed by court martial. The judiciary has enjoyed a degree of public confidence despite the overt politicization of other state institutions. There have been manifestations of independence on the part of the judiciary at all levels. In recent times the judiciary at various levels has been making decisions that have held the government to account. The government may have moved to pre-empt a successful bail application by General Fonseka by releasing him as a sign of magnanimity.
The timing of the pardon also suggests a governmental responsiveness to the growing international pressures upon it in relation to human rights issues. It may not be a coincidence that President Rajapaksa signed the pardon on May 18, a few hours before his foreign minister was meeting with the US Secretary of State in Washington DC. The meeting between Professor G L Peiris and Hillary Clinton was not one that the Sri Lankan government was particularly keen on, given the fact that earlier in the year it had declined a similar opportunity. At that time the government appeared confident that its alliance with countries such as Russia, China and other third world countries would enable it to defeat the US and its allies.
It is now a matter of historical record that at the March meeting of the UN Human Rights Council, a resolution was passed by a large majority of countries led by the United States over the strong opposition to the Sri Lankan government. The US position at the meeting in Washington reportedly re-affirmed the Geneva resolution that called upon the Sri Lankan government to implement the recommendations of the Lessons Learnt and Reconciliation Commission and in particular address the issue of accountability and prosecution of those involved in war crimes. Reports of the meeting between the two sides also indicate that the meeting in Washington was conducted more in accordance with the traditional norms of diplomacy and not in the contentious style of previous encounters that culminated in the March setback in Geneva.
In the discussions in Washington, US Secretary of State Hillary Clinton had asked her Sri Lankan counterpart Prof G L Peiris to make that action plan on the LLRC a public document. The US had also called for demilitarization of the north, holding of provincial council elections in the north and creating an environment in which there is more s pace for civil society to function without governmental suppression. It is a sign of immense pressure that the Sri Lankan government was under that it should have presented an action plan on implementing the LLRC recommendations without sharing it with its own people or Parliament. In the past the government has been very strong in invoking the principle of national sovereignty in dealing with allegations of human rights violations and war crimes.
The release of General Fonseka from prison will be only one commitment that is implemented. The same decisiveness that the government has demonstrated in pardoning General Fonseka and in preparing the action plan on implementing LLRC recommendations would stand the government in good stead where it concerns implementing those recommendations. Whatever the motivation for the change, the presidential pardon given to General Fonseka and the preparation of the action plan on implementing the LLRC recommendations are positive indications of the government’s confidence and willingness to chart a new direction. In particular, if the government is also willing to take up the issue of a political solution to the ethnic conflict expeditiously, the international pressure on the government is more likely to subside.