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Sunday, February 25, 2024

Six years after Sivaram’s death; Rule of Law and Media Freedom in Sri Lanka

For the media, self censorship  has become the unwritten rule. No informed discussion takes place giving  different opinions and points of view to the citizenry. The huge state media sector is politically controlled by the ruling party, making them the most partisan media in the country. Thus,  citizens are left without the information that would enable  them to make informed judgments on matters that affect their lives and the lives of their  fellow citizens. That is where the democracy deficit begins

 by Sunanda Deshapriya

In just  4 days more, we will commemorate  the 6th death anniversary of  Darmarathnam Sivaram, who was  abducted and killed in Colombo on 28th April 2005.

Known as Siva among his friends and as Taraki in the media field, Sivaram was one  of the best analytical minds in Sri Lankan journalism. He was an organic intellectual, with an enviable knowledge of politics  and war.   The  foot prints  left by Sivaram in  Sri Lankan journalism has  outlived his life, and will remain with us for a long time to come.  His writings will remain as part of the history of the Sri Lanka Tamil peoples struggle for self rule. Sivaram’s writings are  fitting proof for the dictum that ‘journalists write the first draft of the history.’

He was  abducted in front of his colleagues, on a main road in Colombo. The killers were so confident  that they   carried out this heinous  crime without any hesitation or fear of being recognized or arrested.  His abduction heralded an  era of media suppression which was to continue for years to come.

Today, after six years of his death we are commemorating  not only Siva but also many other journalists and media workers who have been killed in Sri Lanka in the years that followed. In the last 6  years at least 35 journalists and media workers have been  killed in Sri Lanka. 7 journalists were abducted. Five media houses were set on fire. Number of news web sites were blocked. Hundreds of journalists were arrested, assaulted, threatened and intimidated. Over 50 journalists had to leave the country to save their lives.

There has been no war for the last two years in Sri Lanka. Has the promised liberation and freedom reached the people of Sri Lanka? Are peoples’ human rights respected and is democratic governance in place?

For an outsider, the situation in the country  may look normal. Elections are being  held. According to the IMF, economic indicators are improving. More tourists are visiting Sri Lanka. The political opposition  is in disarray. President Mahinda Rajapaksha seems to be holding on to his  popularity among the Sinhala majority.

But we all know that if  appearances constitute the truth,  then there is no need for  science and, in this case, for social and political analysis.  The North African revolutions have shown us  that the  superficial appearance of a country does not reflect the actual social – political reality.

Not a single attack against a journalist or a media institution that has taken place during the last 6 years in Sri Lanka has been investigated properly.  The culture of impunity that prevails in the country  is the iron shield under which murderers and law breakers take cover.

For the media, self censorship  has become the unwritten rule. No informed discussion takes place giving  different opinions and points of view to the citizenry. The huge state media sector is politically controlled by the ruling party, making them the most partisan media in the country. Thus,  citizens are left without the information that would enable  them to make informed judgments on matters that affect their lives and the lives of their  fellow citizens. That is where the democracy deficit begins.

Civil society is forced to retreat into submission or silence. Trade Unions, local and foreign Non Governmental Organizations have been intimidated, their staff has been attacked, some expatriates have been expelled. Overall, the  ability of these organizations to protect and expand peoples rights  has been severely curtailed. 

The government of Sri Lanka fellows the infamous theory that if you are not with us then you are with the terrorist. In practice this means that  anybody who disagrees with the Government of Sri Lanka  is  considered as an anti national  traitor.  In the discourse of war, traitors have only one fate – that is an undated death sentence.

The  draconian Prevention of Terrorism Act and  part of the Emergency Regulations remain  in force in spite of the official pronouncement that terrorism has been defeated. Under these laws and regulations, police and armed forces acquire powers that go well beyond  natural justice, rule of law and international norms and standards.

In the Tamil majority North and Eastern provinces, both governors are Sinhalese and former military commanders. Even  two years after the so-called end of the war,  the civilian administration in these areas remains under  military control. The  military presence is very visibly dominant in these areas.  People in the Vanni  cannot even have a simple extended family gathering without the knowledge of the military. Recent reports says that even to open a small kiosk, a petti kade, people in the Vanni need to inform the military and get clearance from them.  In some areas of the Vanni, the military has officially informed civil groups that it has to be informed of any  gatherings, even social ones such as weddings and funerals.   Those who were displaced by the war in the Vanni and have now been resettled  are living under a strict military administration. The estimate is that  there is one soldier for every three citizens.  Over 5000 Tamil youth are still held in captivity. 

In the Sinhala majority Southern areas too repression is common.  Protest demonstrations, marches, rallies and, poster campaigns initiated by those who oppose the government’s policies are subject to attack by pro government gangs . In recent months, these attacks have taken place while the law enforcement officers, the Police, stood by and watched.  In the Tamil majority areas this type of  political activity takes place very rarely, mainly because of the fear psychosis instilled in them by the huge military presence. Nevertheless, women in the East continue to demonstrate against disappearances, demanding justice for their loss; shopkeepers in Vavuniya continue to protest against extortion.   

For the Tamil people of Sri Lanka, and for those in the North and East  in particular, in practice, the rule of law and democracy means a political system of self rule, based on genuine devolution of power. The  post war Sri Lankan state has failed completely  to address this issue. The multilateral consensus reached by the All Party Conference on a political solution to the conflict has been discarded. The 13th amendment  to the Constitution remains a dead letter. Instead of peace, development and devolution, what the Tamil people are experiencing is militarization of a unprecedented  scale.

The Sinhala majority is being fed with stories about the greatness of the war victory day and night. Whoever wants to question the aftermath of this  so-called  victory is forced  to  shut up. Any sign of dissent is suppressed or intimidated. The carrot and stick policy is at work at  its best.

In conflict sensitive journalism, we as  reporters are encouraged to go beyond the five Ws. The 5 Ws  are as you may know Who, What, Where, When, Why: Who is it about, What happened? Where did it take place? When did it take place? Why did it happen?

Going beyond the 5 Ws is to  ask What is not reported? Who is not in the story? Why didn’t happen in another way and so on to get the multiple sides of the story. To understand Sri Lanka today we need to ask these very same questions.

Recently I had a skype call  with a Sinhalese intellectual cum journalist colleague who is very knowledgeable on the situation in the country. He said, ” Machan (Siva would have called most of us in the same way) you will not believe this. but listen.  This shows the level of military control in the country.” A high profile NGO has sent one of  its project proposals for  reconstruction of war affected villages to the NGO secretariat for approval. The NGO secretariat is under the Ministry of Defense. So the proposal went to the brigadier in charge of the area. A meeting was called with the NGO office bearers. At the outset the question the Brigadier asked was:  what is the reason for  selecting  more Tamil villages for the project. He  said that the proposal was not  balanced. The NGO tried to explain that it was a proposal for  reconstruction of war affected areas but at the end most of the activities to be carried out in Tamil areas had to be dropped.

This was not reported any where. According to professional  media  this is not a reliable news. Is there any way to verify this? Will the NGO or the brigadier will answer questions by any reporter? No. The war in Sri Lanka was named as a silent war. Today post war Sri Lanka is experiencing a much more prevalent and deeper silence on rights violations. 

To give an example of the intimidation of other voices in Sri Lanka today I would like to make a prediction. I will be branded as a traitor for the nation  for speaking here on media freedom and rule of law in the country, in memory of Sivaram.

The  practice of branding dissenting voices as traitors who are to   be eliminated  is still strong and prevalent in Sri Lanka, even two years after the end of the war. It was not long ago that two well known politicians in Sri Lanka were physically attacked for criticizing the government outside the country. Dr. Wikramabahu Karunarathna was attacked at the Airport and parliamentarian Dr. Jayalath Jayawardena was attacked in the Parliament. 

Has any one being arrested? No. And no one will be. Speaking on the attacks on Dr. Karunarathna Dr. Jayawardena two ministers made public statements saying that any one who betrays the nation,  will be taught  a lesson by the people, a people’s  justice.

Very recently a notice was posted on the gate of a news web site offfice which said:  “Let us carry forward the sacred struggle. Based on needs of foreign forces and NGO Tiger agents, Lanka e-News Sinhalese Tigers are provoking anger and hatred amongst patriots by betraying the great victory of the motherland that was achieved at the cost of tens of thousands of lives of patriots.”

Two lawyers who appeared for the news editor of that  website when he was arrested and detained  were intimidated. This is not the first time that lawyers have been  intimidated for defending the rights of the people. It was none other than the Defense Ministry web site that named leading human rights lawyers as traitors at the height of the war. One of them is today a law maker in the country: Attorney at law  M.A. Sumanthiran who was thus  named as a traitor is today a member of parliament.

Indicators for  freedom and democracy for any country are the same. These Rights are enshrined in the Universal Declaration of Human Rights and other international human rights laws and treaties. These rights are the Indicators for freedom in any country.  How far a country adheres to and implements these rights is an indicator of the people’s  freedom in that country.

Last year three UN expert groups on UN conventions  on Child Rights, on Economic, Social and Cultural Rights and on Women’s Rights, had their sessions on Sri Lanka. They  issued their observations and recommendations and  requested  the government  to publish them  in all languages in Sri Lanka. So far none of them have been given any publicity  by the government. With over 5000 cases Sri Lanka tops the unresolved cases of disappearances listed by UN working group on enforced and  involuntary disappearances. Requests for country visits by five UN Special Rapporteurs to the government of Sri Lanka has not been granted  for years.

A fundamental principle of democratic governance is separation of powers between the three arms of government: the  executive,  the legislative and the judicial.

In Sri Lanka today all powers are concentrated in one institution that is the Presidency. Even the checks and balances that were in place to make the President  accountable have  now been removed. In August 2010 the Parliament  passed the 18th  amendment to the Constitution and thereby placed the appointment of national human rights commission, judicial services  commission, public services commission and election commission under presidential powers. At the same time, the two term limit for the presidency was removed making it  constitutionally possible for one person rule the country for his decades. On  top of all these powers, the President  enjoys total immunity. These changes make Sri Lanka a constitutional dictatorship, not a democratic socialist country as stated in the constitution.

Writing on post war Sri Lanka, the prestigious New Yorker magazine said of the President: “One of his brothers, Gotabaya, is his defense minister; another, Basil, is his chief of staff and minister for economic development; and a third, Chamal, is Speaker of Parliament. His twenty four-year-old son Namal was recently elected to Parliament, and forty-odd additional brothers, sisters, cousins, nephews, nieces, and in-laws hold various other government posts” The same opinion was repeated in the US State Department’s human rights report for 2010.

There has been more disturbing news recently which may affect  local government structures throughout  the country.

The government is   creating a new administrative unit called  Colombo Metropolitan Corporation (CMC) which will include  the Municipalities of Colombo, Kotte and Dehiwala-Mt.Lavinia, Kolonnawa Urban council  and Kotikawatta-Mulleriyawa Pradeshiya Saba. This mega CMC will come under Defense secretary Gotabhaya Rajapaksha. The CMC will be the actual development authority for all these areas by passing the elected local bodies.

In other areas of the country another institutional set up called Jana Sabha (People’s Councils) will be established. These institutions will comprise local leaders and also bypass the elected local bodies in overseeing and controlling  central government development projects. 5000 graduates will be recruited on political grounds to run these Jana Sabhas  which will come under minister  Basil Rajapakse. These Jana Sabas will have wide powers including controlling decentralized budgets.

Protecting human rights is central to any democratic society. An independent  Human Rights Commission can  play a pivotal role in defending and protecting citizens’ human rights. But today the National Human Rights Commission of Sri Lanka is no longer an independent body. Its members are appointed by the President. The Sri Lankan NHRC has been down-graded   by the International Coordinating Committee of National Human Rights Institutions (ICC),  first   in 2007 and again in  2009. It remains down graded as non- independent.

Until recently there were no commissioners in the NHRC as the 17th amendment to the constitution, under which these independent commissions were appointed,  was resting in the dustbin.  President Rajapaksha appointed a new Human Rights Commission on 21 February this year under the powers vested in him by 18th amendment to the constitution. This  is what the  Friday Forum, a collective  of eminent persons of Sri Lanka had to say about the appointments:

“First, there is no transparency regarding the process by which the appointees were selected.

We understand that among the five appointees are a former Inspector General of Police (IGP), a former Government Analyst and a medical practitioner. We wish to question what human rights protection experience and credentials they bring to the Human Rights Commission. In short, the criteria that may have been used for selection is highly suspect.

We seriously question the suitability of those who have served in the police or the armed forces to serve as members of the Human Rights Commission. A large proportion of complaints received by the HRC are against excesses by the police or the armed forces. Victims of such excesses may be reluctant to come before the HRC for fear of breach of confidentiality and reprisals and, more importantly, of lack of impartiality. After all, justice must not only be done but must also be seen to be done.”

The way HRC was  appointed  is a clear sign of the way human rights and rule of law is being treated in Sri Lanka. On the other hand the silence of human rights NGOs on NHRC appointments shows the level of intimidation they face. 

The fundamental human rights of a citizen are inviolable under any situation. If their fundamental human rights are not protected, people become vulnerable to abuse and misuse of state power. But today the citizens of  Sri Lanka  have to bargain their Fundamental Rights  for freedom form custody.
A printer was arrested for printing a  poster  which depicted the president as a dictator on 8th September 2010. The printer had undertaken this printing order on behalf of  the main opposition United National Party.  At about 3 o’clock in the morning on 8 September, police arrested the printer’s wife and her two younger brothers. The police filed a case against  the printer Jayampathi Bulathsinhala,  and others after they were bailed out.

In turn the printer himself  filed a fundamental rights petition  against the police for unlawful arrest in the Supreme Court and received leave to proceed  His arrest was illegal and his FR petition had sufficient ground to go ahead.  But at the end he had to withdraw his  FR case as a bargain for the release form the case filed by the police.

A few years ago we couldn’t even think of such thing happening. The  culture of bringing fundamental rights violations to the  Supreme Court for remedial action  was strong. Today the police can drag on the case under PTA, the accused and his family may receive threats and  family and friends may be advised to retreat. Earlier printer V. Jaseharan and editor N. Vithyatharan  also had to withdraw FR cases filed by them to obtain freedom.

At the outset of   the  second term of the present President,  the Attorney General’s Department, which should be an independent institution in any democratic country, was brought under control of the executive presidency. Recently, the Attorney General withdrew murder charges against former MP  and ruling party politician Chandana Katriarachchi while the trial was on going. The AG also  withdrew rape charges against Colombo district ruling party MP Duminda Silva, who is also the monitoring MP for the Defence Ministry.

The Chief Justice  and the  former Chief Justice have openly criticised this practice of the Attorney General. According to them, the AG does not have right to withdrew cases in this manner. Will any corrective measures  be taken? Sadly, nothing will happen  because of the political power of the accused.

Ruling party politicians can get away scot-free for any crime in the country while an unknown number of Tamil detainees are languishing in prisons for more than a decade, in some cases 14- 18 years, without any charges brought against them. Clearly there are two sets of laws in the country.
Retired Gen. Sarath Fonseka, who was the common opposition candidate during the presidential election of January 2010, received 40% of the votes, namely 4.2 million votes. A few weeks after the elections, he was arrested and tried before a military tribunal and is now in prison. Other cases are pending against him. The way the cases against him are being conducted leads us to believe that this is purely a case of political persecution.

But the law takes a different route when it comes to ruling party politicians. A government minister was cleared form any wrong doing after he tied a government official to a tree in front of media coverage for not obeying his orders. Government accepted his explanation that it was a drama not a punishment! The same minister has taken the law onto himself on several occasions making governance a mockery.

Another minster  openly shouted at and chased away a Deputy Inspector General of Police  when the officer tried to protect the UN main office compound in Colombo in the midst of a anti UN agitation. The same minster told a TV channel that  all three members of the UNSG’s expert panel on Sri Lanka was bribed by the Tamil diaspora using money from LTTE coffers.

To commemorate   International Womens Day in 2009, the wife of a government minister who was serving a life imprisonment for   double murder was released.

Recently  TNA MP for Vanni, S. Sri Dharan was prevented form speaking to a visiting Al Jazeera media team by the military authorities; his vehicle was shot at within a week of that incident.
In an appeal to UN Secretary General, the Inter University Students Federations has said that 40 students have been  detained  and over 300 University students  suspended in the recent past. On a number of occasions in the recent past, dozens of political activists of opposition political formations  have been  detained by police for putting up  posters.

On the independence day, that is 4th February 2011,  a peaceful march organized by the main Opposition party, the UNP in Colombo was attacked by politically motivated thugs. Even vehicles of opposition MPs were damaged. All these attacks happened in front of the police and they did nothing to stop the attackers. UNP MP Dayasiri Jayasekara submitted  a list of names of  underworld persons who were employed to attack the UNP march to the parliament. So far no inquiry has taken place on the complaints made by parliamentarians.

Two JVP parliamentarians were also arrested and man handled by Galle police on 15 Aug 2010 for organizing a peaceful march. No action has been taken against the unlawful act of the police.
These are only few examples of how people’s right to association and expression is suppressed in Sri Lanka. The list is long and unending.

On the top of all these violations, the major rule of law challenge faced by Sri Lanka at this moment is the issue of rights violations that took place during the last phase of the war. The Panel of Experts appointed by the UNSG on the issue has submitted its report. The report calls for a independent investigation by UN as well as by GOSL emphasizing  that it has found credible allegations, which if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law were committed both by the Government of Sri Lanka and the LTTE, some of which would amount to war crimes and crimes against humanity.  The Tamil  National Alliance has already asked the GOSL to implement its recommendations.

The report also has number of short term recommendations with regard to re – establishing rule of law and democratic governance in the country. But unfortunately the Sri Lankan government  has rejected the report in total. Some 6 months ago same fate awaited for the human rights bench marks  proposed by the European Union in order to extent GSP plus tax benefits to Sri Lanka.

The unfolding events as follow up to the release of the UNSG panel report will show the world whether Sri Lanka is ready for the paradigm shift that will usher the path of  democracy, rule of law and justice or whether it will continue on the beaten path of injustice and autocracy for years to come.

This is an edited version of the Sivaram Memorial speech delivered by Sunanda Deshapriya  on 24th April 2011 in Bern, Switzerland.

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