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Monday, May 20, 2024

The losing of collective sanity on an advisory report

If the Government says that it is flawed as it has been quick to do, surely would not the simplest option have been to issue a sober and calm denunciation of its contents and findings without all this unseemly hysteria?


By Kishali Pinto Jayawardene

Could anything have betrayed our desperation more clearly than the shrill caterwauling that we hear from the Government on the possible (formal) emergence of the report on Sri Lanka by the Advisory Panel of the United Nations Secretary General (UNSG)? If the Government says that it is flawed as it has been quick to do, surely would not the simplest option have been to issue a sober and calm denunciation of its contents and findings without all this unseemly hysteria?

Rational engagement and unseemly lamentations

True, perhaps a more rational engagement with the Advisory Panel might have averted the emergence of this report as this column argued last week. It is absurd to claim that such an engagement would have been tantamount to accepting the legitimacy of the Panel. Communications would have been via the UNSG to a member state of the United Nations. Assailing the ‘legitimacy’ of an internal Advisory Panel (which the UNSG is perfectly within his rights to establish as he thinks fit), is an oxymoron if there ever was one. Besides the same logic surely applies to meeting with the Panel and this apprehension did not seem to have deterred high officials of the government from, albeit secretly, having discussions with Panel members?  

There is also little point in bewailing the hypocrisy of international realpolitik which leads the United Nations to adopt one stance in respect of human rights violators of powerful nations and demonstrably quite another in respect of weaker states. Even first year international law students are familiar with such realities. If the Government of Sri Lanka had looked to itself in promoting a genuinely post war process in which the Rule of Law was given a paramount place in relation to the minorities as well as the majority, one need not have bothered about meddlesome interventions, whether by the UN or others. But has the Government done that? Where is the evidence to show that the spirit and substance of democracy is flourishing in this country? Have we not lost even the little democratic space that we had earlier as a result of the 18th Amendment which entrenched Presidential authoritarianism with a vengeance?

Political will to restore democracy more effective if evidenced
Effective political will in returning this country to democracy would have protected the Sri Lankan nation and defeated the misleading rhetoric of the pro-LTTE lobby far better than the vitriolic abuse unleashed on all and sundry by the government’s propagandists, (embedded or not in the private media), whose sensitivities appear to be easily and rather hilariously touched when referred to as such.

So we revel in being hysterical. And the wildly alternating reasons issued by the Minister of Eternal Affairs as to why the UNSG’s advisory report should not be made public, verge on the asinine. First we are told that doing so would harm the United Nations system. Then we are told that it would harm the reconciliation process in Sri Lanka. What reconciliation process, one could justifiably question, by the way? Is it reconciliation to insist that schoolchildren of Tamil ethnicity should learn the National Anthem in the Sinhala language? Is it reconciliation to systematically destroy the Public Service Commission and the Bribery and Corruption Commission and install a palpably weak Human Rights Commission? Is it reconciliation to drive a post war development process that is so monstrously plagued by corruption and refuse moreover to enact a Right to Information law?     

The Attorney General and the legal system

Does it befit reconciliation to subvert the Rule of Law to the extent that the Department of the Attorney General has now become increasingly suspect in handling ‘politically sensitive’ cases? This week, Sri Lanka’s outgoing Chief Justice was reported to have adversely commented on the withdrawing of charges by the Attorney General in cases against politicians without assigning reasons. This caution is to be welcomed. However, is this all that can be done? Does the Chief Justice who is the head of the judiciary, not possess the inherent power to ascertain if any miscarriage of justice has occurred and take corrective action? In any event, it is useful to note that Article 138 of the Constitution confers powers on the Court of Appeal to call for and examine the record of any lower court and correct a failure of justice if such is alleged to have occurred. There have indeed been instances in the past where the Court of Appeal had so acted of its own accord or had been directed towards that end by the Supreme Court. .

It must be acknowledged that even our most liberal judges have traditionally been reluctant to question the actions of the Attorney General except in very perverse cases. But this attitude must surely change, particularly when we see boldness exhibited by judges in India and the United Kingdom and even as far away as in Israel and in some African jurisdictions. The Attorney General in Sri Lanka must act (or be compelled to act) in accordance with his role as the chief law officer of the State rather than as a constitutionally repugnant defender of the Government. Nothing more will speak to a post war reconciliation process better than safeguarding the independence and integrity of our justice institutions, namely the police, the prosecutors and the judiciary. But the Government’s commitment to this has been unequivocally abysmal. Its record is worse than any of its far from angelic predecessors.       

A deficit of justice and rash propaganda
To that extent and as has always been argued in these column spaces, the question of the deficit of justice is not a matter relevant to those of Tamil ethnicity alone. This argument may be rebutted by those who contend that the State of Sri Lanka is a racist State. The point however is that the brutality of the State has been evidenced in full measure against Sinhalese as well as Tamils and Muslims. Then again, the State has failed in enforcing accountability against citizens of all races, not limited to the minorities alone. These are historical facts.

The current ratcheting up of the propaganda drive vis as vis the UNSG Advisory Panel report is cheered on by some in the belief that this will gather even more support for the administration of President Mahinda Rajapakse perceived as being victimized by Western powers. But is this administration so insecure that it needs to engage in these dangerous games even when it has resoundingly emasculated the opposition, cast the former Army Commander into jail and virtually gagged the media?  

Losing one’s voice and one’s courage
It seems fashionable moreover on the part of some to marvel at how the ordinary man or woman on the street can be duped by the government’s propaganda. But I hear more sense from the woman who comes to sell vegetables down the road than from city based professionals or academics.

In democratic systems, balances to political chicanery are provided by countervailing factors which are however singularly absent here. Many segments of the media are either intimidated or co-opted. Academia cowers as if it is frightened of its own shadow and in some unpleasant instances, as we have seen at the University of Colombo, university administrators actively pursue political agendas. Politicized or self serving professionals and academics, an ‘embedded’ media and a non-governmental sector that has lost both its moral core and its courage, are to blame for the plight that Sri Lanka finds itself in, far more than any honest and hard working labourer or farmer in the country’s villages.

In this most unsavoury mess of pottage, the report of the Advisory Panel of the UNSG appears to have collectively deprived us of the vestiges of sanity that we once possessed. Undoubtedly, these are not pleasant times to live in.


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