26th March 2000

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The follies of Federalism

By Kumbakarana

Sri Lankans these days are having the unenviable privilege of listening to the 'package' carol of the government and the opposition: this time sung in unison to bring in the long awaited "peace" for the country.

The federal-state saga is getting closer to reality. The new constitution about to be thrust down our unwilling throats proposes a weak central government while independent provincial states will have unlimited legal, economic and trade powers.

The fate that befell District Development Councils of 1981 and Provincial Councils of 1988 is conveniently forgotten by the powers that be.

The justification for free independent states hinges on the argument that free and liberalized trade for each region will bring in economic and political well-being to the people — a panacea for all ailments. The counter argument points out that unless the State intervenes in crucial trade matters, economic disaster for the country is a certainty.

According to this argument, capital and resources should be utilized under the guidance of the State and with safety measures dictated by it.

The United States has provided the world with ample evidence of this in recent times. Trade deals that are disadvantageous to them have not been tolerated by the State. The European Union has accused the "Anglo Saxons" led by U.S.A, England, Australia and New Zealand of sabotaging trade deals which disfavours them. China and Japan have suffered immense trade losses in these deals.

This is the stark reality of the 'global free trade' myth. A country's capital therefore cannot be available to conduct "free" trade for its own sake but rather on the needs and the dictates of a country and its government.

For years we have heard the mantra of the government and the opposition to free trade and turn the private sector into the engine of growth for the country.

How would the proposed federal states assist in this? Is it not going to create another layer of bureaucracy with its own political, ethnic and economic dimensions doubling and trebling the shackles for free trade?

Ask the small and medium entrepreneurs who have first-hand experience of corruption in the provincial council bureaucracy.

Would the federal states be capable of removing political and other barriers that are blocking free trade in this country? Or would these states have the opposite effect?

Let us look at the economic model adopted by Europe. The European Union was formed to remove all trade barriers between the member countries and allow for the free flow of capital across their borders, which would clear the path for free trade. In Sri Lankan free trade is proposed to be made in the opposite way: by making a unitary state in to a fragmented federal state.

Another example that shows the importance of the State is evident in the clear lesson learnt during the Asian financial crisis of 1996-1999, which affected the so called tiger economies of Asia.

These countries are in agreement that State controlled measures are a necessity for trade and that the State should remain firmly in control if further crises are to be averted.

Mahathir Mohamed of Malaysia analyzed the crisis as the inability of the State to remain in control due to the policies of the World Bank. The World Bank, on the other hand, insisted the crisis was one of corruption and crony capitalism. The solution according to the Bank was the further liberalization of the economies. Rejecting further aid injections from the World Bank, Mahathir is reforming the Malaysian economy with heavy State-controlled measures. Malaysia is now well on the way to economic recovery.

Likewise the other Asian nations that consolidated State power in order to solve the crisis are showing startling results.

The best case in point is China where state control is at its highest and which was hardly affected by the crisis

The proposed constitution for Sri Lanka makes the central government not only weak but also redundant. It is a total abdication of power, making the 'decentralized decision making powers' debate a mild dream.

It calls for the complete empowerment of independent states, giving them a "free for all" scenario, an invitation to spread racism like a cancer over all sectors of society. It is fundamentally a racist constitution: a firm step towards the economic and political fragmentation of the Sri Lankan state.

In the past twenty years the people of Sri Lanka have tolerated the bankruptcies of two political parties that have dragged the country into a political conflict for their own survival. The time has now come to throw these criminal politicians out and find lasting and tangible solutions to the problems facing Sri Lanka and save our nation.

Focus on Rights

Dilemma of 'disappearances'

By Kishali Pinto Jayawardena

UN Working Group on Enforced Or Involuntary Disappearances releases its report

A bare three months into the Millennium, the first evaluation report issued by an international monitoring body with regard to Sri Lanka's human rights record contains a mixed bag of bouquets and brickbats for the Sri Lankan Government. The two member mission of the Working Group on Enforced or Involuntary Disappearances reporting to the United Nations Commission on Human Rights, following its visit to the country in October last year, confronts the continuing dilemma of 'disappearances" (Sri Lankan style) in true diplomatic form.

Thus, while "…………appreciating the variety of measures taken by past and present governments of Sri Lanka to 'clarify' cases of disappearances that have occurred in the past and to bring justice to the families of the victims….", it however proceeds to outline several problematic questions that continue to be faced by the Government, making the point that many of the former recommendations made by the Working Group on previous visits to Sri Lanka have not yet been implemented. The report relates both to disappearances during the 1988-89 JVP era as well as in relation to the ongoing conflict in the North and East.

What is made immediately evident on an analysis of the report of the Working Group is the highly confidential and indeed abusively selective manner in which accountability for "disappearances" has hitherto been enforced in this country, leading to a total lack of public acknowledgement of the heinousness of the crime. This is reinforced by the fact that almost without exception, reports of Committees and Commissions dealing with such human rights abuses have been screened from the public gaze. These include the interim report of the present (fourth) Presidential Commission of Inquiry investigating disappearances, the first report of the Human Rights Commission (established in 1996) and the report of the Board of Investigation set up to inquire into disappearances that have occurred under this present Government. The three reports of the first three Disappearances Commissions have also been made available only on a very selective basis. "These reports are not widely distributed nor can they be found in local libraries"," states the UN mission. Not surprisingly therefore, for concerned citizens and human rights activists working within the country, the information provided in the report of the Working Group itself makes significant reading.

Thus, we now learn a variety of interesting facts. In relation to people who have "disappeared" during the time of the present Government, particularly in 1995, 1996 and 1997, totalling some 793 persons, including the "disappearance" of some estimated 92 cases in 1997, the highest number reported from any country in the world in that year, no Presidential Commission of Inquiry similar to the others appointed to look into human rights abuses under the previous Government, had been established. However, we are informed for example that a "non-independent and confidential" Board within the Defence Ministry investigated a total of 2,621 complaints, traced more than 200 disappeared persons and identified an unspecified number of suspected perpetrators. Until now, none of these persons have been indicted. The investigations of the Board were finalized in March 1998 without publishing the report.

The Board identified 21 cases of disappearance where "evidence has revealed sufficient facts to justify further inquiries by the police with a view to pursuing legal action against offenders". In another 134 cases of disappearance, the Board found sufficient evidence of criminal acts but could not identify the alleged perpetrators. It has recommended further inquiries by the Service Commanders to identify the offenders, with the assurance that indictments would be forwarded shortly.

Meanwhile, with respect to disappearances which occurred during the late 1980s and early 1990s for example, in particular the JVP-related cases of 1989 and 1990 in the south of the country in respect of which almost 40,000 complaints were investigated and more than 20,000 cases of enforced disappearances established by the four Presidential Commissions of Inquiry and reported to President Kumaratunga in 1997, more than 15,000 death certificates have been issued and compensation has been paid to more than 12,000 families of disappeared persons. This has been on the basis of special temporary legislation. Criminal proceedings have been initiated against 486 persons in relation to 270 cases of disappearance. In 73 cases, non-summary procedures before magistrates were started, while in 197 cases indictments were issued. Since the act of enforced disappearance is not a criminal offence under Sri Lankan criminal law, these indictments and non-summary proceedings relate to various offences, such as abduction with intention to murder, wrongful confinement, torture, rape or murder. The first of the accused, a police officer, was convicted for the crime of abduction and sentenced to five years of imprisonment in September last year.

For any concerned observer perusing all this statistical information however, it becomes evident that while measures have been taken, in response mainly to international pressure, to enforce some accountability with regard to past abuses, only very few of the suspected perpetrators have actually been convicted while some of them have even been promoted. Supervisory mechanisms set up to monitor and prevent abuses have proved inadequate.

Thus, the Working Group comments that the Human Rights Commission, which in principle could play an important role in investigating and preventing disappearances, seems to lack the necessary authority, political and financial support to carry out this task in an efficient manner.

This is in line with the observation made by Amnesty International in its 1999 report on "Sri Lanka; Torture in Custody", that the "the HRC has been slow to make a significant impact on the human rights situation in the country".

In reality, the HRC has proved totally incapable of fulfilling its role as a powerful rights monitor. Basic safeguards provided by the Human Rights Commission Law protecting civilians against arbitrary action of state officers have not been adequately policed by the Commission, one significant example being the rule that the Commission be notified of all arrests within 48 hours. This vital precaution is rarely observed while no prosecutions or disciplinary action has been taken against officers violating this rule. The Working Group comments that this provision does not appear to be widely known by law enforcement officials and is disregarded therefore in practice. It must be noted meanwhile that in April 1999, the Government announced its intention of increasing the budget of the HRC from Rs 14,235 million to Rupees 25.1 million " to support the planned expansion of scope, intensity and the focus of the Commission's activities". Irrespective of this projected expansion of its functioning, whether the Commission will prove its ambitious mandate is questionable. It remains to be seen if the revised composition of the Commission which is due to be finalised soon, will bring about any significant changes in its dynamism.

The Working Group meanwhile points out that as far as prevention is concerned, many of its earlier recommendations have not been implemented. The non efficacy of the Human Rights Commission aside, the Prevention of Terrorism Act and the Emergency Regulations, which are rightly considered as the main reason for the continuation, albeit on a much less severe level, of enforced disappearances, have not been brought into line with internationally accepted standards of human rights. Secondly, no central register of detainees has been set up.

The mission has called for immediate attention to be paid to these concerns. Its recommendation include the need to establish an independent body with the task of investigating all cases of disappearance since 1995 and identifying the perpetrators instead of entrusting the task to a Defence Ministry Board; the speedy investigation and indictment of perpetrators of enforced disappearances, whether committed under the former or the present Government; bringing them to justice by the Attorney-General or another independent authority irrespective of investigations by the police. Importantly, it has suggested the making of the act of enforced disappearance an independent offence under the criminal law of Sri Lanka and recommended further that the prohibition of enforced disappearance be included as a fundamental right in the Constitution of Sri Lanka. One awaits with bated breath the response of the government to these so excellent suggestions.

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