Columns - FOCUS On Rights

Dictatorship in the guise of democracy?

By Kishali Pinto Jayawardene

Defence Secretary Gotabhaya Rajapaksa's strident outburst this week against dissenters in the media underscores the fact that we now live in a dictatorship cloaked in an exceedingly thin guise of a democracy.

Who determines as to who is a terrorist?

Objectively evaluating the interview conducted on national television, one would conclude that the Defence Secretary did both himself and his brother, President Mahinda Rajapkse, considerably more harm than good. The Defence Secretary's largely measured tones when discussing about the war and military victories, gave way to a shrill and even hysterical denunciation of the media at a point, freely categorizing anyone who pointed the finger at the government in regard to media repression, as being a terrorist. The tone and tenor of these remarks were unfortunate at the least and highly condemnatory at the most.

The contempt showed for the law was significant. For example, it was asserted by the Defence Secretary that they had to allow Parameswari, (categorized as a terrorist), to go free. However, this was the very same Parameswari who had been freed upon intervention by the Supreme Court and against whom the government had no actual evidence to indict, to all intents and purposes. So, the question becomes moot; on what basis are these allegations of terrorism being made? Who determines as to who is a 'terrorist'? Is it the Defence Ministry or is it the courts of law? Surely in instances where the relevant investigative and legal machinery has been invoked, these are matters to be decided by the courts? This is what the Rule of Law is all about, after all. And when accusing fingers are pointed at the government for the attack on MTV or the assassination of Sunday Leader editor Lasantha Wickremetunge, the government can move to arrest their accusers under emergency regulations. But to whom do those maligned by the government turn to?

The responsibility of the President

At a different level, there are continuing arguments that President Mahinda Rajapaksa cannot be responsible for the killing of the Sunday Leader editor just as much as President Ranasinghe Premadasa was not personally responsible for the killing of Richard de Zoysa nor President Chandrika Kumaratunge personally responsible for the killing of 'Taraki' Sivaram.

This is flawed reasoning however. Let us put aside, for the moment, the justification that the orders to kill did not personally issue from the President. Yet, the executive responsibility in each of these cases emanates from elsewhere. It does not emanate purely from being the head of the Government and of the State. On the contrary, the responsibility stems from allowing an environment to flourish where killings, intimidation and the silencing of dissent is tolerated, condoned and thereby implicitly encouraged. In the current context, it stems from allowing the President's senior advisors to categorise those who oppose the government in any way whatsoever as terrorists. It stems from allowing the website of the Defence Ministry to continually publish the names of lawyers appearing for suspects under the Emergency Regulations and the Prevention of Terrorism Act, as traitors. Executive responsibility is underscored by all these factors.

Politicisation of the police and the prosecution arms

In this climate, to call for the police to investigate independently or indeed, for the prosecutors to indict independently, amounts to sweet nothings. As long as state policy is to crush all opposition and as long as the police and the prosecutors remain subservient to the political executive, we really cannot expect anything to be different.

Attempts have been made by some this week to enumerate the long list of unsolved political assassinations and thereby argue that all these killings are unsolved and the perpetrators not punished. Ergo, we should not be surprised that the investigation into the Wickremetunge assassination would be inconclusive. Or so, the argument goes.

Yet again, such reasoning is fundamentally fallacious. It was precisely due to decades of absolute failure of the investigative and prosecutorial machinery that the 17th Amendment was passed in 2001. During 2002-2004, it certainly had a positive impact in insulating the police force from the more egregious forms of political interference. Obviously this constitutional amendment was not perfect but any creases in the fabric of its implementation could have been smoothed over by a harmonious working together of the relevant institutions.

The importance of 'breathing democratically'

Such arrangements have worked perfectly well in other jurisdictions. For example, the United Kingdom's Independent Police Complaints Commission (IPCC) established by the Police Reform Act of 2002, is a non-departmental public body which is government funded but operates completely independently. Its credibility is secured by the independent quality of its investigative staff and the direct disciplinary control that it exercises over offending police officers. Though the IPCC has been occasionally critiqued, there is wide consensus that its efforts have been to the good in the context of increased police surveillance and investigations in the UK's own 'war against terror.'

We however, have failed in this respect due to the absolute inability of political leaders to release power from their rapacious grasp. Currently, we are told that there may be political consensus within the coming weeks in establishing the Constitutional Council (CC). But such promises have, after all, been floating in the air for quite some time now. Further, there is no point in grudgingly allowing the CC to function, only to obstruct and hamper it at every point. Instead, the political executive must learn that this change is essential for our systems to breathe democratically. If such self realization does not come voluntarily, it must be forced. And this lesson holds good for the opposition as well as the government.

Dismantling the sub-culture of repression

Presently however, the burden of proving its bona fides in democratic governance rests heavily on the Presidency and cannot be satiated by social meetings with lawyers and editors or by empty reassurances. The sub-culture of repression that lies beneath the smiling face of the Presidency must be dismantled. In the alternative, President Rakapksa is as guilty as if he is personally issuing the orders to intimidate, repress and assassinate. And we would be living in a society as intolerant of dissent as that totalitarian regime once ruled over by the Liberation Tigers of Tamil Eelam in Kilinochchi. There is really no escaping this fact.

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