7th June 1998
Human rights-the pressure increases
By Kishali Pinto Jayawardena
Consider the arrogance of a prominent UNP minister who commented in the mid 1980's that "We do not need outsiders to teach us how to deal with things in our own country. We are masters here. We decide how rights are protected ". Eight years later, following a resounding defeat of his party at the polls, this honorable gentleman, if alive, would have had occasion to veritably eat his words. It was clear that the bullheaded stubbornness with which the former UNP government defended its human rights abuses against national and international criticism contributed in no small way to its reaping such an unsavoury electoral harvest in 1994.
" Apologize for everything, investigate some things, do nothing. "
For a while, the strategies appeared to be successful, so much so that some rights activists were reduced to quarrelling about whether they should not themselves oppose the establishment of more human rights "protection" mechanisms, national or international, in the country. The argument was that these are not really effective, serving only as a convenient smokescreen, without which the truth would be uglier, more brutal and consequently easier to deal with.
The pressure appears however, to be subtly shifting now. A noticeable tinge of acerbity is now visible in international pronouncements on Sri Lanka, backed by forthright warnings by powerful lobbying groups such as Amnesty International. While the initial report of Sri Lanka before the Geneva based Committee on Torture, a monitoring body established under the Convention Against Torture to which Sri Lanka is a signatory, was received by the Committee in a guarded manner two weeks back ( see commentary on the report in the ST of 24/05/1998 ), other responses have been more aggressive, in particular, the report of the UN Special Rapporteur on Extra judicial, Summary or Arbitrary Executions, Bacre Waly Ndiaye on Sri Lanka which was presented at the fifty fourth session of the Commission on Human Rights recently. Ndiaye who visited Sri Lanka during 24th August to 5 September 1997 details his observations specifically on a ground situation found to be dangerously grave. On the one hand, Sri Lanka has not been condemned to the extent that there has been found to exist a "planned policy of systematic violation of human rights". On the other hand, the violations have been stated to be so numerous, frequent and serious over the years they cannot be looked upon as just isolated or individual cases of misbehaviour by middle and lower rank police officers/service officers.
" The Special Rapporteur understands the difficulties faced by the government when confronted with insurgents and other armed groups who are responsible for numerous acts of violence and clearly lack respect for the lives and physical integrity of State agents and civilians. However, this does not justify excessive and arbitrary use of force on the part of the security forces. There can be no excuse for extra judicial, summary or arbitrary executions nor for their encouragement through impunity" Ndiaye declares.
He specifies such instances during a time period spanning 1990 to 1997, the more recent cases being the Kumarapuram incident ( Killing of 24 villagers in Trincomalee in respect of which seven army personnel remain in custody ), Alauuwa, Bolgoda and Diyewanna incidents ( discovery of five bodies respectively in Alauuwa and Diyawanna Oya and 11 bodies in Bolgoda in 1995 in consequent to which 22 suspects, 21 of whom were attached to the STF headquarters in Colombo at that time were arrested ), rape and murder of Krishanthi Kumarasamy and three others in Jaffna in 1996 ( in respect of which nine suspects, both army and police were implicated and a trial at bar ordered )
One allegation repeatedly referred to by Ndiaye concerns the treatment of persons arrested under Emergency Regulations (ER) and the Prevention of Terrorism Act (PTA) It has been pointed out that torture is reportedly used by the armed forces/police with two principal aims; to obtain information on insurgent groups and to intimidate the population. Torture, inflicted at the place of detention, in remote places in rural areas or on military and police premises, reportedly precedes the taking of a decision as to whether the detainee is released or put at the disposal of the competent judicial authority. Ndiaye comments that it seems to be a common practice that members of the security forces arrest persons without a warrant, subject them to interrogation and take them to a judge days later, after forcing them to sign a statement of good treatment.
"…..in most of these cases, the Special Rapporteur was told that the only interest of the police is to get the statement of the confession signed, so that the accused can be sent directly to the High Court"
The conclusion comes as no shock.
" The Special Rapporteur remains concerned at the contrast between statements indicating high sensitivity to, and awareness of human rights issues at the top levels of the armed forces and the actual practices in the field"
Ndiaye's recommendations are many, similar in content to the recommendations of the Committee Against Torture. Foremost among them is the obligation on the government to amend the ER and PTA and the effective punishment of service personnel and police implicated in human rights violations. The lack of an independent mechanism to investigate abuses of power by the police is emphasized. Overall, it is the attitude of impunity that is protested at.
" …….it appears that the most severe punishment handed out to human rights violators is suspension from duty, despite the gravity of the offences, including extra legal executions with which they are charged……soldiers and policeman who flagrantly violate the rights of innocent civilians are charged before their own peers and sentenced to only months of imprisonment.
This situation encourages impunity………penalties should be imposed that relate to the seriousness of the offences in order to deter further human rights violations"
The increase of international pressure on the government is to take effective action under the normal penal laws and the specially enacted Convention Against Torture Act (under which incidentally no prosecution has yet been initiated since it was enacted in 1995 ) It appears that bland statements and action for the sake of international consumption is working less and less now.
If this pressure compels the executive to set definite changes into motion, all well and good. If not, well, as was said earlier, all regimes have their own equations. It is to be hoped that this particular equation would not be as melancholy as the last.
UNP MP Anura Bandaranaike, who delivered this year's R.I. Fernandopulle Memorial Oration at Maris Stella College said that a distinct and coherent ideology, liberalism, is considered to be the political theory of modernity as it reflects the central concerns of modern human beings. Following are excerpts from the oration:
On gaining independence in 1948, Sri Lanka was considered to have the potential as becoming one of Asia's rapidly developing states. With regard to institutions it had a Constitution bequeathed by the British which had a separation of powers, a second chamber, an independent judiciary and public service and constitutional protection for the minorities.
However the adoption of policies of import substitution at the macro economic level from the mid 1950s together with the pursuit of policies of nation building which had as its cornerstone the addressing of the problems of the majority community in the fields of education, language and state sector employment lead to the liberal tradition in Sri Lanka being subject to vicissitudes, and strains. Furthermore, commitment to liberalism as a political ideology generated almost an ambivalent response from all the major political parties.
This becomes apparent, I feel, from an examination of how we have fared in respect of the following core issues:-
1. The development of a national Sri Lankan identity which transcends our diverse ethnicities.
2. Economic development with greater private sector participation and concomitantly equity and social Justice.
3. The creation of a constitution as a supreme law which has wide national acceptance.
4. The creation of institutions with integrity and which have popular acceptance and confidence whether they be Constitutional structures or the civil service.
5. A permanent and durable solution to the politics of ethno-nationalism and the end to sectarian violence in Sri Lanka.
The aforesaid which I consider to be quintessential to the development of a liberal tradition in Sri Lanka have indeed proved to be the very issues which have proven to be the modern challenges to liberal democracy in Sri Lanka.
Although one discerns liberal elements in our political structures it has long been felt that the operation of liberal institutions and policies in a third world developing society like Sri Lanka are perhaps unattainable.
The face - off between the primacy of the individual and group rights, has led to tension with the predominant belief being that the state had to be paternalistic and the great provider even at the expense of stifling individual enterprise where economic initiative was concerned.
And Sri Lanka is no exception and it is felt that this transplanted Anglo-American tradition has created what some commentators call "morbid symptoms". Its forms have appeared to be susceptible to abuse, and at times unresponsive to immediate needs. Experimentation in Constitutional making for example in both 1972 and 1978 has led to disillusionment, accentuated by a cynical realist approach to politics and economic policy.
And yet again liberalism and its conceptions of democratic theory have fundamentally transformed the nature of political life in Sri Lanka. The ideas and institutions which animate political and legal discourse continue to have their origins in liberal thought and action. As you all are aware the politics of the country since independence has been bedevilled with two seemingly intractable problems.
The first was the accommodation of the aspirations of the principle minority, namely the Tamils, in political power sharing. The second was the competing ideology between socialism and an open market economy in the economic sphere.
In my view the principal failure that we have faced since independence has been our inability to forge a national Sri Lankan identity which cuts across ethnic and linguistic barriers. Sri Lanka is a multi ethnic, plural society and had that plurality been developed from Independence with the building of a principle of majoritarianism transcending ethnicity; I feel that many of the problems we face today could have been avoided.
It is the aforesaid challenges which liberal democracy in Sri Lanka, if it were to flourish and gain wider popular acceptance and not be perceived as the preserve of a social and economic elite has to address and find solutions for.
With regard to the politics of secession or the "ethnic issue" as it is commonly referred to one of the ironies that we have had to face is how is it that with the transplanting of liberal institutions like Parliament and democracy into Sri Lanka, this whole issue got Exacerbated leading to a polarisation between the two principle communities in this country.
With hindsight while the emergence of socialism and nationalism which entrenched themselves as the dominant ideologies in the formative post-independent years may be cited as one factor there is little doubt that racial divisions in Sri Lanka depended with the introduction of the 2nd Republican Constitution of 1978 which accorded primacy to the Executive President.
1978 was the first time the concept of the Executive Presidency was introduced to the Constitution of Sri Lanka. In 1948 by a consensus of opinion, we adopted what is known as the Westminster model. We tried to encompass into this Constitution the traditions and conventions which had evolved in England over 10 centuries. But we soon found out, that although the purity of the principles were acceptable their applicability and their relevancy and certainly their operation on soil not germane to their experience and found many difficulties. Such were the experiences in many of the newly independent commonwealth nations. So the Westminster concept and the Westminster model to them was more conspicuous for its rejection, than its acceptance. India, for example, worked out the principle of a Republic within the Commonwealth.
When my father became Prime Minister in 1956 he was the Chairman of a Joint Select Committee of the House of Representatives and the Senate, and this Committee was in the process of proposing a series of far reaching changes and one of these proposals were that Ceylon could become a Republic within the Commonwealth and the President could continue as head of the State appointed by the Members of both Houses. Unfortunately with my father's untimely death in 1959 the Committee ceased to function. In 1972 when my mother was elected for the 2nd time as Prime Minister, Sri Lanka adopted a Republican Constitution for the first time in Sri Lanka's history and remained within the Commonwealth as India had done several decades before. Before 1972, the Queen was the Head of the State. From 1972 the President who replaced the Governor General was hereafter appointed solely on the discretion of the Prime Minster. Canada, Australia, New Zealand and other Commonwealth countries the Queen as Head of State advised by the Prime Minister of those countries nominates her Governor General.
In India, the President is elected by a elaborate process of voting in which the Lokh - Sabha and the Rajya - Sabha play a key role. Unlike any of these systems Sri Lanka adopted a unique way out. The Prime Minister nominated the President. We thus began to question the purpose of having such a Constitution.
The idea of an Executive Presidency in Sri Lanka was initiated by Mr. J.R. Jayewardene, the former President of Sri Lanka. In 1970 Mr. Jayewardene for the first time advocated a President elected by the Legislature. However by the following year he was favouring a strong, popularly elected President in whom would be vested many of the powers normally exercised by the Prime Minister in a Westminster model of democracy but much, more. The UNP as a party was at this time not unanimous with regard to this question of a Presidential system of government.
Mr. J.R. Jayewardene may have been sincere in his thoughts and approach to these questions but there was a downside that he had not foreseen, or anticipated.
For the first few years of the Executive Presidency, President Jayewardene was able to frame and execute some of the concepts he mentioned in his speech. After his re-election in 1982 and the unfortunate referendum of 1983, the down side began to surface with a rapidity which he could not control.
The President increasingly became a captive of his Parliamentary group even, though he had the personal charisma and respect to carry through far reaching changes.
President J.R. Jayewardene has been a party man all his life and it was impossible for him to rise above party. I have seen this happening personally in my 21 continuous years in Parliament not only to President Jayawardene but also to President Premadasa to President Wijetunga, to President Kumaratunga. Though, the Presidency gives her enormous powers she is hemmed in by a disparate coalition ranging from the lunatic left to outright racist Parties, her slim majority in Parliament has forced her to compromise on issue after issue. Her own personality charming no doubt her management of time has added to the chaos of governance even though there is a full Executive President in office: what you find in a compromising persona which totally negates the very concept on which the Presidential system was founded.
It can be assumed that the office of the Executive President was established mainly to solve the following issues:-
(1) the necessity of a strong and powerful government to achieve rapid economic development in Sri Lanka, being a developing country in contrast to a regulatory Governments prevailing in other developed countries.
(2) the necessity to have a stable government not bullied by pressure groups inside and outside parliament for example the 1964 cross overs in parliament lndustrial Disputes; and so forth.
(3) to curtail the concentration of power in Parliament and / or the Members and / or Cabinet of Ministers, who by this time has become the feudal lords of their electorates and areas having encroached into every sphere of life of a citizen with right to decide on school on employment, on property, on housing and since of even sexual harassment, late of our leading female athlete.
Taking item (1), strong and powerful Presidential Government achieved rapid economic growth no doubt in Sri Lanka from 1978 to about 1983. Since 1983 up to now the economy has kept steadily declining for reasons known to all of us.
On item (2) once again stable government not amenable to pressure groups from inside and outside of Parliament worked well for some time, but since the Referendum of 1983 this situation rapidly changed. The Tamil parties left Parliament and left the democratic process resulting in the emergence of the most committed and dedicated terrorists force in the entire world. Added to this Sri Lanka faced one of the most violent terrorist uprisings in the Sinhala South claiming the life of untold thousands. Then we witnessed the impeachment motion against President Premadasa which divided the once mighty United National Party.
And since this Government assumed office in 1994 we have witnessed strike after strike, industrial dispute after industrial dispute, virtually in every sphere crippling the economic development and industrial harmony of Sri Lanka.
In your own home town of Negombo a city known for its peace & tranquility due to the callous greed of one individual, this city has been turned into a virtual war zone. One and a half years ago, at 12 noon on the Colombo Negombo road, my motorcade was shot at by hired assassins instantly killing 3 persons & no action has been yet taken even though the perpetrators are well known.
These killings have continued even last month and will continue as long as this moronic monstrosity is allowed to treat Negombo as his private feifdom.
An honourable Police officer who was successfully able to clean up the thuggery, violence and the unbridled corruption at the Airport and bring in a semblance of peace to Negombo and its environs, was suddenly transferred out on the insistence of a powerful politician.
So much for transparency and honesty!!!
For the first time, a sort of Trade Union was formed in Parliament of PA, MP's calling themselves the Mulberry Group, to pressurize government on core issues.
On the 3rd point the Executive President has not succeeded in curtailing and preventing Ministers or MPs from continuing to be feudal lords and Masters of the areas they represent. In fact, this Presidential System has perpetuated the power and the arrogance of the local politicians of the Government party particularly under the administration of President Kumaratunga. One clear example is that one particular MP has already 50 odd cases against him before a number of courts and yet he continues with impunity to burn, plunder and assault his opponents with no compunctions.
When you study the debilitating effects the Presidential System has had on Parliament itself I have personally witnessed over the last 20 years the declining and the increasingly growing unimportance of this once great Institution. As the Presidential System came into existence the interests of the MP remained high only for a few years but after the referendum of 83 this Institution steadily declined year by year and today under the Kumaratunga administration, on most sitting days the maximum attendance in Parliament is not more than 15 or 20MPs. 0n some sitting days there are barely 5 members.
The quorum bell has rung recently as never before in Sri Lanka's Parliamentary history.
Senior Members of the Cabinet who had been my political colleagues for over 20 years have told me personally "what is the use of wasting time in Parliament when the crucial decisions are made at Temple Trees by the President and a few chosen Advisors"
Senior Ministers take cover under Parliamentary Privilege and hurl abuse on innocent and helpless women & men who have brought honour and glory to Sri Lanka and they have no way of defending their honour.
This is something which is totally unacceptable to any norms of democracy. The President can slander defame and assault or intimidate anybody or indulge in any criminal activity (I am not for a moment insinuating that my sister will do any of this) and the President's action cannot be challenged in any Court of Law even after she or he ceases to hold office. Even if the husband or wife of a President wishes to cease their matrimonial relationship no divorce proceedings can be instituted! That's why I am remaining a bachelor! Similarly, no child of a President can claim even maintenance! This is a gross violation of all civilised norms of human behaviour.
This has unfortunately taken place under the SLFP government of 1970 and accelerated under the Presidential System after 1978. Even today, with the commitment of the PA Government to an independent judiciary we have unfortunately witnessed the phenomenon of inordinate delays in appointments to various levels of the Judiciary causing much charges of political interference.
One of the few salient points in the Presidential System was to keep the executive above the day to day political fray and to free its hand to act decisively and definitively when and if necessary.
No President in Sri Lanka's history has come in with such a massive mandate for transparency and honesty like Mrs. Kumaratunga. That was the theme song of both her campaigns. The nation expected her to stay above the fray and act as a neutral umpire and deal decisively whenever there was even a sniff of corruption.
From the dubious awarding of tenders for the Galle Harbour to the most recent unprecedented sexual harassment of our best athlete Susanthika Jayasinghe what action has the executive taken? The Director General of Bribery Ms. Nelum Gamage who was the only person to have been named in the PA manifesto, as a paragon of honesty and victimised by the UNP has today come under investigation herself by her own Department. Not only her even her husband is before courts on charges of corruption. There is a saying that not only Caesar but even Caesar's wife must be above suspicion. In this case Caesar and his wife are both under investigation.
Not one word has been said up to date, scandal after scandal, stinking to the heavens have been exposed.
The Permanent Commission on Bribery & Corruption the first piece of legislation introduced by the PA Government and fully supported by the United National Party is today totally defunct and non-functional a fine testimony to a Government elected on the primary promise of eradicating both corruption & bribery.
Air Lanka is sold for a song and 6 air buses are purchased without even calling for tenders & the sell out of our once proud national carrier, Air Lanka is perhaps the biggest sell out in Sri Lanka's history.
The Minister of Telecommunications runs up huge bills on his personal credit cards.
And who pays the Bill??
The Chief Executive of the Japanese firm that has bought Sri Lanka Telecom, which was privatised under this very same Minister and it still comes under his purview, And the Japanese pays the Minister's credit card bills by his personal account. In any other parliamentary democracy if such a charge was made the Minister would have resigned in twenty four hours but alas not in Mother Lanka.
Today we see in the newspapers that the President of the Commission has requested the IGP to reinstate the 90 police officers who were suddenly for no reason transferred out some weeks ago. The IGP maintains a stoic silence.
Another Minister who does not know when to keep his mouth shut, was found guilty by the Supreme Court of violating Fundamental Rights and charged ?,50,000 Rupees. This is the first time in the History of Sri Lanka that a Cabinet Minister was found by the highest court in the land of violating fundamental rights and fined. In any other democracy, be it neighbouring India, or the United Kingdom or for that matter any other Parliamentary democracy the Minister would have resigned immediately. But this Minister carries on shamelessly as if nothing in the world has happened !!!
And he has the gumption to pontificate to the rest of the world about the virtue of honour!!
With the SLFP's and the President's total commitment to its abolition we all assumed that the PA will gladly grab the opportunity Mr. Wickremesinghe offered them.
But, alas, what did we hear? Vituperative abuse invective and now total silence and some vague references to it being linked with a doomed devolution package.
So much for a great political party that my father founded, 46 years ago with its noble commitment to the sovereignty of the people and through them Parliamentary supremacy.
From time to time, both President Kumaratunga and Prof . Pieris tell us that they still genuinely and sincerely wish to abolish the presidential system. For a moment I don't believe either of them.
Of course it may be argued that the roots of the crisis that Sri Lanka faces today is traceable even earlier to the period commencing from 1970 with the sweeping victory of the ULF coalition.
Many argue that the seeds were sown with the first Republican Constitution in 1972 which institutionalised the supremacy of Parliament as the supreme instrument of state power and dismantled the separation of powers. No accommodation was made to meet some of the concerns of the Tamil parties at that time which were presented to the Constituent Assembly. On the economic front the nationalisation of plantation and land reform while ostensibly contributing to economic equality led to the unparalleled intrusion of the state into the economy and the emasculation of the private sector by a regime of state control and bureaucracy. Rule under Emergency Regulations cast its pall over the Government and the nation.
It was in the economic sphere that perhaps the greatest contribution was made by the policy changes effected after 1977 with the introduction of a more liberalised economy and privatisation and the dismantling of the regulatory apparatus on the state. This development was not difficult to foresee given the quagmire that the Sri Lankan economy had fallen into after almost 20 years of socialist inspired redistributive policies with an expanding welfare state. While impressive gains were made in key areas like income distribution, and in health, education and welfare it soon became apparent that the state itself lacked the expertise and the resources to galvanise economic development and be the vehicle for growth.
I myself derive satisfaction from the emergence of a by-partisan consensus on fundamental economic issues which has now reached fruition; and which where the leading party of the government is concerned had its genesis in my own contribution to that process, over the past 21 years.
With the advent of the present government in 1994 while there is agreement on economic fundamentals we are still faced with even greater problems. There is a lack of coherency and direction to the administration which is deleterious while corruption is rampant This government has jettisoned its commitment to transparency and accountability and the only feature that is nakedly transparent is the enormous corruption and fiascoes like the Hilton Hotel, the Galle Port, the Tawakkal affairs, AirLanka and other privatisations.
Overt interference with the judiciary has reached epic proportions; while political witch hunts against opponents now out of power under the guise of a cleansing of public life is the order of the day.
Further threats to liberalism are manifested by the fiasco over the Broadcasting Authority Bill which was struck down by the Supreme Court in a landmark judgement and which together with assaults on journalists and the institution of several cases of criminal defamation against journalists, manifests the new heights to which interference with the media has arisen. More recently with the adoption of the Colombo Declaration relating to media in Sri Lanka the Minister of Media has ominously told the media "you watch us and we will watch you"!!!
The Government's inability to deal effectively with Trade Union unrest and constant strikes and work stoppages in critical areas has sapped the nation's vital fibre and has proved enervating.
It is therefore imperative that the first and primary challenge that we must meet as a matter of urgency is the creation of a Constitutional structure which dismantles the Executive Presidency and returns to a more accountable and responsive parliamentary democracy. Human rights have to be enhanced while mechanisms have to be put in place to ensure the integrity of free and fair elections, the public service and the police, which is of the utmost importance!
It must not be lost sight of that leading liberal Prime Ministers of this country in the post independence era like the late S.W.R.D. Bandaranaike and Dudley Senanayake firmly believed in Cabinet government in the framework of parliamentary democracy: with the latter opposing the concept of a presidential system proposed by J.R. Jayewardene in 1970 in the Constituent Assembly as being more suited to a "Nasser or Nkrumah or a Suharto" but not Sri Lanka.
In this urgent task of nation building, there is no doubt in my mind that many of the liberal values would have to be implemented if we are to arrest this decline that the nation is going through.
But perhaps, all is not lost. One of Sri Lanka's greatest attributes is the resilience of her political system and its ability to withstand shocks and pressures violent or otherwise. We are now at a stage where there is bi-partisan consensus on economic fundamentals; and it is hoped that the exchange of letters between the President and the Leader of the Opposition, will be a first step in the emergence of at least a working understanding which could lead to a consensus on the seemingly intractable problem of the ethnic issue.
Styles of politics have to be changed - adversarial politics as we now know it and experience it would have to give way to a more mature political environment where while there is agreement between the major parties on fundamental issues, there is still room, as indeed there must be, for differences of policy on other areas without acrimony and violence. But unfortunately we have witnessed over the years an increase of political bickering, acrimony and election related violence of an unprecedented nature which threatens the very core of democracy, as we know it! Without the slightest remorse the perpetrators of this kind of adversarial politics boast that they will repeat these atrocities time and again.
It is time that all of us whatever be our political persuasions, stand up and say in one voice; enough is enough. Let us together build a nation where politics is an honourable profession, not a profession meant for thugs, rogues and morons".
Let us restore decency, honesty and accountability into the body politic of this nation.
This cannot be a single handed effort. It MUST be a joint effort by those who are ruling and by those who hope to rule in the future.
Let us cut across political lines and let us have the courage to go beyond the bewildering kaleidoscope of our complexed politics to help restore faith in Democracy, Parliament, decency, honesty, integrity and above all the restoration of faith of our millions of Sri Lankans who are fast losing hope that this nation has no FUTURE !!!!!
The people of Sri Lanka must ensure that liberal values and ethos do not fade away but are kindled and nourished so that this country could evolve and emerge into a truly great nation which is its destiny and promise. Thank you!
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