Columns - FOCUS On Rights

The sins of the present and of the past

By Kishali Pinto Jayawardene

There are people who question from me as to why the individual anger on the part of some and the collective fury of many others is directed in good conscience against the rights violations of the current administration when surely, there have been comparable (or as some would argue, even worse) sinners in the past.

Harsh criticisms of the past

This question is easy to answer. In the first instance, it is worth pointing out that previous regimes were subjected to equally harsh criticisms when writers, activists and innocents were killed. The case of Richard de Zoysa is one good example. This was one case in which bitter animadversions were directed against the Department of the Attorney General for its clear complicity in covering up the brutal killing of a man who dissented by his pen alone.

Foremost among these accusers was the Liberal Party which went so far as to say in one reflection as follows; 'An all too clear impression has been created of the obstructionism of the police. In addition, the suspicions of partisanship and lack of commitment to an impartial pursuit of justice by the Attorney General's Department gravely undermine the credibility of what should be, in a functioning democracy, impartial institutions of the State. The unhelpful attitude adopted in this case by the relevant agencies of the police and by the Attorney General's Department only serves to confirm the recent deplorable trend in Sri Lankan public affairs that the distinction between the armed forces and the administrators has all but disappeared (see Statement on the Murder of Richard de Zoysa,' in 'The Liberal Party Replies to the UNP' in The Liberal Review, February 1991, at p.30.)

Current realities and recurring deep stains

Let us take this criticism from that age and that time, to the present. Can we say that anything has changed except, of course, for the fact that the Liberal Party is not inclined in any way to make such damning criticisms any longer? This is a moot point. In 2006, two highly respected senior justices of the Supreme Court, (now retired), issued a legal opinion in which they affirmed that the involvement of a senior state lawyer of the Attorney General's Department as lead counsel for the 2006 Udalagama Commission of Inquiry led to a conflict of interest as that same state lawyer had been involved in the initial investigation or inquiry into the very same incident of gross human rights violation being looked into by the 2006 Commission on the basis that the initial investigations/inquiry were unsatisfactory.

This opinion cannot, in any way, be construed as partisan, not purely because of the stature of the judicial personalities involved but primarily due to the thorough examination of relevant legal principles and precedents applied to the factual context of the situation in issue.

Indeed, there may well be those (including in the media) who would unpleasantly, unwisely and hysterically if not slanderously defend this compromised Commission of Inquiry against its critics. Yet its deeply flawed functioning which culminated in the Commission being ignominiously wound up with several cases still remaining to be inquired into is apparent for all the world to see. Unpalatable truths in this context cannot be bypassed as much as the truth could not be ignored in the Richard de Zoysa assassination.

As history recorded later, what occurred during that time became a deep stain on the independent functioning of the country's state law office. Similarly, what happened in relation to the 2006 Commission of Inquiry will also be reflected upon in the years to come. This will certainly not be to the credit of those involved in that farcical exercise as well as those springing to equally farcical defences. Let us not fight shy of saying that in all honesty.

Difference in the context of the past and of the present

But to return to our original question, there is a pertinent issue at hand which is relevant even more than our initial premise that the sins of the past attracted as much ferocious criticisms as the sins of the present. This is precisely that, the sins of the past were committed during times in which the State itself was under threat from tremendously effective subversive attacks whether originating from the North or from the South (broadly speaking).

This is not to say at all that the context justified the responses of successive governments of different political colours but who were one in using brutal counter terror tactics to quell these threats. I hasten to add that, (lest hysterical abuse may be again leveled on the basis that I am trying to whitewash the past), this is also not to say that governments of the past were less sinful in some way than the government of the present. However, it is without dispute that the context in which violations occurred in the past and the context of current violations hold out a very different flavour.

'Normalisation' of state terror?

In the aftermath of quelling one of the most bloody terrorist threats known in the modern world, we are now in a situation where there is deep public suspicion regarding the subversion of the electoral processes, a presidential candidate remains incarcerated under military law without proper charges still being brought, emergency law continues, a journalist remains 'disappeared', peaceful protestors are set upon by thugs with the connivance of the police and the media remains cowed. In other words, have we now unquestioningly accepted the 'normalisation' of state terror?

So what pray is this truly schizophrenic environment where, on the one hand, websites that carry inconvenient news are being blocked and on the other side, we are supposed to believe that this country will soon have a right to information law? While a substantial critique of the present developments in this respect belongs to a different column space, it must be affirmed that the very basis of a right to information law is that information on financial dealings of the government must be open and transparent. Are we supposed to believe that this right, in the very minimum would be secured to us?

At a general level, the problem remains the same as one year back. In the face of a government that is progressing deeper and deeper into a morass of severe rule of law contradictions, (despite what learned professors of law try hard to tell us), what is the viable political alternative that is on offer for the people?

Heading for the abyss

Paradoxically perhaps, I know of many who voted for the now incarcerated common opposition candidate, not in expectation of elevating him to power given the uneasy mix of combative political parties and highly problematic legal personalities supposedly drafting his Constitution. Rather it was in the hope that, faced with a cogent threat to his rule, President Mahinda Rajapaksa will pull back from the abyss.

Yet as post election developments have shown us, this has become a most forlorn hope. We brace ourselves for what will come in the future.

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