Columns - FOCUS On Rights

The antics of vulgarly rumbustious rowdies

By Kishali Pinto Jayawardene

The ugly spectacle that Sri Lanka presented to the world last week in the siege on Colombo's United Nations compound by a constituent party of this government and with unequivocal blessings from the Rajapaksa administration, will not be easily forgotten.

Unplumbed depths of insanity

For Sri Lanka's detractors, as represented by the powerful pro LTTE lobbies overseas, the sight sufficed to gladden hearts and to prove their passionate argument all along that Sinhalese governments are quite incapable of basic norms of democracy, forget about ensuring the rights of minorities. For those in this country striving with their backs literally against the wall to preserve some sort of sanity in governance, this was a further indication that we have plummeted to hitherto unplumbed depths of insanity.

For the United Nations (UN) itself, the siege lent an unwelcome intensity to a problem which had been, at best, an irritant before, despite intermittently eloquent statements calling upon the government to respect international human rights standards. The formation of an advisory panel with a limited mandate to advise the United Nations Secretary General (UNSG) was an easy way out from persistently embarrassing queries by pressure groups to act on Sri Lanka's crisis of accountability. In all probability, the report that this panel would have handed to the UNSG would have been filed of record and quietly forgotten.

Yet the siege and the virtual trapping of UN staff precipitated such convenient formulas into a dangerously confrontational situation which was certainly not to the credit of the nation. The consequences of such precipitate rowdiness amidst the name calling of members of the advisory panel as Tiger terrorists will only be evidenced in the months to come.

Naïve reliance on apparent friends

If the likelihood of this advisory panel leading to a serious inquiry was slim in previous months given international realpolitik, the chances of this being something more than a limited panel could only have significantly increased given last week's antics. Perceived as a country ruled by vulgarly rumbustious rowdies who represent the government at the highest levels and with scarce concern for the Rule of Law, such is the unfortunate state of play today. In the absence of genuine action taken on questions of accountability and human rights protections, our naïve reliance on apparently sympathetic members in the UN Security Council to shield us from the scrutiny of international criminal law processes when the time comes may well prove to be pathetically misplaced.

It is quite clear now that the current priorities of this administration have nothing whatsoever to do with tackling the remnants of the LTTE or in restoring the Rule of Law in a post war situation. Rather, the priorities are directed towards the enthronement of one family in power. For example, in what way, pray, can the implementation of the 17th Amendment to the Constitution negatively impact on anti terrorist activities? Though some have imaginatively argued that the Constitutional Council (CC), as presently comprised, is tilted to the favour of the minorities without safeguarding of the rights of the majority, these are arguments that can be met with reasoned counter arguments and by hammering out via media. The way forward is not by entirely doing away with the CC which means that all the independent commissions on the police, the public service as well as the Human Rights Commission of Sri Lanka will continue to be compromised.

Making governance impossible

The Minister of External Affairs is recently on record as saying that the reforms process will retain the constitutional commissions but with the stipulation that ministerial authority in respect of the subject matter overseen by the commissions will be preserved. One example that has been drawn is that of the Police Department and the National Police Commission.

It is argued that if the Minister of Defence does not have 'total control over the police force', effective government will become impossible (see Responsibility sans Authority; Lessons from the Maldives, The Island, 14th July 2010). So is the Minister then stating or claiming that we have effective governance now with the prevailing system? The answer to this question is unfortunately all too self evident. We have a system where political corruption prevails at the highest levels, where senior police officials are berated and abused by high persons in authority when they attempt to control an unruly mob as what happened at the UN compound last week, where good police officers are transferred out, demoted or otherwise punished when they try to do their jobs properly and where the tradition of respect for command and of respect by junior for senior has been almost obliterated.

Independent supervision of the police

Each police officer knows full well that in order to get promotions or benefits, the key is not to do his or her job properly but to jump to the whim and fancy of politicians. Is this brief what the Minister is defending? To argue in this manner against the 17th Amendment is but pure sophistry. What is the point of having constitutional commissions whose members are minions and faithful supporters of a political clan? It is far better indeed not to have these commissions at all.

At another level, do we find similar criticisms being levelled against the United Kingdom's Independent Police Commission? Even taking the External Affairs Minister's own argument, the solution is not to give the total control of the police force to the minister, (which, by the way, should not be the minister of defence which only aggravates the militarisation of the police), but to at least ensure an independent mechanism which would act in regard to public complaints against the police force or an individual police officer which is similar to the United Kingdom model. Such a model had been called for in the past by our own reform bodies comprising, in some instances, of former Chief Justices of Sri Lanka, including the Soertsz Commission (1946), the Basnayake Commission (1970) and the Jayalath Committee (1995).

Proving our bona fides

If one distances oneself from the hysteria, what has to be done by this government to prove its bona fides is obvious. There are those who, in principle, contend that the European Commission's (EC) wish list of fifteen conditions on which the government was required to commit itself to, goes beyond that level of detail which is appropriate for the context.

Yet, even these critics concede that, taken on their merits, the conditions will be favourable in implementing the Rule of Law in the domestic systems. It was unfortunate that they had to be tied up to the trade privilege.

However, as this column has frequently observed previously, take the EC out of the picture and these conditions are precisely what domestic rights practitioners have been arguing for, during decades. These arguments are most compelling now in a post war situation. Their implementation remains a priority.

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