Columns - FOCUS On Rights

Is the 2009 war victory, a licence to plunder?

By Kishali Pinto Jayawardene

There is a fundamental fallacy in believing that the fortunes of Sri Lanka will rise or fall solely on the outcome of the US draft resolution due to be taken up before the 19th session of the United Nations Human Rights Council in Geneva this coming week.

Desperate exercises in self deception

The contrary is precisely the case even though the Government is expending extraordinary expenditure and exhibiting frantic energies in support of its cause. Let us make no mistake about this. If the resolution fails, the relentless outside pressure will undoubtedly continue unless and until this Government is seen to make concrete steps towards addressing its serious Rule of Law problem. Empty rhetoric, favourable media spin and bombastic pronouncements on the part of the administration cannot prevent this. Are we prepared to allow this Government to continually divert all these financial resources on desperate exercises of deception before the international community purely to avoid its adherence to the Rule of Law? We will return to this question later on.

If the resolution succeeds on the other hand, we would have none but the current regime's unwise, arrogant and incredibly obtuse actions to blame for the most unprecedented internationalization of Sri Lanka's crisis of governance since independence. Even if so, it will be merely the start of a process whereby far more rigorous international attention will be paid to Sri Lanka, much like an unruly child in the classroom. Whichever way the resolution will go, the lying on the part of this country's representatives both here and abroad will need to stop. The question only is when. Each day that the lying continues, our economy is plunged to greater depths, our law and order institutions deteriorate further and the risk of sullen public anger erupting into total anarchy becomes greater, as we have already seen in sporadic instances.

Lack of reasonable bona fides by the government

In the face of an inchoate opposition and disjointed protests by ordinary people when they cannot take it any more, the repercussions of a near total lack of governance are ignored with aplomb by the Government even now. Yet sporadic peoples' outrage against the institutions of law and order, such as the police and the judiciary, are unstoppable once they pass a dangerous point. It does not require much imagination to envisage this as a probable result domestically.

Meanwhile, the Universal Periodic Review (UPR) of the country which is a UN driven review of Sri Lanka's human rights record, is scheduled for later this year. With the most incredibly short sighted policy of 'lying today to save ourselves for another day' government spokespersons have been requesting (nay, pleading) that more time be given till the UPR review to implement the recommendations of the Lessons Learnt and Reconciliation Commission (LLRC). But one may well ask as to what is the magic in giving six or seven months more when the interim recommendations of the LLRC have not been implemented for the past one and a half years? On what basis of reasonable bona fides does this administration ask for more time? This is a transparent ruse to pass the most immediate crisis with the crass attitude that more lies can be uttered the next time around as well. Such prevarications aside, the UPR review will again see focused attention on Sri Lanka with its attendant harsh critique.

Meanwhile, the disingenuous explanation of government spokespersons that the LLRC recommendations have been implemented but that insufficient publicity has been given to this process is most unconvincing. If this is the case, the Government would be well advised to spend its freely flowing public funds on full page advertisements in the national newspapers, detailing exactly what these steps have been.

In the absence thereof, it would be well not to insult the intelligence of the ordinary right thinking Sri Lankan. In any event, the LLRC itself expressed considerable discontent at the lack of adequate implementation of its own interim recommendations. This gives the direct lie to absurd defences that the problem is the absence of publicity rather than the absence of actual concrete action.

Flouting of established legal principles

This week, a courageous judge of the High Court dismissed one of the many criminal cases filed against former Army Commander General Sarath Fonseka on the basis that duplicate indictments had been filed, first in the second court martial and later in the instant case before the High Court, in respect of elements of the same offence. This judicial stand reflects the well established legal rule of double jeopardy, that no person shall be penalized twice for the same offence. These are hoary principles of law, contained in our statute books from decades ago and repeatedly emphasized by our judges. In the instant case, the application of the principle is quite clear given that the Supreme Court had earlier ruled that a court martial constitutes a court.

So the question arises as to the precise legal basis on which indictments are filed by the Department of the Attorney General? Are we to assume that indictments are filed (as much as they are withdrawn when politicians are the accused) without rhyme or reason? Years ago, when it was questioned from the Department as to why more indictments are not filed under the 1994 Convention Against Torture Act against law enforcement officers, I recall a senior state law officer stating that indictments are filed only when there is a reasonable presumption that the case will result in a conviction.

Based on this reasoning, are we then to assume (quite hilariously) that the Attorney General now believes that there is a reasonable presumption of a conviction in cases where double jeopardy is clearly evidenced in the indictment? Where has our law and jurisprudence fled to? Are we this degraded as a society that we must behave as if we are newly introduced to these principles, despite the many law books that have been written on the subject, some by the very law professor who now functions as a primary minster and mouthpiece in the Rajapaksa administration? These are pertinent questions that should be asked by all legal practitioners and academics. But the deafening silence that we hear is testimony to our own cowardice.

Judicial courage in rare instances

So in the context of such silence, the judicial officer bold enough to dismiss this High Court case must be commended for his principled stand in abiding by the law in the same manner in which, some time ago, he insisted on the Attorney General giving reasons as to why a bribery case against a well known principal of a Colombo school was sought to be withdrawn. As much as when another judicial officer was bold enough to dissent and acquit the former Army Commander in yet another criminal case filed against him, these are rare instances of individual integrity that stand out at a time when most cower in fear.
Finally, it is the law that should matter and not the individual.

This is the basic principle of legality, whether it is a former Army Commander in issue or any other person. In line with the dismissal of the High Court case this week, it must be said relevantly that this same indignity of duplicate indictments is visited upon considerable numbers of detainees of Tamil ethnicity arrested under anti terrorism laws. Indictments are filed relating to the same offence in several High Courts despite the clear principle of law that forbids such actions. And this is the very same Department of the Attorney General on which we must rely (according to assurances given to us by the Government) to effectively investigate and prosecute cases of human rights violations referred to by the LLRC? There must be a limit to such tomfoolery.

Why do we allow free licence to plunder?

This column has asked this question time and time again. Does the Rajapaksa Presidency interpret the victory against the Liberation Tigers of Tamil Eelam in May 2009 as free licence to plunder the country and reduce its justice institutions such as the Department of the Attorney General, the Department of the Police and even judicial institutions to the status of mere appendages to the executive?

Unfortunately this has now become a rhetorical question that needs no response for the answer veritably stares at us, in plain sight.

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