I was interviewed recently by Ceylon Today with regard to the forthcoming visit of Navenethem Pillay, the UN High Commissioner for Human Rights. Some of what I said had to be edited out for reasons of space but, though the paper did a good job, I thought that some of what they had to omit was worth reproducing.-Prof.Rajiva Wijesinha MP
The UN High Commissioner for Human Rights Navi Pillay , is due to arrive in a few weeks. Do you view her arrival as an opportunity for the government or a signal of caution to the government?
I think this could be a great opportunity for the government but some elements in it may treat it as something to worry about, which could have unfortunate consequences.
The High Commissioner and the UN are still pushing for SL to investigate alleged war crimes that occurred during the latter stages of the armed conflict and address issues of accountability in relation to the armed forces and their conduct. Do you think this is going to be a key message of Pillay to the Government?
This element, which has been grossly exaggerated, will come up but I believe there are more important things which she will concentrate on.
The Government has obviously not been able to convince the international community of its genuine commitment to addressing accountability issues even four years after the conflict. Why has the government been ineffective in doing so?
The government has been ineffective because it panicked over what it saw, correctly, as unfair treatment. Instead of dealing swiftly with the very minor charges about which there was prima facie evidence, it developed a discourse which saw all charges as traitorous, rather than false.
The rot set in with the manner in which it responded to Sarath Fonseka’s charges, which could have been refuted through his own very different words some months earlier. After that it became difficult to deal properly with the residual charges – such as those noted in the government’s own LLRC report – since some elements in government feared that Sarath Fonseka and his supporters, in the forces and outside, including those who had supported the government against him, would cry treachery themselves.
This is a simplistic fear, because such support is minuscule, but the government’s agenda in this regard is being set by those who profit by panic.
Do you think the Foreign Ministry has been ineffective in projecting an accurate and positive picture of the progress Sri Lanka has made after the war to the diplomatic community?
Critics assert that while the media may seek to apportion blame on the foreign Ministry it is the fact that limited progress has been made on the ground, which has caused the international community to express displeasure over Sri Lanka and its HR/ accountability track record. Do you agree?
We have made considerable progress on the ground, which the Foreign Ministry has failed to project. For a couple of years our image was projected by the terrible Pieris twins and, though they were critical of each other, and seemed to have very different perspectives, as I saw during the March 2012 farce, both came across as humbugs, precisely because neither was pushing domestically for what they claimed was happening. I was stunned when the then American Ambassador told me we were being ambiguous about the LLRC report, and I said she should listen to what the accredited spokesmen of government were saying, not individual critics (she had cited Mr Weerawansa). She wanted to know who the accredited spokesmen were, and when I mentioned the Pieris twins, she said that they had both lost all credibility. Though Ms Butenis was playing her own little games, that was when I began to realize what a sorry state we were in.
The President has only now appointed a committee to investigate disappearances that occurred during the final stages of the war. Can you explain why it took four years since the conclusion of the war for such a commission to be appointed?
The President has often wanted things done which those around him simply delay. He is an instinctive politician, with generally very sound instincts, but he cannot conceptualize. Unfortunately he continues to have faith in those around him who can conceptualize, but they have allowed their intellects to go to sleep and act only when they have to.
I can give you four clear examples of instructions he gave being ignored. He wanted me appointed Secretary to the Ministry of Disaster Management and Human Rights in December 2007 and this took six months. In April 2011 he thought the Committee to implement the Interim Recommendations of the LLRC was active, and when he realized it had never met, he wanted me put on the Committee. His Secretary was persuaded to ignore that request, but though I was then specifically asked to monitor its work, in my letter of appointment as Advisor on Reconciliation (the terms of reference came six months after the appointment, which in turn had taken three months after he wanted it done), it was only a few months later that I was told the Committee had never met. Because of its obsession with Defence related matters, nothing was done about even more important questions such as land issues.
The President wanted an Action Plan for the LLRC prepared in December 2011. This was ignored and only happened when he finally entrusted it to his Secretary instead of the Pieris/Foreign Ministry combo that had done nothing. He wanted Civil Society representatives on that Action Plan Committee but Mr Pieris objected and they were dropped. I was told they would be put on the Task Force, but the Task Force did not meet for six months after Cabinet had adopted the Plan, and it is only active now after Mrs Wijayatilaka – who was responsible for producing the Action Plan quickly with Key Performance Indicators – was put in charge. Unfortunately no one bothered to tell sympathetic members of the international community about her role until I did, and those who met her were deeply impressed. One told me that, for the first time, they were hearing from government language they had not heard before.
Is the President simply appointing this commission ahead of Pillay’s visit to appease the UN and give them some confidence regarding the government’s commitment to ensuring accountability?
I hope not, but there are people around him who think like ostriches, and believe that, after she goes away, the matter can be forgotten – until the next crisis hits us. Let me give you another example of how slow and obtuse people can be. In October 2009 the Americans sent us some queries about potential war crimes, which were put in a very civilized form, and could easily have been answered. The most serious related to what Sarath Fonseka had said in Ambalangoda, about him ignoring instructions to spare people carrying white flags, and I pointed out then that this should be investigated.
The President appointed a Committee, which hardly met. I told them several times that I had material to refute the allegations – including verbally to the most active member of the Committee, Mr Jayamaha, at the President’s Christmas Party in December 2009 – but they slept on the matter, and I was only called up in the middle of 2010 when I was abroad. When I got back, I was told that the mandate of that Committee had been subsumed in that of the LLRC, which does not seem to have been the case because those allegations are not specifically dealt with.
In the days when I thought Mr Pieris had a serious commitment to Human Rights, I would tell him that he and I could sit together over a weekend and draft clear answers, and he agreed, but never got down to it – though in that case he did not have a mandate so failure was not his responsibility.
Many are of the view that this commission is nothing more than a political gimmick and a time-buying measure. Your thoughts?
Not from the President’s perspective, but the views of others may prove more powerful. He does not micro-manage, which I used to think was a good thing, having seen what happened when Mr Premadasa did micro-manage. But I realize that, whereas Mr Premadasa had very capable officials, the President now is not so fortunate, and he needs to make sure his instructions are carried out. He certainly should not listen to those who think time can be bought, because the last three years have shown that this is neither possible nor desirable.
Reports indicate that the High Commissioner is going to meet deposed Chief Justice Shirani Bandaranayake during her visit. Isn’t this a clear snub to the government which has consistently attempted to vilify and condemn her?
Given the controversy the impeachment caused, it is understandable that the High Commissioner would want to meet Mrs Bandaranayake.
Obviously Pillay meeting Dr. Bandaranayke will be interpreted as a show of tacit support and an acknowledgment that she was unjustly and arbitrarily removed from her post. Do you think the President will interpret her moves to visit Dr. Bandaranayake in this manner or else how do you think he will view it?
I think he will understand that the High Commissioner is working in terms of her mandate. I hope however that government people who meet her will be able to show the rationale for the impeachment.
Do you think the government is unhappy that Pillay is going to meet the former Chief Justice?
There will be some people in government who will be unhappy with anything Ms Pillay does.
Several independent international legal analysts and commentators including diplomatic missions have voiced the view that Dr. Bandaranayke is being unduly persecuted post-impeachment . They have voiced the view that the charges leveled against her by the Bribery Commission are fake. What do you have to say about this and do you agree?
I have not been following the recent charges against her, but at the time I thought that there were several things Dr Bandaranayake had done that were unsuitable for a Chief Justice and which needed investigation. However, given that the Bribery Commission has informed COPE in several instances that matters we brought to their notice do not warrant indictments, I wish they used the same standards they seem to be applying to Dr Bandaranayake in all cases.
Obviously both Pillay and a large chunk of the international community view the impeachment as a sort of ‘witch trial’ with Pillay herself expressing serious concern over the impeachment. What do you think the international community viewed the impeachment this way?
This question relates I assume to the impeachment itself, which should certainly have been better handled, if only to fulfil the ringing assertion of the PSC that ‘the appearance of bias, even if there is no actual bias’, is sufficient to taint a decision.
Unfortunately the Standing Order about impeachments is absurd, and indeed the Leader of the Opposition informed me they had introduced it to frighten Neville Samarakoon and, after he was frightened, they did not introduce what should have been the more important part relating to investigation. Typical of the amateur approach of both government and opposition is that, though all agreed at the time that the Standing Order needed to be changed, nothing was done about this. My pleas to the Speaker to reconvene the Committee on Standing Orders to make necessary adjustments fell on deaf ears, so I have now introduced some amendments myself.
Typical too is that these have not been noticed by journalists, even though they are the most important intervention with regard to improving parliamentary practice that has occurred in several decades. But I suspect no one else is interested in process and structures, given we no longer understand what Parliament is about, after the introduction of this ridiculous hybrid Constitution.
Isn’t it fair to say that rightly or wrongly the impeachment of the Chief Justice has only worsened the perception within the international community that the Government is not committed to human rights and Rule of Law?
It has certainly worsened perceptions, but I am not sure we should think of international perceptions, instead of concerning ourselves more with what our own people feel, think and expect.
The PSC did not grant Dr. Bandaranayke sufficient time to answer charges against her and even summoned witnesses in her absence so that she did not het the opportunity to cross-examine witnesses. Do you think the President regrets the behavior of the PSC , when it is he that has to deal with the international community now ?
I think there was a lot of pressure on him to expedite action because there were all sorts of allegations with regard to Dr Bandaranayaka obstructing government legislation. These were absurd, because for instance the judgment she gave on the Divineguma Bill, which caused such heartburn, was later seen as perfectly sensible – though government failed to follow the Constitutional provisions required for Bills that should be passed with a two thirds majority.
The President should regret the behavior of the PSC, not because of needing to deal with the world at large, but because the desired results could have been achieved more cleanly, with structural changes made to ensure that Chief Justices did not wield excessive arbitrary powers. I had in fact written previously about the need to introduce Rules, and even now I am sorry that this is not being done. The Secretary to the Judicial Services Commission promised to meet me in this regard, given suggestions I had made when I convened the Task Force on expediting implementation of the National Human Rights Action Plan, but I fear he has not given this priority.
Several independent commentators are of the view that the former CJ is being persecuted even after the impeachment. Isn’t the apparent persecution she is facing working counter to the government in the eyes of the international community and wouldn’t it be more prudent in the interests of our international image to simply’ let her be’?
Again, I am not sure prudence in terms of our international image should be more important than doing the right thing by our own citizens. I have not been following the recent developments, but in principle I think there are more important problems the Bribery Commission should deal with.
The recent incident in Weliweriya where the army was used to crackdown on peaceful protestors was condemned both locally and internationally. Do you think this will be a key theme of Pillay’s deliberations with the government?
Yes, I would expect so.
Don’t you think the use of the army in such an instance was completely unnecessary and is only going to worsen the perception abroad that citizen’s rights are not respected?
I don’t know the situation on the ground, so cannot say that the use of the army was unnecessary, but certainly its use of live ammunition was, and this increases worries both locally and abroad.
What do you think are going to be the consequences in terms of our foreign relations and international image as a result of this one incident?
I think we should be more concerned about the feelings of our own people. With regard to our international image, since we cannot get across the good things we are doing effectively, and since those making the running against us cannot distinguish truth from falsehood, this will I suspect make little difference.
The Opposition notes that citizens in the North and East still continue to live in mud huts and are devoid of basic facilities. Do you agree?
The Opposition is talking nonsense as usual. Our Resettlement programme was extremely successful and, though there are some shortcomings, by and large we have every reason to feel proud, of resettlement and the facilities available. I wish the Opposition would be more serious about areas in which we could do much better, ie Human Resource Development, where in both the North and the rest of the country, we are not doing enough.
There are several cases which reflect a trend of impunity in Sri Lanka. For instance the murder of British tourist Kuram Shaikah where a PS chairman is allegedly complicit but there has been no action in these cases. Do you think cases such as these should be avoided at all costs when looking at preserving our international image?
Again, while the Khurram Shaikh case was particularly bad, and we should have acted long ago, cases of impunity should be avoided primarily for the sake of our own citizens.
Do you agree that there appears to be a trend of releasing those with patronage on bail while remanding others.?
Far too many people accused of serious crimes are released on bail or get unwarranted privileges in prison, whereas far too many people are remanded for petty crimes. Patronage is a factor, but not the only factor for this situation. Unfortunately we have not embarked on the radical reforms necessary in this regard, even though the President announced these in his 2011 Budget Speech – another example of his good ideas coming to naught because of incompetence and neglect.
Don’t you think we are playing into the hands of those countries that are seeking to exert pressure on Sri Lanka by allowing this trend of impunity to continue?
Yes, but it is more important to root out the initial reasons for such pressures being applied, reasons that have not been analysed and addressed. Sadly, we are one of the few countries with this level of education which does not have serious think tanks.
The case of the British Tourist is just one of many. Several other cases involving politicians accused of high profile murders have been withdrawn by the AG. Is this due to political pressure or do you admit the AG’s argument that there was no evidence in these cases?
I do not know details, but I recall a senior member of the Attorney General’s Department telling me of such cases being withdrawn a few years back. He granted that this sort of thing had happened in the past, but claimed that it had got much worse in the time of the then Attorney General. I hope the present Attorney General, who is a man of great intelligence and integrity, will reverse the trend.
As a senior academic and MP are you not concerned and disenchanted with the steady deterioration in rule of Law as mirrored by these cases?
I would not agree that there has been a steady deterioration in the Rule of Law, given that the process began many years ago. People have forgotten the impunity the country faced with regard to cases such as those of Ananda Sunil and Richard de Zoysa, the barracking of Supreme Court judges and the insults to their judgments, the indiscipline of the forces in the eighties. All these have changed for the better, but certainly more needs to be done.
Why do you continue to support a regime which has been ineffective in stopping such a deterioration?
I believe the plus factors about this government, and in particular the sea change in society wrought by the defeat of terrorism, far outweigh any shortcomings.
Your critics assert that you display double-standards by defending the government internationally but criticizing it locally. What do you have to say to these critics.
The charges laid against the government internationally which I defended it against, more ably it is generally acknowledged (including I gather by the Rapporteur on Extra-Judicial Executions, following my analysis of Channel 4) than by anyone else, were absurd. The fact that I am no longer deployed for this purpose is a mark of the failure of the Ministry of External Affairs to understand the damage being done by these charges still circulating. The criticisms I make locally relate primarily to incompetence, which are charges I have also made in the past. I believe such criticisms are in the interests of the President, since he is often cocooned against the shortcomings, and only finds out too late that people have not done what he wanted.
You did not support the impeachment of the former CJ and you have been extremely critical of the ruling UPFA recently on several issues. Why do you continue to remain in a government that you appear to have fallen out of tune with?
I do not remain in government, since that phrase applies to those with executive authority. I have none, but am a Member of Parliament supporting a government that, despite some shortcomings, is the best government we can possibly have at this period.
I have not fallen out of tune with the government, since I have great faith in the President’s vision, of rural development and the enhancement of opportunities nationwide, and am only sorry that Human Resources Development does not keep pace with his vision. On matters such as Resettlement and Reconstruction and Rehabilitation, as well as infrastructural development in general, I am proud of our record, as also of the work of the armed forces – which is why I was so upset by what happened at Weliveriya, since it could lead to further questioning of their role, which I think must be enhanced rather than diminished.
I think I have done more as a Parliamentarian in terms of the traditional role of Parliamentarians than any of my colleagues, who are concerned either with executive responsibilities or with constituency issues, given the imperatives of the current electoral system. My work in COPE is appreciated by the Chairman, who recently referred to the change wrought by my introduction of sub-committees. I was the first government MP to ask questions and introduce an adjournment motion in this Parliament, when some colleagues thought this was being critical, though the President has encouraged this. I think continuing with such work is important.