Kishali Pinto Jayawardene
Certain aspects of the functioning of the Wickremesinghe-Sirisena government raise valid concerns as to whether anti-democratic Rajapaksa policies of the previous era are being continued but in a far craftier and skilful manner.
This is a concern that ranges across the spectrum, from the accountability question to basic issues of good governance and the Rule of Law.
Failing to heed warning signals
As even the most fervent admirers of former President Mahinda Rajapaksa must admit, subtlety was not his strong point, particularly during his second term when base crudities were resorted to in the handling of national and international matters.
While this was deplorable, that lack of craft also remained the Rajapaksa administration’s strongest weakness, rendering it vulnerable on many points until it came crashing down with ‘all the King’s horses and all the King’s men’ being unable to put the Medamulana kingdom back together again.
That is all, of course, to the good. But we need to rigorously question ourselves whether, in the profound relief of seeing the end of that regime, we are failing to question warning signals in regard to fundamental issues in regard to which so much passion was ignited at the start of this year.
The package of accountability measures and constitutional reforms being rushed through is one predominant concern. What Sri Lanka needs now is well thought out structural reform of deeply corrupted systems and institutions, including most importantly, criminal justice reform encompassing the three institutions of the police, the Attorney General and the judiciary.
Looking at structural reforms
Time-limited special courts to try war crimes must be part of that process rather than considered separately or established in a vacuum. In the alternative, an ‘instant’ package of reforms confined to the ending of the war will have minimal impact in changing a historical culture of impunity.
More disturbingly, such an isolated process will merely pronounce on the sins of the Rajapaksa regime as it catches a few aberrant individuals in the political or military command. This would certainly be to the liking of the current political dispensation as it effectively kills off two cacophonous birds with one stone; marginalizing those who may politically present a threat as well as satisfying international pressure in one fell swoop.
But there are serious dangers in this approach for minority Tamils and Muslims as well as the majority Sinhalese. With structural changes absent in the security sector for example, resort to torture and harassment of the ethnically vulnerable will continue in the North and East. In the South, as we saw just a few days ago in regard to extraordinary police brutality practiced against protesting Higher National Diploma students, abuse by law enforcement officers will also continue.
Valid public concerns
These are issues that have become relevant in regard to Rule of Law priorities as well. A letter written this week to President Maithripala Sirisena by a group of attorneys, social justice activists and trade union leaders calling themselves ‘DecentLanka2015′ raises interesting issues in regard to the establishing of ‘independent’ Commissions under the 19th Amendment to the Constitution.
Lack of transparency in the process is a central concern. As validly pointed out in this letter, the composition of a Constitutional Council (CC) heavily tipped in its balance towards the politicians was a problematic compromise at the very outset. The inclusion of three ‘civil society’ members emerges almost as a sop as it were, to calm the vociferous public demand during the election campaign to the January 2015 Presidential Poll for an ‘independent’ CC.
Let it be clearly said therefore that this is not an ‘independent’ body in the very definition of the term and by any stretch of the most agile imagination. The fact also that these three members include a former Attorney General distinguished for his close association with the United National Party is a disparate but connected concern.
Disquieting secrecy that is observed
These factors, by themselves, should have heightened the need for absolute transparency to be followed in the actual functioning of the CC. But the contrary appears to have happened.
As ‘DecentLanka2015′ points out, peculiar secrecy surrounded the nomination of names by the CC to the commissions on the Police, Public Service, Human Rights as well as the Bribery Commission. Signatories to the letter specifically mention that ‘one person named for the Police Commission has serious allegations that do not in any way make him qualified to be even named. It is therefore quite in order we say, for the people to have reservations over other persons named too.’
A further concern mentioned here relates to the delay in making the Right to Information Bill available for public discussion. As pointed out, ‘this is a serious issue to all citizens and not just for those who voted for ‘good governance’ at two consecutive elections. This silent approach in appointing independent commissions seems to replicate the Rajapaksa method that politicised the whole State machinery.’
Keeping an eagle eye on government
President Sirisena has been requested to immediately make public, all names of persons nominated so far to the commissions, the details about their proposers and the dates the nominations were received. He has also been requested to disclose names and details of nominations for the remaining commissions if any and to allow seven days for public scrutiny before appointment.
Undoubtedly these are interventions made in the public interest. It remains to be seen if the requests will be heeded. But the overall priority of keeping an eagle’s eye on constitutional governance remains high. The Human Rights Commission and the National Police Commission have both promised inquiries on this week’s police assaults on students. The probity and impact of these inquiries need to be monitored. Speedy hearing into cases of Tamil detainees kept for years under anti-terrorism laws without charges being brought is a monstrous injustice that has to be put to right.
And inherent contradictions in the reforms process need to be corrected. As pointed out editorially in this newspaper and in these column spaces a few months ago, the Right to Information provision in the 19th Amendment contradicts and in a sense, even defeats the very content of the separate draft Right to Information law.
As of now, public scrutiny of the Presidency and the Government remains a priority.