Kishali Pinto Jayawardene
Is former President Mahinda Rajapaksa and his baying ‘podujana party’ team members suffering from selective amnesia when they flay the Government on the floor of Sri Lanka’s Parliament for having presented the Lands Bill to the House without first putting it before the Provincial Councils?
Not all the masses are asses to forget
Lest we forget, this very same cursory treatment of the constitutional process by the Rajapaksa Presidency in respect of the Town and Country Planning (Amendment) Bill and the Divineguma Bill resulting in an adverse opinion by the Supreme Court led to the rude impeachment of then Chief Justice Shirani Bandaranayake and later, to bare bodied ruffians dancing outside her residence.
She was thrown out of office with less ceremony than what would attend the handcuffing of a common thief, with the consequent galvanising of a supine legal profession forming the backdrop to ouster of the Rajapaksas when presidential elections were prematurely and unwisely called for in 2014.
The fact that those truly spectacular gains were then frittered away by a Bar that ran headless in one and then yet another political direction without keeping above the political fray to ensure systemic changes to protect the Rule of Law is another matter all together. But when the former President and his supporters roar that procedure has not been followed by the Government where the Lands Bill is concerned, they must be curtly reminded that not all the masses in this country are asses to fall for such furious rhetoric.
Indeed, this Opposition and this Government only compete with each other to take the prize for clowinishly opportunistic political behaviour. Caught up in its ‘Colombo bubble’ from the start, the Government courted disaster by embarking on ambitious programmes of transitional justice and constitutional reform without sufficiently securing the ground.
Rural constituencies which had astonishingly switched allegiance from the Rajapaksa juggernaut to the ‘yahapalanaya’ camp in a manner that caught everyone by surprise were brushed aside. That wonderful advance was not held, secured or built upon.
The making of costly mistakes
Instead, costly mistakes were made with gusto, ranging from the Central Bank bond scam disaster to happily entertaining hordes of foreign ‘experts’ who flooded Colombo as the next ‘hotstop’ relaxation point for ‘countries in transition.’
Despite all this, laws were enacted or proposed that were less than transparent. One is, of course, the Lands Bill itself. The presentation of this Bill in Parliament was directly in the face of a previous Determination of the Court in 2003, striking down a similar attempt by this same Government. Was this Government not aware of that decison when it took the risk and received the same judicial answer again, namely that the Provincial Councils must be consulted? The fact remains that the Bill allows recipients of state land to transfer ownership and opens up the possibility of vast scale commercial buying up of state land from poor farmers who are mortgaged to the hilt. This is a valid concern. It was equally so in the background underlying the 2003 attempt as well.
The other and equally worrying example is the controversial Counter-Terrorism Bill which is now being readied, in all its voluminously problematic content, to be rammed through. Not content with allowing the April 2019 jihadist attacks to take place as a result of the Government’s inability to place national security above petty bickering, insult is being added to horrendous injury when these attacks are made use of to push for a vaguely framed counter terrorism law. This is despite repeated reminders by the Army Commander, by security and intelligence heads that new threats could be met by amendment of existing laws if needed. As previously analysed in these column spaces, the Bill allows for misuse and abuse of legitimate action.
Excessive discretion given to law enforcement agencies is also a major issue where senior police officers are themselves implicated in serious abuses of the law. Let us take a recent example that is evocative of this problem, which is the surreal case of the Kurunegala doctor put into police custody for suspicious assets amidst a media frenzy that he had been engaged in forced sterilizations of Sinhalese Buddhist women. To recap, the issue arose when a Sinhala newspaper led with the bold headlines that a doctor affiliated to Thowheed Jamath had sterilized hundreds of mothers despite the police denying knowledge that a complaint had been lodged.
The integrity of the inquiry processes
Later, the doctor was taken into custody on a different ground and kept without being released even after the Criminal Investigation Department (CID) had stated on record that, no evidence had been found regarding the allegation of forced sterilizations. He was released on bail some time thereafter. But what is relevant in the ‘Shafi case’ is that the CID made serious allegations against senior police officers as well as the judicial officer for subverting the proceedings, making false claims, allowing witnesses to testify in irregular proceedings so on and so forth, which are now being inquired into in separate processes by the relevant disciplinary authorities.
It is hoped that the integrity of these processes will not be compromised. But the question arises as to what would be the position if this case had occurred under the vastly more elastic provisions of Sri Lanka’s proposed Counter-Terror Law which gives far more discretion to police officers and consequently affords far more opportunity to subvert the legal process? Could it be said, pragmatically and practically, that systemic safeguards in place are sufficient to prevent such abuse occuring.
The answer to that question must be unequivocally in the negative as facts themselves vividly demonstrate. The hysteria that has gripped this country over this one case shows how dangerous it will be to have such a new counter-terror law in place that has not been pruned down to the bare essentials in an environment where basic Rule of Law protections have been weakened to the point of near total negation. In the ‘Shafi case’, senior officers of the CID have testified before the Parliamentary Select Committee that even their children have been pilloried for their professional action.
Clear warning signals
In fact, one senior and well reputed investigator went so far as to say that, where he is concerned, the damage has already been done but that he was speaking openly on these issues in order to prevent such abuse being heaped on other officers. In what percentage of cases will a criminal investigator stand up and speak out when, in doing so, senior police officers or judicial officers are exposed for abuse of power?
These are clear red signals that the proposed Counter-Terror law must be looked at afresh and meticulously assessed against constitutional protections. In the final countdown, this unhappily doomed ‘yahapalanaya’ alliance owes at least this to the people.