Was all the decades-long agony of disappearances, killings, mocking at the Rule of Law, subverting Constitutions and perverting justice, worth it?

By

Kishali Pinto Jayawardene

As President Gotabaya Rajapaksa accompanied by his spouse paid tribute a few days ago to Americans slain in 9/11, both with white roses in their hands at the memorial in New York, it is hard not to imagine how powerfully symbolic that gesture would have been if replicated on this country’s soil for countless victims of all ethnicities in Sri Lanka.

Immune to sorrows at home

‘At least, that’, one might say to the cynics who will undoubtedly and with good reason protest that symbolism, by itself, is not enough. Even so, such Presidential actions would have healed hearts, brought together grieving communities and deprived extremists on both sides of Sri Lanka’s ethnic divide, of fury laced powder for their divisive shots. But no, our Presidents have generally preferred to mourn fatalities overseas, express sympathy for that far away grief rather than the chest beating sorrows of innocents closer at home so to speak.

Instead, on the Wanni’s roads and culverts, protesting mothers whose children ‘disappeared’ as a result of state excesses more than a decade ago, die one by one, their agonies unsatiated. We learn through our religious teachings, from the Gautama Buddha to Jesus Christ, that the hatreds and fears of each generation breeds yet another generation gripped by those very same emotions.

So as the President informed the 76th session of the UN General Assembly this week that ‘terrorism is a global challenge that requires international cooperation, especially on matters such as intelligence sharing’ it is difficult not to be overcome by terrible ironies.

Horrendous mistakes have been committed in the name of the global war on terror by the United States and its allies, measured not only against the atrocities that are presently taking place in Afghanistan but in million other ways across the globe. In its own way, each has cost the community of nations dear, in terms, yes, of human lives but also of pitting entire peoples against each other using ancient hatreds, of claiming the moral high ground of a ‘rules based international order’ only to violate that at each and every point that this goes against the national interest.

The ‘war on terror’ and a fractured world

Indeed, only the most naive or the most blinkered will not acknowledge that the world today is a far more dangerously fractured place than it was on that most catastrophic of days when planes crashed into the World Trade Centre and other power centres of American military and political leadership. This set the course for a blatant casting aside of restraints on the violation of individual liberties which had hitherto governed the legal systems of nations upholding democratic values.

These ranged from practices of rendition to confinement of terror suspects in centres not subjected to the jurisdiction of the US courts, allowing practices of torture such as water boarding as justified by US Attorneys General once upon a time as we may recall and employing the Patriot Act to racially profile suspects. The list of what was permitted in the name of ‘counter terror’ became longer and longer. Unconscionable laxities by a nation once known for the magnificent moral leadership of Abraham Lincoln and Martin Luther King, these acts made the United States itself weaker on the global stage.
Keenly watched by tyrants in their respective nooks elsewhere, such departures from the Rule of Law were moreover simply used as a justification to heap more indignities on their subjects. So as Sri Lanka’s President exhorted the UN General Assembly to remember that his country had suffered from terrorism for decades and asks to combine forces to defeat the same, that is an old playbook that we have got tired of hearing. As much as the US-led war on terror has resulted in a more unstable world, the policies of successive Presidents in this country has made Sri Lanka into a ruinous basket case.

Sins at the door of all Governments

Decade after decade, our counter terror laws (and that too long before the global war on terror), crippled legal and constitutional safeguards despite the efforts of a few determined judges. Taken in sum, the Prevention of Terrorism Act (PTA) and regulations promulgated under the Public Security Ordinance (PSO) effectvely replaced the ordinary law. More recently, the International Covenant on Civil and Political Rights Act, contrary to its title, was used to deprive rights. And to be clear, these sins are at the door of all Governments.

We recall with disastrous clarity the ‘yahapalanaya’ proposed draft Counter-Terror Act (CTA) sought to be surreptitiously foisted on the people through a secretive drafting process. If allowed, that would have imported the US Patriot Act lock stock and smoking barrel into the country, thereby aggravating the harms inflicted by the PTA thousand-fold. Its clauses smuggled in espionage as an offence and made writings offending unity as a terrorist act. Robbery, extortion or theft, in respect of State or private property and causing serious risk to the health and safety of the public or a section of the public were also classified as terrorist acts in certain contexts.

As has been pointed out previously in these column spaces, the draft afforded excessive powers to the Minister to issue proscription orders against any organisation where (Clause 81(1)) the Minister has ‘reasonable grounds’ to believe that any organization is ‘engaged in any act amounting to an offence under this Act, or is acting in a manner prejudicial to the national security of Sri Lanka or any other country.’ Quite apart from the fact that the ‘reason’ of the Minister may be in question given that Ministers very frequently lack ‘reason’ altogether, the risks in these over-broad definitions are obvious.

Was all the barbarity of decades worth it?

In other words our memory cannot be that selective to gloss over the fact that the last exercise of drafting a replacement to the PTA during the time of a Government which was in the ‘good books’ so to speak of the ‘international community’ was problematic. In essence, what Sri Lanka needs is a narrowly tailored anti-terror law with tightly drafted clauses limiting themselves to the few acts that are not captured by the ordinary law enforcement regime and subject to rigorous civil rights monitoring and judicial safeguards.

This caution is key as the European Union embarks on the process of deciding whether to continue with Sri Lanka’s EU GSP Plus trade privileges or not. This exercise will include special scrutiny of the PTA and abuses continuing under terrorism statutes. All of these concerns cannot be met by bland Presidential reassurances in New York that Sri Lanka is striving to emerge from the depravities of terrorism in good faith. Far more is needed, starting from an acknowledgement of institutional and systemic injustice against minorities by the Sri Lankan State, the failure of justice systems, our courts of law and our prosecutorial offices in that regard.

Efforts to redress these injustices must not be cosmetic as it was during 2015-2019 with the palpable comedy of a four pronged transitional justice exercise which yielded nothing. Finally, there is a stark tragedy that stares at us. Today Sri Lanka is reduced to a nation left to the mercy of the vicious tug and pull of geopolitical pressure, a collapsed economy, a weak and dispirited people and a tottering legal system. Was all the decades-long agony of killings, disappearances, mocking at the Rule of Law, subverting Constitutions and perverting justice, worth it?

That is a hard question well worth asking ourselves.

Courtesy:Sunday Times