By Basil Fernando –
Basil Fernando
The United Nations High Commissioner for Human Rights, Ms. Navanethem Pillay, on February 11, 2013 issued the Report of the Office of the United Nations High Commissioner for Human Rights on advice and technical assistance for the Government of Sri Lanka on promoting reconciliation and accountability in Sri Lanka. This report is in terms of Resolution 19/2 of the Human Rights Council and in preparation for the debate on the resolution which will take place in Geneva in March of this year. The Sri Lankan government has virtually dismissed the report and yesterday (February 14) the government spokesman, when answering a media question about the report said that with regard to internal matters and matters relating to the Constitution the government is not answerable to anybody.
Reviewing the recommendations of the Lessons Learnt and Reconciliation Commission (LLRC) the High Commissioner has highlighted the following areas of concern: The rule of law and the administration of justice; credible investigations of widespread allegations of extrajudicial killings and enforced disappearances; detention policies; internal displacement and land issues; the right to freedom of opinion and expression; demilitarization and reconciliation and reparation.
The High Commissioner has rightly raised the rule of law and the administration of justice as the first issues in her list of concerns. In her opening paragraph Ms. Pillay states:
In its report, the Lessons Learnt and Reconciliation Commission stress that an independent judiciary, transparent legal process and strict adherence to the rule of law are essential for peace and stability.
This statement alone suffices to sum up the lack of any prospect of a genuine or fruitful dialogue between the High Commissioner’s Office as well as the Human Rights Council by the Sri Lankan government. Quite simply, the problem of the rule of law and the administration of justice are problems that arise from the very nature and the structure of the political system of Sri Lanka. The government of Sri Lanka relies completely on the system of governance which has been developed as a system where the executive president has absolute power. To question that is to question the very basis of the Mahinda Rajapaksa regime. Naturally the regime will resist any kind of challenge to the manner in which it rules Sri Lanka as interference into the internal affairs of the country.
Thus, the discourse on Resolution 19/2 begins in a deadlock. All the problems that the High Commissioner has highlighted from the recommendations of the LLRC are issues that challenge what the government has been doing on the basis of its interpretation of the 1978 Constitution, which is further strengthened by the 18th Amendment to that Constitution. The government’s express wish is to go even further and to perfect the powers of the executive president as the absolute ruler. This position is in direct conflict with the issues raised by the High Commissioner as well as the movers of Resolution 19/2.
There is no way to get around this fundamental conflict between the nature and the structure of the Sri Lankan government and the fundamental issues raised by Resolution 19/2. The Mahinda Rajapaksa regime operates on the basis that the rule of law and the administration of justice are of no concern to the government. Anyone who does not understand this fact simply has no grasp of the operation of the political system in Sri Lanka at all.
The government has illustrated its approach to the rule of law and the administration of justice in the manner in which it acted and continues to act in relation to the impeachment of the Chief Justice, Shirani Bandaranayake, and the appointment of the new chief justice. To all those who raised their concerns from among the local community, as well as from all the authoritative international agencies, the government stated in plain language, “Just go to hell”.
It is quite logical for the government to take that position. It knows that the style of rule it has developed in the country is incompatible with the basic norms of the rule of law and the administration of justice. Internally, the government has taken the position that it will ignore all these rules and undermine the judicial institutions as much as is needed to safeguard its style of rule.
In yesterday’s briefing to the media the government spokesman said that the government may be willing to discuss any specific issues raised but it will certainly resist any discussion into matters which are internal affairs and which are related to Constitutional matters.
The problem with the LLRC was that it pointed out some very key issues which undermine the rule of law and the administration of justice in Sri Lanka. However, it did not go far enough to point out that all the problems it has identified arise from the very nature of Sri Lanka’s Constitution itself. Of course the LLRC perhaps could not go that far as its own mandate was derived from the president and entering into a direct assault on the presidential system itself was perhaps, not within its mandate. What the LLRC did was to make a critique by way of implication. In local parlance this is called “Taking medicine without the knowledge of the throat”.
This is the very same problem that the movers of Resolution 19/2 and the High Commissioner will be faced with. The problems enumerated by the High Commissioner arise from the very operation of the Constitution itself. When the government says that what it does is justifiable in terms of the Constitution it is, in fact, telling the truth. It is using the best excuse it has by asking, “Do you want us to act against our constitution”?
That was also the question it asked from all those who criticised them about the government’s approach to the removal of the chief justice of the country without even affording her a decent inquiry. The government blatantly said that it was not obliged to provide such a decent inquiry as the Constitution has allowed it to act in any barbaric manner it wishes. “If the constitution was bad that is not our fault”, was the government’s excuse.
Can the movers of Resolution 19/2 and the High Commissioner face this argument by the government openly and directly? That is the issue that anyone who is seriously concerned about the rule of law and the administration of justice in Sri Lanka should deal with and no other issue regarding human rights can be dealt with unless this problem is addressed.
This is also the issue that the Tamil Diaspora is unable to deal with. The Diaspora calls on the government to provide justice for violations of the rights of the Tamil people. However, dealing with justice for those wrongs cannot be done as long as the Sri Lankan Constitution remains what it is. When the total structure of governance is incompatible with the rule of law and the administration of justice it is simply an illusion to demand justice on some issues under the same constitution.
This is also the issue that prevents the Sri Lankan opposition from coming together with an effective political programme for ensuring the rule of law and the administration of justice in Sri Lanka. The leading opposition party, the United National Party (UNP), refuses to take the issue of the Constitution head on. It says that if the 17th Amendment to the Constitution is restored it will be satisfied. However, there is no way that a government which has gone so far as to establish the 18th Amendment and wants to have even further amendments to make its rule absolute, is going to reinvent the 17th Amendment. As long as the UNP is unable to disown the 1978 Constitution and promise to do all it can to see the abolition of this constitution altogether, it has no honest political message for the country.
Thus, the UN High Commissioner’s recommendations and the debate on Resolution 19/2 will only once again highlight the political deadlock that Sri Lanka is faced with. All attempts to deny this deadlock will only further strengthen the attacks of the Rajapaksa regime on the rule of law and the administration of justice.
The full report of the United Nations High Commissioner for Human Rights may be found here
dicky Bird / February 15, 2013
Jokers mincing words. For basil F’do anything to latch on to sing for his supper is good enough.
Pillay you said, “…and no accountability for alleged war crimes and mass killings.” I believe you were absolutely right for once, as I assume when you mentioned “no accountability” you were really referring to India, Canada and Norway’s explicit aiding and abetting the Tamil Tiger terrorists to sustain their terrorist war in Sri Lanka for 27 bloody years; and the “mass killings “you were referring to that of the Tamil Tiger terrorists which were almost an everyday affair during the war years. Am I right?
Pillay, you said, “There has been no serious reconciliation…” Now you are being an absolute joker! Come again, Pillay. I think you should listen to Australia’s Deputy Leader of the Opposition Julie Bishop’s Press Conference on YouTube, on Sri Lanka after she returned from a visit to that island. Of the many things she touches the subject of “reconciliation.” An absolute flip-side from what you had said.
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Sellam / February 18, 2013
Mr. Basil Fernando has given his views as of the present situation in Sri Lanka and that of the President. It is a good analysis. Dicky Bird who ever he is, has not fully understood his comments. Navin Pillai has a job to do under the UN Charter. But she seems to be very lenient towards Sri Lanka. I do not know the reason why. An independent Investigation should have been carried out long ago into the vast killings of civilians by both parties, the armed services and the LTTE for the people to know the truth. A muderer cannot investigate into his activity. Simple as that. The report of the LLRC is not a complete one, although it has recommended some action by the goverment. Even that recommendations are not being carried out by the Government. Rajapaksa has a different agenda! Time will tell.
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kali / February 18, 2013
Accountability is a pre reqisite for Reconciliation. It therefore goes without saying that reconcilation cannot take place or possible unless those responsible for the genocide are brought to books. It is a tall order but we can make it happen with international backing and the omen is looking good.
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Antany Peter / February 19, 2013
President J R Jayewardene wanted to develop Sri Lanka with the help of the US; however, India felt threaten by the Sri Lankan government’s action, and created the Tamil armed groups to keep Sri Lanka under its wings. However, India also understood that letting the Tamil armed groups grow beyond its control would be detrimental to India. This is the reason Prime Minister Rajiv Gandhi reached a very good political solution for the Tamils under the Indo-Sri Lanka agreement. The West understood what India did; therefore, pushed the LTTE to fight against India through the Tamil diaspora. Unfortunately the Tamil diaspora and the LTTE did not see what Rajiv Gandhi did. The West also broke the 2002 ceasefire agreement between the LTTE and the Sri Lankan government through the Tamil diaspora. A reasonable political minded person knows that Prabhakaran would not have fought against India or broken the 2002 ceasefire agreement with the Sri Lankan government without the push from the West.
The Western governments are making sure through their intelligence network that the Tamil diaspora have not accepted the Tiger’s defeat and pressure Tamils to reject any dialogue with the Sri Lankan government. The West is only 8% of the world population, it must divide every community and country to rule the world; we must understand this. “Strike the Shepherd, and the sheep of the flock will be scattered”. Once you have eliminated the Shepherd, then you can do whatever you want with the sheep. This is what happening to the Tamils. India created the LTTE and eliminated the Tamils leaders, now India and the Westerners are using the Tamils to fulfil their interests. The Tamils who have the knowledge can’t help the Tamils, because the Indians and the Westerners won’t allow the smart Tamils to take the leadership. If they do, then they can’t use the Tamils to fulfil their own interests. I personally believe that the Tamils need a strong leadership, before even think about autonomy.
The Westerners must walk the talk, before preaching to the others. Australia abolished its white Australia policy in the 1970’s, but its constitution continues to portraits white Australia policy. The Australian government still refuses to acknowledge indigenous people as the first inhabitants of Australia through its constitution. I found that Canada does not practice what it preaches to the developing countries either. The ideology and histories of Australia and Canada are the same. Canada also treats its First Nation People badly; and the Canadian government also feels uncomfortable with my writings. Canada allows its First Nations to live in their lands, but refuses to give ownership to them, in order to use the resources without any restriction. This tactic also allows the Canadian government to have full control of the money profited from the sale of resources. The Westerners invade others’ countries, but preaching democracy and human rights to the developing countries.
Due to my writings, the New Zealand government started to tighten of the noose that is around my neck. I can’t get a job or accommodation. It is very obvious to me that the government is preventing me from getting a job to stop me having a website, or publishing a book, to hide the West’s dirty democracy. The way they create ill stories to isolate me from others is really unbelievable and shocking. The Western intelligence members use my email account and mobile phone number to send dreadful emails and text messages to others, in order to make others think that I am not normal. This is how they make others to avoid me in order to hide the truth. The Western intelligence members also follow me wherever I go and spread lies about me, in order to keep me in isolation from others. They are not keeping me in a prison cell, but in an open air prison; so they can fool others by preaching democracy and human rights. Ask Julian Assange and Bradley Manning, they will tell you more about the West’s democracy and human rights.
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