By Kishali Pinto-Jayawardena –
Kishali Pinto-Jayawardena
One cannot fail to be amazed at the considerable ingenuity if not wild imagination with which the government’s National Plan of Action to implement the recommendations of the Lessons Learnt and Reconciliation Commission has been drafted. Some responses invoke chuckles of glee whilst other promises invoke far more heated reactions given the sheer chutzpah with which they have been made.
Lack of requisite political will
For example, the unfortunate inhabitants of this blessed land would be vastly relieved to learn that this administration has committed itself to disarming persons in possession of unauthorized weapons and to prosecute them in the impressively speedy period of six months (point 9.204).
Yet if this process is as uncomplicated as is made out to be, why was such a disarming exercise not carried out for so long? Several deaths would have been spared, among them an innocent British tourist in Tangalle who ironically enough had been engaged in humanitarian work in the Gaza as well as a UPFA politician who lost his life in a deadly skirmish with a UPFA parliamentarian cum drug lord. It is most relevant that the latter is rumored to be back in the country but is well beyond the reach of the Criminal Investigation Department, protected as he is, by the ruling hierarchy. Did we need a Lessons Learnt Commission and an imaginative Action Plan if the requisite political will to disarm political thugs was evidenced? The answer to that question is all too self evident.
Other impressive but incredulous promises
We proceed from this wonderfully Alice in Wonderland guarantee to the even more impressive promise that allegations, (against whom or in regard to what is not specified save for a mention of Bhareti, Karuna, EPDP extortion and a Major Seelan), will be prosecuted and punished irrespective of political links within that ubiquitous period of six months (point 9.213). The authorities mandated with this task is the Department of the Police, the Department of the Attorney General and the Ministry of Justice which have all in one voice, promised solemnly to ‘conduct investigations speedily and ensure that the Rule of Law prevails having due regard to the Constitution(sic) guarantee of the equal protection of the law.’
This promise literally beggars the imagination. If there was one overwhelming problem with the Rule of Law in Sri Lanka, it is the concretely evidenced and extensively documented lack of independence that dogs these two key implementing institutions, namely the Department of the Attorney General and the Department of the Police. It is precisely due to this problem that proper investigations and prosecutions are not carried out while politicized prosecutions are evidenced aplenty. While this trend was certainly seen on the part of past Presidents, it was elevated to a veritable art by this Presidency.
Laws such as the 1994 Convention Against Torture Act which with all its flaws could have used to set right the deficiencies of the penal regime in prosecuting torturers, were deliberately disregarded by state prosecutors in furtherance of state policy, no less. Sri Lanka’s former Army Commander and Tamil journalist J.S. Tissainayagam were included among those against whom the law and prosecutorial policy was unforgivably twisted in the objective of obtaining politically motivated verdicts. Presidential pardons then followed as if this apparent magnanimity would suffice to wipe out the shame of the subverted process through which those who angered the regime were punished.
Inability to protect the judiciary
In the face of this body of evidence and given that no change in state policy has been shown in terms of practical reality, are we supposed to believe that, magically as it were, these institutions of the police and the prosecution would be bestowed with the requisite independence from the executive in order to carry out their functions without fear or favour? The Action Plan promises an ‘increased rate of successful prosecutions’ in six months. This is stretching our credulity a bit too far, even for the incredibly supine society that Sri Lanka has been reduced to now.
The backlash from the attacks on the Mannar court house and the chambers of a judicial officer continues for a further week without any concrete arrests taking place. Last week, this newspaper highlighted the fact that preliminary investigations had indicated the complicity of state officials in the attack. Has action been taken against them in order to justify this government’s claims that it will protect the judiciary? If even as serious an incident as the Mannar courthouse attack cannot give rise to an effective government clampdown on those responsible, what are we to believe of its promises in the National Action Plan that it will ensure speedy prosecutions of those against whom ‘allegations’ have been made in the most contentious of circumstances? These are fairy tales, fit only for the childish and the naïve.
Using the police for political ends
Meanwhile, this Plan contains a series of other promises the dissection of which would require far more space than that contained in a newspaper column. A few warrant particular mention. We are told, for instance, that the all important delinking of the Department of the Police from the institutions dealing with defence (point 9.214, 215) would be referred to a Parliamentary Select Committee (PSC) as it deals with ‘an entirely policy/political issue.’ This is a convenient euphemism, of course, for shelving this recommendation which is by far, one of the most far reaching of the LLRC’s points of emphasis.
As experience has surely shown us, a PSC is the Siberia of effective political action in Sri Lanka This column predicted all along that the LLRC recommendation of delinking the Department of the Police from the Ministry of Defence would get short shrift as it would immediately undermine the intensely anti-democratic nature of this administration in using the police for its own ends. This end result was therefore eminently predictable.
Just another consummate exercise in deception
But most amusing of all is the Action Plan’s affirmation that an independent Police Commission and an independent Public Service Commission exists, thereby satisfying that part of the LLRC’s recommendations.
Let us take the notion of what is meant by ‘independent’ which the incurably optimistic framers of this Action Plan appear to have lost sight of. A glance at the country’s case law would provide many answers to this core issue. As the Supreme Court of Sri Lanka has categorically stated, the requirement of ‘independence’ must be satisfied through firstly, the appointing authority, secondly, security in tenure of office and thirdly, freedom from governmental control (Determination Re The Broadcasting Authority Bill, S.D. No 1/97 – 15/97, delivered on 5th May 1997).
Could it be honestly said that the ‘constitutional commissions’ established under the 18th Amendment to the Constitution satisfies all three requirements? What has this NPC done except to admit that it can only mediate and has no effective power to actually bring about change in the police force. This shameful admission completely distinguishes the current body from its predecessor Commission under the 17th Amendment which was too ‘independent’ and was therefore dispensed with summarily.
In sum, for those intimately acquainted with several typically unfulfilled promises contained in this Action Plan, this document only amounts to just another consummate exercise in deception. Its dexterity in using the LLRC for political ends is obvious. And as citizens of a country on the verge of falling into the abyss, we can only roundly condemn its fundamental lack of honesty and sincerity.
Pandukabaya de Silva / August 5, 2012
What stupidity! How can increased prosecutions be seen in six months?
Even if the Americans swallow this crap, do these government guys think that we are ‘konde bandapu cheenu’?
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Lasantha Pethiyagoda / August 5, 2012
I feel sorry for Kishali Pinto Jayawardena. All her articles in the Sunday Times and Colombo Telegraph lament the breakdown of civic-minded administration in Sri Lanka.
She lists all the government’s wrongdoings as a matter of course. She even makes great efforts to analyse at length, the legalities, morality and ethical aspects of policy decisions, agendas, motivations, ulterior intents and how they might affect social phenomena.
Yet, she appears to be merely expending her energies without much success. This is not to deny that she has good intentions, but reading what sometimes sound like tirades can turn people off.
I feel that instead she must attempt to suggest some positive actions that ordinary people might benefit from undertaking in their own little ways, to make their lives better under the circumstances. She will probably feel happier too, that way.
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Pandukabaya de Silva / August 6, 2012
Who is this Lasanda P.? I could not help laughing at her presumption in advising others to be happy!
She must be very ‘happy’ writing her gems of presumptuously silly comments from overseas while others risk their lives here.
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gamini / August 6, 2012
Lasantha Pethiyagoda, why do you feel sorry for KPJ for bringing out the woes, hypocrisy and the break down of the Law and Order System this society has to face? Why, do you feel justified if she refrains from stating the excesses and the ommissions and commissions? If everyone thinks the way you do and none speak of the villany committed by these Corrupt Leaders, everything will be tickety Boo! Is that what you want? I think you better heal thyself first, before you feel sorry for others. We have enough arm chair critics in the country. We could well do without those who have emigrated.
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fazeela / August 6, 2012
Lasanda, you need to wake up to the fact that all the voices of sanity in Sri Lanka are ‘expending their energies without much success’ like Tisaranee Gunesekera, Kishali Pinto Jayawardena, Namini Wijedasa, Kumar David and so on. We need these voices and these ‘tirades’. Do not underestimate them. It is because of such pressures that the LLRC report came out, that the government is now at least reacting in some way to demands that some difference must be seen. Why else do you think for all this action? Because they have reformed themselves.
You seem to be a ‘head in the clouds’ character based in a foreign country and who perodically descend to offer grave contemplations on the situation here. All these writers engage in ‘tirades’. They do that because ‘tirades’ are needed given what has happened to Sri Lanka.
Looking at the legal and constitutional consequences of what the government is doing is quite essential. What you appear to prefer as an alternative, that is, to write so that ‘ordinary people’ will undertake positive action ‘in their own little ways’ is vague, silly and does not make sense.
This kind of writings on ‘positive action’ can also be left to other Gandhian writers. Why don’t you start writing regularly to Colombo Telegraph in that way without lecturing others? Doing is a lot more difficult than merely criticising.
I have only a little idea on who Kishali is but must say that from the few who wrote coming from the legal community on the Mannar clashes, she was the only one who appreciated the plight that the Muslim community in that area have been put into.
I applaud her courage and her balance and wish that other pettier individuals would do the same.
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Chrissy Abeysekera / August 7, 2012
Lasanda’s comment is easily understood as cowardly and mean spirited. Her claws appear to be showing.
MR is able to ride roughshod over people because of this Sri Lankan mentality – don’t dare to challenge the powerful but work with the ‘small people’!
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Lasantha Pethiyagoda / September 4, 2012
I must apologise to those respondents with good intentions who appear peeved at my “silly” remarks. Yes,do continue the good work in your own styles. My best wishes for your success.
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