By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

In his address to the nation on ‘Victory Day’ this month, President Mahinda Rajapaksa’s assertion that ‘grease demons’, the Independence of the Judiciary, media freedom and human rights were all part of sinister foreign conspiracies to bring the nation to its knees, calls for measured scrutiny.

Somewhat bewilderingly meanwhile, a reference to ‘the Arab Spring’ was also thrown into this mix. One is not quite sure of the Presidential reasoning. Is a Lankan spring by pro-democracy activists, (as improbable as that may sound), to be regarded as part of this same alleged conspiracy? Certainly, it does not take remarkable prescience to guess the answer to that particular question.

Basic functions of the State

But the point is simple. While a ministerial minion hysterically screaming the same may be attributed to the Government’s perennial suspicion of foreign conspirators behind every proverbial bush, the Head of State is presumed to be subjected to higher standards of accountability. The core points of the Presidential assertion relate to the basic protections that the State is obliged to provide to its citizens, namely law and order through a proper working of state agencies, expression and information through free media and an independent judiciary.

These are not luxuries afforded to citizens but rights. If a Government is unable, through omission or commission, to ensure these rights, then the contract between the Government and the people is dissolved. Thereafter, what prevails is not a democratic process even though farcical elections may take place. The breaking down of the social contract is but a convenient euphemism (and the most fundamental justification) for a people’s revolution.

Selective application of legal machinery

Applied practically to the crisis of the Rule of Law that we face today, let us look more closely at the Presidential reference. When men daubed in grease engaged in attacking houses as well as women in selected parts of the country (generally excepting the South) involved a breakdown of law and order in its most essential form. When chased by enraged villagers during a time of widespread panic in villages as far flung as Komari and Akkaraipattu in the East as well as in the Northern peninsula and the Central Province, the attackers commonly fled into police stations and army camps in the vicinity. So inferentially and by a process of logical reasoning from the claim in the Presidential Statement, were these police stations and army camps also part of this same foreign conspiracy? Or (taking it to the other extreme) were these attackers part of a general collective delusion on the part of Sinhalese, Tamil and Muslim people all over the affected areas of the country? In what precise way were foreign conspirators involved?

These are questions in the public interest. Most importantly, these attackers disappeared as mysteriously as they appeared, without the state agencies properly investigating or prosecuting offenders. Thereby, was not a key duty and responsibility of the State bypassed? And when a protestor distributing leaflets asking that persons not affected by the war should not get new houses in the East during a function presided over by Economic Development Minister Basil Rajapaksa is arrested as was the case this week in Batticoloa but when parliamentarians accused of murder and political favourites are protected by government patronage, is not the law violated?

Where do victims go to?

Some days ago, a reader of this column sent in a relevant query as to whether the Attorney General is subject to judicial review when he/she acts or fails to act in violation of the constitutional role. Assuredly, the state prosecutor exercises a discretionary power which, as the Supreme Court rightly said more than decade ago ‘is neither absolute nor unfettered’ (Victor Ivan v Attorney General, (1998) 1 Sri LR 340). Rather, these powers are held in trust for the public, to be exercised for the purpose for which they are conferred and not otherwise. Supervision therein lies in the hands of the Court. However, when the functioning of the Court itself is interfered with, where can the citizen turn to?

So when the Chief Justice of the country is dragged before parliamentarians and grossly humiliated prior to being thrown out of office and replaced by a Government favourite, is it not the duty of all right thinking people to protest? If foreign governments express concern at this turn of events, how is that translated into a foreign conspiracy? When Sri Lankan journalists are assaulted, killed and when the entire media is unmercifully fettered to an extent that is unprecedented since independence, do we not have a right to talk about this?

Breakdown of the social contract

Some may think that these questions, may be better suffered in silence as befitting ‘the slings and arrows of outrageous fortune’ now being thrown at us. And in line with that famously painful soliloquy crafted so timelessly by the Bard, there are few who will, even rhetorically, be willing to confront this ‘sea of troubles’, with no firm guarantee that by opposing, such troubles will be ended. Yet, what the Sri Lankan people face is a basic breakdown of public trust. The consequences therein are enormous for our democratic functioning even though we may pretend to ignore this, ostrich-wise.

It is the duty of the State to investigate. It is the duty of the State to prosecute. It is the duty of the State to protect. These manifold obligations cannot be just brushed away under the glib excuse of foreign conspiracies. And as much as it may be parroted, such talk does not fool Sri Lanka’s rural audiences, whose silence should not be seen as unreserved support for this Government.

What we lack is a credible political opposition which can harness dissent from the cities to the villages, not necessarily to effect regime change but to bring about a fairer balance in political power. In sum, this is our most profound problem, not foreign conspiracies, even though that may be perceived to be a stirring theme on occasion by our politicians.