29 October, 2020

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Post-War, The Rule Of Law Does Not Exist In Sri Lanka

By Kishali Pinto-Jayawardena

Kishali Pinto-Jayawardena

Kishali Pinto-Jayawardena

It has been four years since the Liberation Tigers of Tamil Eelam were defeated by Sri Lankan government troops following nearly three decades of civil war. Today, the absence of the rule of law in Sri Lanka has made the holding of the Commonwealth Heads of Government Meeting an exercise in barely concealed cynicism for ordinary Sri Lankans.

In many respects, the protection of basic liberties for all Sri Lankans – Sinhalese (the majority community) and the minority Tamils and Muslims – is worse off than when the war was on. Tamil people continue to be subjected to arrests, detentions and abductions. Those who lost family members during the war still vainly search for the “missing” with no answers from the authorities.

Places of religious worship are vandalised and Muslim business establishments have been attacked by extremist groups. In all these cases, the government has not investigated or prosecuted those responsible. Meanwhile, across the country land owned by various communities is being acquired under the government’s post-war development drive without land owners being paid adequate compensation.

The militarisation of the country is not limited to the Tamil-majority north and the east of the country. In the south, the army has been called in to shoot Sinhalese protesters demanding clean water. Three died as a result.

Outraged villagers came before national television and said: “If this is the way that they treat us, we cannot but wonder as to how the army would have treated Tamil civilians during the war.”

Ironically, these villagers hailed from a community that had donated large amounts of blood to government soldiers during the conflict. As one villager said: “We would not have done this if we knew that this is the way that they would act.”

Sri Lanka’s constitution and the law has become of little value. What is enforced are political realities and connections; if one has economic or political privilege, one is above the law.

Yet it must be clearly understood that this deficit of justice predates the Rajapaksa presidency. Rather, this is a logical culmination of decades of impunity and the degeneration of the rule of law.

Sri Lanka should not be defined by the three-decade war between government forces and the LTTE. The LTTE was a brutal, totalitarian terrorist group pioneering suicide bombings, which was met by equally brutal state action, but the culture of state impunity in Sri Lanka has a wider reach. In the 1970s and again in the 80s, violent uprisings by youth militants of mainly Sinhalese ethnicity who pledged to overthrow the state were responded to by equally violent counter-terror measures by the government. An estimated 40,000 to 60,000 young people died in the second uprising. Apart from isolated cases, these victims have not been afforded justice.

And what makes the present so different from the past is that the Sri Lankan judiciary has been fundamentally rendered inconsequential in regard to the enforcement of rights.

Whereas a decade and a half ago, the courts provided remedies for breaches of fundamental rights, today there is little hope of seeing justice done in the courtroom due to the politicisation of the judiciary.

Several months ago, the Chief Justice was thrown out of office through a hastily rushed-through impeachment procedure in parliament that disregarded basic norms of fairness.

The military was unprecedentedly brought into the heart of the courts complex. The courts advised that the impeachment was illegal and religious leaders preached caution but these appeals were disregarded. Calls for restraint by Commonwealth lawyers and judges were also disregarded. President Mahinda Rajapaksa’s appointment of a new Chief Justice has not rectified this unconstitutional process.

And underpinning this is the omnipresent executive presidency. With the earlier two-term time limit on the election of an incumbent abolished by Rajapaksa and a massive percentage of public funds in the hands of himself and his brothers and key public departments such as the Office of the Attorney-General and the Department of the Police directly under him, it was little wonder that UN High Commissioner for Human Rights Navi Pillay said Sri Lanka was taking a turn towards authoritarianism during her visit in September. In fact, this may be a classic understatement.

Finally, it is a relevant question as to whether the rule of law has ceased to have any relevance for the Commonwealth? This is a question that remains unanswered.

This is a question that is also relevant to Australia as it hands over the chairmanship of the Commonwealth to Sri Lanka this month. To what extent is Australia seen to be upholding the core values of the Commonwealth?

The perception on the part of many is that there is a quid pro quo in that Australia will provide unconditional support for the Sri Lankan government in exchange for collaboration in tackling the waves of illegal boat migrants. Moreover, the Australian government’s economic rationalist approach to targeted aid funding will weaken whatever democratic structures are left in Sri Lanka. Certainly these matters should be of concern to Australian policymakers and the Australian citizenry as they remain highly damaging to Australia’s image as an Asia-Pacific leader.

*Kishali Pinto-Jayawardena is a Sri Lankan lawyer visiting Australia on the distinguished visitors program of the Australian National University. This column was published in The Australian, November 15th 2013.

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Latest comments

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    How do you know this . dont you live somewhere is Australia .

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      Abhaya Premawardene, She is a highly respected legal professional and lives in Sri Lanka. She has always stood up to injustice with unwavering commitment from long before the Rajapaksa presidency. You can rely on her judgement.

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        *Kishali Pinto-Jayawardena is a Sri Lankan lawyer visiting Australia on the distinguished visitors program of the Australian National University. This column was published in The Australian, November 15th 2013.

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          “visiting Australia”
          So clearly she doesn’t live in Australia , though even if she did it would not diminish the content of her article as Sri Lanka is a dangerous place for reporters who don’t tow the government line.

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      The title says it all… These guys are trying to discredit our laws. We have new roads with lovely paint work.. which these idiot citizens don’t follow. The rule of the law is for everyone and I am so glad that the village people are starting to understand about the rule of law..

      These guys have been living like animals for generations, finally they are being taught how to live a prosperous life. Thank God for this government that our kids and the generations can finally have a future without these terrorist, we must have more army and police to make sure this ltte war never start again.

      Singhalase rule this land and we need to make sure these Tamil are kicked out from our land. That goes for the Muslims and Veddas as well. These guys are stealing our valuable air and should not be breathing.. Jayaweewa.. God is great..

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    Kishali,
    This whole CHOGM lark was all a bit of a mix up and was forced on the government of SL as long ago as 2009. MR and his brilliant advisers thought ‘great idea for a photo shoot’ but it ended up like having the dana before the funeral. What an almighty cock up! We all learned an unforgettable lesson; always check that everyone in the house is happy before sending out party invitations. Everything else that you have touched on is re-boiled cabbage.
    Take your time and enjoy the many delights of down-under and whenever you come back, don’t be surprised, nothing would have changed.

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    Hello Kishali,

    You said ‘deficit of justice predates the Rajapaksa presidency’. This I agree with. However in the same voice you say only a decade and a half ago one could have recourse to justice through the court system. Well I tell you Kishali, there was no such recourse. The rich and the powerful were able to use the court system to their advantage. But the masses had nought.

    Well with all the errors of governance that you have enumerated against the MR regime, still CHOGM took place. World leaders turned up in the presence of MR and shook his hands cordially. All these leaders knew what occurred during the last stages of the war, they all know about the white vans, they all know that thugs rule the roost, they all knew about the illegal removal of the CJ, and yet they came in droves to be felicitated by a leader people claim is drenched in blood – even the Australian leader pathetically scrambling over others to shake MR’s hand.

    Well Kishali that is how the cookie crumbles all over the world and since time immemorial. CHOGM was never an exercise for the benefit of the ordinary citizenry.

    Anyway the Sri Lankan citizenry also had some choice crumbles to savour. The city was cleaned up. The drains and festering water holes of Colombo were sprayed. Mervyn was kept under house arrest. The police behaved themselves. Even the BBS boys kept out of mischief. The airport road was opened up. And the grieving mothers of Jaffna were able to get DC to make an ultimatum to MR even though this ultimatum will defuse itself by March 14.

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      BBS Rep

      “and yet they came in droves to be felicitated by a leader people claim is drenched in blood – even the Australian leader pathetically scrambling over others to shake MR’s hand.”

      Just before their sacrifice, the animals are garlanded and worshipped.

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      I COULDN’T HAVE PUT IT ANY BETTER. WELL SAID BBS REP.

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    You may be confusing rule of “lawyers” with rule of law. Dis the people at the ANU pay you well. Few dollars in the bank always helps. Doesn’t it?

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      ‘Lawyer’ – possibly of that de facto Chief Justice type! Or maybe abhaya coyly hiding behind a bush!

      So are you not aware that Western universities, in these times of recession, have few dollars to spare and they are vey jealous about whom they give them to? With good reason.

      But what about the misbegotten dollars that your paymasters, the government, gives you for this drivel? Do enlighten us. I am sure that this would be ‘more than a few’…

      Not to mention the dollars spent for CHOGM which turned out to be a hit for the LTTE diaspora and all the others, including Bell-Pottinger for badly managed propaganda!

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    Mahinda Rajapakse dreads the day he will become a common citizen – after all,he cannot become President for Life.
    When that day comes,all his, his siblings’ & cronies’ corrupt deals will be bared.
    All his supporters & bootlickers will desert him.
    His victims will be baying for his blood.
    This is the fate of all dictaters and tyrants.

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    However,the “Rule of low-bred does exist in Sri Lanka

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    Collins On Facts:
    It is the nature of truth
    to struggle to the light.
    Wilkie Collins, novelist

    However much Sri Lanka tries to hide the truth of the massacre of 147,000 innocent Tamils in Vanni, the truth is slowly, but steadily emerging.

    Lawlessness is the name of the game of the MrRa junta!

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    this is a lovely place for the terrorists since everybody has abandoned tamilnet . They can slap each others backs and say how great they are . lol

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      Oh dear, Abhaya boy, you are getting your pants perpetually in a twist, eh? Relax, do. Doff a beer and chill out. Don’t get so green eyed in regard to people just because they write honestly and no one can actually challenge them on the facts except write rubbish.

      And read English properly – if you can. Kishali is not living in Australia. She has been invited by one of its prestigious universities to visit on a senior fellowship. Pity, they should have invited you. But no one knows who you are!

      And these barbs of terrorists have now got a bit tired, have they not? We are all quite tired of this anyway. Do change your propaganda tactic and be a bit cleverer.

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      Talk about Rajapaksa dictatorship and its apologists as usual change the subject .

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