By 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.