By S. Narapalasingam –

The population of Sri Lanka is expected to reach 25 million by 2042. It was 6.657 million in 1946, the last census before independence in 1948. It is unimaginable how the 25 million will live, if the present muddled conditions in Sri Lanka continue in whatever form. The governing system created after independence has thwarted national unity and the steady economic and social advancement of the island nation that would have facilitated all citizens to co-exist amicably as children of one motherland. The lack of political will to take the right decisions at critical times, when opportunities came to settle national issues (the ethnic problem is now correctly recognised as a National Problem) is also a negative feature of the political culture that emerged after independence. The behaviour of politicians based on their desire to seek power for helping themselves and their families and friends has done immense damage to the society. The title of this article aptly reveals the main reasons for the mess in the country, which the present United National Front for Good Governance (UNFGG) government is trying to oust.

Decisions taken for narrow political or personal gains, disregarding the wide public or national interest became more visible with the astonishing rise in corruption and fraud in government, which shockingly is still of no concern to many voters as seen from the continuing support given to corrupt politicians. The huge amounts lost unscrupulously have been a burden to the public in the short and longer term. In this background, the call for good governance last year was responded positively by concerned voters. Apparently, the continuing malpractices contrary to the expected principles of good governance have disillusioned the advocates. Recently, many have conveyed their utter disappointments publicly. One positive feature of the visible change in the political system since early 2015 is the accessibility of such articles in both the print and electronic media.

The murky situation created by the failures to take timely actions to deal effectively with national problems helps the ‘patriots’ to exploit it for their own advantage. This senseless politics, influenced by narrow short-term interests of deceptive politicians must not be tolerated by the civil society. Not only the egocentric politicians but also many voters backing them are responsible for the uncertain future of the nation that emerged peacefully as one unified independent Ceylon in 1948, after centuries of foreign rule. It was the British colonial government that brought the entire island under one central administration. The way it functioned after independence was very different, causing many national problems.

Deceptive promises

In Sri Lankan politics, there are two kinds of promises. One relates to actions to be taken in the national interest and the other for political advantage. The latter is for winning votes in a racially divided country. A salient case here is the enactment of the Sinhala Only official language Act in 1956, soon after the general election. This, obviously, was not in the national interest; nation means not the Sinhala nation of the bigots but the real multi-ethnic nation. Besides the promise to abolish the Executive Presidency, there are several others given during election campaigns but ignored later. Let me focus on the recent ones that seem to have disillusioned many, who wanted good governance denied by corrupt politicians, who blatantly misused the power given to them by the people for personal or other narrow purposes, instead of serving the people and the nation which also benefit all citizens. In real democracy, the representatives of the people get the power from the voters on trust to act on their behalf.

Interestingly, abolishing the Executive Presidency has been portrayed as high priority before the elections but ignored after gaining the powerful Post. The promise of ‘good governance’ which resulted in ousting the last President in 2015, who sought a third term as Executive President by amending the Constitution (18th Amendment) still remains as a promise. Apparently, the advocates of good governance wanted the cleanup to be swift and certainly not for giving promotions to the alleged offenders. The recent controversy over the appointment of Additional Secretary to the Home Affairs Ministry is a striking case of the disillusionment of the civil society. Because of their objection, the appointment was revoked later.

There may be practical reasons for the present United National Front for Good Governance (UNFGG) government that promised good governance to clean up the mess quickly but the fact the country is incurring heavy losses cannot be ignored. This has been exposed by concerned persons. Nagananda Kodituwakku’s article, ‘Multi Billion Tax Revenue Fraud By Yahapalana Group Exposed’ posted by Colombo Telegraph on June 1 has drawn attention to the tax burden of civilians, while “all 225 MP elected to the parliament in the General Election held in August last year, including those who were rejected by the people yet nominated as MPs through the National list, have been issued with a tax free permit by yahapalana (good governance) administration to import a vehicle (petrol or diesel) up to the value of US$ 62,500.00. These permits have been issued with no limitation on the engine capacity and there is no restriction whatsoever on the transfer of vehicles imported on these permits to any…” No wonder politicians seek a seat in Parliament for their benefit! They have to be in Parliament for only 5 years to qualify for lifetime pension.

According to Manushi Silva (Daily News May 28 2016) based on information obtained from Left Circle (LC) and Anti Corruption Front (ACF) activists, there is a group within the present (UNFGG) government keen ‘to protect the corrupters’. This certainly is not in the public or national interest, a negative feature of Sri Lankan politics that has contributed to several national problems since independence. The education and health sectors which had played a major role in serving the needy people need more funds to function effectively. Public funds siphoned off illegally denied the people of better government services. Politics in Sri Lanka is not only deceptive but also divisive for the benefit of those seeking power for achieving their narrow aims.

Ignoring Commitments to UNHRC

Recently, British Minister of State in Charge of the Foreign and Commonwealth Office Hugo Swire is reported to have said, “Sri Lanka is yet to fulfil the commitments made to the international community”. He also supported the international approach to the human rights situation in Sri Lanka. The British Minister expressed these views to ‘The Hindu’ newspaper while on a visit to New Delhi.

Sri Lankan government’s current position on alleged violation of human rights (war crimes) is different from what was agreed in Geneva in the co-sponsored resolution on investigation of war crimes committed by both sides. The co-sponsors were: Albania, Australia, Germany, Greece, Latvia, Montenegro, Poland, Romania, Sri Lanka, the former Yugoslav Republic of Macedonia, United Kingdom of Great Britain and Northern Ireland and United States of America. Passed without opposition, the resolution acknowledged that terrible crimes were committed during the prolonged war that ended in 2009 and called for a process of truth, accountability and reconciliation. It fell short of endorsing fully the clear call by the High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, for the creation of a special hybrid court, with international judges and prosecutors at its heart, to try the offences.

The resolution effectively endorsed the Sri Lankan government’s plan to set up “a Sri Lankan judicial mechanism” whilst stressing that the importance they attach to the participation of “Commonwealth and other foreign judges, defence lawyers, and authorized prosecutors and investigators”. The government’s latest stand is different in that there is no room for the participation of foreigners in the fact-finding process. Apparently, Sri Lanka’s diplomatic efforts have helped to opt for a domestic inquiry. This is the current position of the government on alleged crimes committed in violation of international covenants, yet to be endorsed by other co-sponsors of the UNHRC Resolution. The coming UNHRC session in Geneva will reveal their current stance on the progress made so far in seeking truth, justice and reconciliation. The killings of persons sheltered inside the ‘No Fire Zones’ have been condemned widely by various organisations concerned about human rights and humanitarian values. The undue delay in the process of seeking truth, justice and reconciliation is now of great concern to all, looking forward to the emergence of new Sri Lanka functioning according to the Buddhist philosophy

Nevertheless, the expectations of the international community like many Sri Lankans are for meaningful reforms for good governance with no chance for denying peace, national unity, rule of law, fundamental human rights and socio-economic development. Many are dissatisfied with the recent happenings, contrary to the principles of good governance. The glaring delays in the judicial process have also disappointed the enthusiasts of good governance. Friendly countries too expect the new constitution with suitable reforms to deter the abuse of power and ensure real peace, social justice, equality of all citizens, rule of law and fundamental human rights to all citizens in truly democratic, socialist and united Sri Lanka. This can be perceived from the UN Resolution (A/HRC/30/L.29) which is in the Annex to this article.

Need an appropriate democratic governing system for unifying Sri Lanka

The contentious notion of unitary State in Sri Lanka is based on the assumed premise the entire island is the homeland of the Sinhalese and the ethnic minority Tamils (including the Tamil speaking Muslims) are the descendants of early immigrants residing in different parts of the island with the consent of the Sinhalese. It is this notion of unitary state of Sinhala nation that continues to instigate the demand for two separate independent nations in Sri Lanka. In real democracy, majority rule does not mean the rule of the ethnic majority. The latter also contravenes the basic socialist doctrine. In short, unitary system in multi-ethnic Sri Lanka with regional differences in the ethnicity of the local residents is divisive, as seen from its failure to promote unity and peace after contributing to the antagonistic division between the majority and minority ethnic communities.

The argument the Sinhalese as a race live only in Sri Lanka and, therefore, the entire country must be regarded as a Sinhala nation is unrealistic. A more pragmatic approach is needed to safeguard the future of the Sinhala nation in the modern world under a truly democratic system that assures amicable co-existence of the majority and minority ethnic communities in one united multi-ethnic and multi-religious country, respecting their language, religion, culture and regional pattern of residing. The system must correspond with the realities and not with any desired demographic structure. As the late Dr. Neelan Thiruchelvam stated, the anomaly in the governing system comes from “imposing a mono ethnic state on a multi ethnic polity”. The country’s ethnic Sinhala majority is not the major community in the Northern and Eastern provinces. Tamil is the common language of the residents in these two provinces. This has been the pattern since ancient time.

However, the sentimental attachment to the word ‘unitary’ seems to prevail despite the tragic experiences incurred in the past six decades. Apparently, the SLFP Committee appointed to present proposals for Constitutional Reforms has presented 10 party-line proposals. The party will support the Executive Presidency and also a broader delegation of powers to Provincial Councils. SLFP senior and Minister S.B. Dissanayake is reported to have said:“Our stance has always been that executive powers as such shall be vested in the President so as to keep the country’s unitary state unaffected and safe even as we go for a broader devolution of power in the Constitutional reform exercise”. It is not possible to comment on the new status of the ‘unitary state’ without knowing the entire structure of the new constitution. Abolition of Executive Presidency was promised by many before the Presidential elections but like other election promises, this too seems to have been a dangling carrot. The reforms for the present constitution must ensure the rejection of the provisions that denied national unity and steady development benefitting the present and future generations. The reformed governing system must also ensure an environment for good governance. Its absence led to the shocking rise in corruption, fraud and misuse of power at great cost to the public. The prolonged ethnic conflict that emerged after independence, when the rival political parties were seeking power disregarding the national interest and which escalated into a long (more than three decades) bloody civil war gave opportunities for some to siphon public funds. The muddled environment obstructed sustained national development but at the same time increased public debt. In order to put the country on the right path to peace, progress and prosperity, many fundamental changes to the current governing system are needed.

Constitutional reform alone without positive changes in the attitude and behaviour of politicians essential for the wellbeing of the people in an amicable environment cannot succeed. The prevailing obstructive political culture could also influence the outcome of the constitutional reform process, since the national task is with the members of Parliament. The latter has been converted to Constitutional Assembly for reforming the present Constitution which has failed to promote national unity, rule of law, clean administration and national development. Politics in independent Sri Lanka has moved increasingly away from wide public interests to narrow short-term interests of politicians who have taken politics as a lucrative profession.

Conclusion

The country is at a critical stage and unless significant changes are made soon to improve the inefficient and nationally damaging ways of governance, no sensible person can expect a bright future for the next generation of Sri Lankans. The opportunity that arose last year and the subsequent wide support of the international community for the reforms needed to foster good governance in united Sri Lanka should not be missed. National unity cannot be enforced by ethnic majority rule in the real Sri Lanka. The once promising country has been turned into a messy one by narrow minded politicians. The challenge facing the true patriots is formidable and the role of the civil society is crucial for success.

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Annex

Promoting reconciliation, accountability and human rights in Sri Lanka

Reaffirming the purposes and principles of the Charter of the United Nations,

Guided by the Universal Declaration of Human Rights, the International Covenants on Human Rights and other relevant instruments,

Recalling Human Rights Council resolutions 19/2 of 22 March 2012, 22/1 of 21 March 2013 and 25/1 of 27 March 2014 on promoting reconciliation and accountability in Sri Lanka,

Reaffirming its commitment to the sovereignty, independence, unity and territorial integrity of Sri Lanka,

Reaffirming also that it is the responsibility of each State to ensure the full enjoyment of all human rights and fundamental freedoms of its entire population,

Welcoming the historic free and fair democratic elections in January and August 2015 and the peaceful political transition in Sri Lanka,

Noting with interest the passage and operationalization of the nineteenth amendment to the Constitution of Sri Lanka and its contribution to the promotion of democratic governance and independent oversight of key institutions, including the provision on the promotion of national reconciliation and integration as among the constitutional duties of the President of Sri Lanka,

Welcoming the steps taken by the Government of Sri Lanka since January 2015 to advance respect for human rights and to strengthen good governance and democratic institutions,

Welcoming also the efforts of the Government of Sri Lanka to investigate allegations of bribery, corruption, fraud and abuse of power, and stressing the importance of such investigations and the prosecution of those responsible in ending impunity and promoting good governance,

Welcoming further the steps taken to strengthen civilian administration in the former conflict-affected provinces of the North and East, and acknowledging the progress made by the Government of Sri Lanka in rebuilding infrastructure, demining and resettling internally displaced persons, and calling upon the international community, including the United Nations, to assist the Government of Sri Lanka in furthering these efforts, especially in expediting the process of delivering durable solutions for all internally displaced persons,

Recognizing the improved environment for members of civil society and human rights defenders in Sri Lanka while expressing concern at reports of ongoing violations and abuses of human rights, and recognizing the expressed commitment of the Government of Sri Lanka to address issues, including those involving sexual and gender-based violence and torture, abductions, as well as intimidation of and threats against human rights defenders and members of civil society,

Reaffirming that all Sri Lankans are entitled to the full enjoyment of their human rights regardless of religion, belief or ethnicity, in a peaceful and unified land,

Reaffirming also that States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights law, international refugee law and international humanitarian law, as applicable,

Welcoming the Declaration of Peace of the Government on 4 February 2015 and its acknowledgement of the loss of life and victims of violence of all ethnicities and religions,

Emphasizing the importance of a comprehensive approach to dealing with the past, incorporating the full range of judicial and non-judicial measures, including , inter alia, individual prosecutions, reparations, truth-seeking, institutional reform, the vetting of public employees and officials, or an appropriately conceived combination thereof, in order to, inter alia, ensure accountability, serve justice, provide victims with remedies, promote healing and reconciliation, establish independent oversight of the security system, restore confidence in the institutions of the State and promote the rule of law in accordance with international human rights law with a view to preventing the recurrence of violations and abuses, and welcoming in this regard the expressed commitment of the Government to ensure dialogue and wide consultations with all stakeholders,

Recognizing that mechanisms to redress past abuses and violations work best when they are independent, impartial and transparent; are led by individuals known for displaying the highest degree of professionalism, integrity and impartiality; utilize consultative and participatory methods that include the views from all relevant stakeholders, including, but not limited to, victims, women, youth, representatives of various religions, ethnicities and geographic locations, as well as marginalized groups; and designed and implemented based on expert advice from those with relevant international and domestic experience,

Recognizing also that a credible accountability process for those most responsible for violations and abuses will safeguard the reputation of those, including within the military, who conducted themselves in an appropriate manner with honour and professionalism,

Recalling the responsibility of States to comply with their relevant obligations to prosecute those responsible for gross violations of human rights and serious violations of international humanitarian law constituting crimes under international law, with a view to ending impunity,

Taking note of the review of the high-security zones undertaken by the Government, and welcoming the initial steps taken to return land to its rightful civilian owners and to help local populations to resume livelihoods and to restore normality to civilian life,

Welcoming the commitments of the Government of Sri Lanka to the devolution of political authority,

Requesting the Government of Sri Lanka to implement effectively the constructive recommendations made in the report of the Lessons Learnt and Reconciliation Commission,

Welcoming the visit from 30 March to 3 April 2015 by and the observations of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, and the planned visit of the Working Group on Enforced or Involuntary Disappearances in November 2015,

Recognizing that the investigation into alleged serious violations and abuses of human rights and related crimes in Sri Lanka requested by the Human Rights Council in its resolution 25/1 was necessitated by the absence of a credible national process of accountability,

1. Takes note with appreciation of the oral update presented by the United Nations High Commissioner to the Human Rights Council at its twenty-seventh session, the report of the Office of the High Commissioner on promoting reconciliation and accountability in Sri Lanka and its investigation on Sri Lanka requested by the Human Rights Council in its resolution 25/1, including its findings and conclusions, and encourages the Government of Sri Lanka to implement the recommendations contained therein when implementing measures for truth-seeking, justice, reparations and guarantees of non-recurrence;

2. Welcomes the positive engagement between the Government of Sri Lanka and the High Commissioner and the Office of the High Commissioner since January 2015, and encourages the continuation of that engagement in the promotion and protection of human rights and in exploring appropriate forms of international support for and participation in Sri Lankan processes for seeking truth and justice;

3. Supports the commitment of the Government of Sri Lanka to strengthen and safeguard the credibility of the processes of truth-seeking, justice, reparations and guarantees of non-recurrence by engaging in broad national consultations with the inclusion of victims and civil society, including non-governmental organizations, from all affected communities, which will inform the design and implementation of these processes, drawing on international expertise, assistance and best practices;

4. Welcomes the commitment of the Government of Sri Lanka to undertake a comprehensive approach to dealing with the past, incorporating the full range of judicial and non-judicial measures; also welcomes in this regard the proposal by the Government to establish a commission for truth, justice, reconciliation and non-recurrence, an office of missing persons and an office for reparations; further welcomes the willingness of the Government to give each mechanism the freedom to obtain financial, material and technical assistance from international partners, including the Office of the High Commissioner; and affirms that these commitments, if implemented fully and credibly, will help to advance accountability for serious crimes by all sides and to achieve reconciliation;

5. Recognizes the need for a process of accountability and reconciliation for the violations and abuses committed by the Liberation Tigers of Tamil Eelam, as highlighted in the report of the Office of the High Commissioner for Human Rights investigation on Sri Lanka;2

6. Welcomes the recognition by the Government of Sri Lanka that accountability is essential to uphold the rule of law and to build confidence in the people of all communities of Sri Lanka in the justice system, notes with appreciation the proposal of the Government of Sri Lanka to establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for their integrity and impartiality; and also affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators;

7. Encourages the Government of Sri Lanka to reform its domestic law to ensure that it can implement effectively its own commitments, the recommendations made in the report of the Lessons Learnt and Reconciliation Commission, as well as the recommendations of the report of the Office of the High Commissioner,1 including by allowing for, in a manner consistent with its international obligations, the trial and punishment of those most responsible for the full range of crimes under the general principles of law recognized by the community of nations relevant to violations and abuses of human rights and violations of international humanitarian law, including during the period covered by the Lessons Learnt and Reconciliation Commission;

8. Also encourages the Government of Sri Lanka to introduce effective security sector reforms as part of its transitional justice process, which will help to enhance the reputation and professionalism of the military and include ensuring that no scope exists for retention in or recruitment into the security forces of anyone credibly implicated through a fair administrative process in serious crimes involving human rights violations or abuses or violations of international humanitarian law, including members of the security and intelligence units; and also to increase training and incentives focused on the promotion and protection of human rights of all Sri Lankans;

9. Welcomes the recent passage by the Government of Sri Lanka of an updated witness and victim protection law and its commitment to review the law, and encourages the Government to strengthen these essential protections by making specific accommodations to protect effectively witnesses and victims, investigators, prosecutors and judges;

10. Also welcomes the initial steps taken to return land, and encourages the Government of Sri Lanka to accelerate the return of land to its rightful civilian owners, and to undertake further efforts to tackle the considerable work that lies ahead in the areas of land use and ownership, in particular the ending of military involvement in civilian activities, the resumption of livelihoods and the restoration of normality to civilian life, and stresses the importance of the full participation of local populations, including representatives of civil society and minorities, in these efforts;

11. Encourages the Government of Sri Lanka to investigate all alleged attacks by individuals and groups on journalists, human rights defenders, members of religious minority groups and other members of civil society, as well as places of worship, and to hold perpetrators of such attacks to account and to take steps to prevent such attacks in the future;

12. Welcomes the commitment of the Government of Sri Lanka to review the Public Security Ordinance Act and to review and repeal the Prevention of Terrorism Act, and to replace it with anti-terrorism legislation in accordance with contemporary international best practices;

13. Also welcomes the commitment of the Government of Sri Lanka to sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearance without delay, to criminalize enforced disappearances and to begin to issue certificates of absence to the families of missing persons as a temporary measure of relief;

14. Further welcomes the commitment of the Government of Sri Lanka to release publicly previous presidential commission reports;

15. Encourages the Government of Sri Lanka to develop a comprehensive plan and mechanism for preserving all existing records and documentation relating to human rights violations and abuses and violations of international humanitarian law, whether held by public or private institutions;

16. Welcomes the commitment of the Government of Sri Lanka to a political settlement by taking the necessary constitutional measures, encourages the Government’s efforts to fulfil its commitments on the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population; and also encourages the Government to ensure that all Provincial Councils are able to operate effectively, in accordance with the thirteenth amendment to the Constitution of Sri Lanka;

17. Also welcomes the commitment of the Government of Sri Lanka to issue instructions clearly to all branches of the security forces that violations of international human rights law and international humanitarian law, including those involving torture, rape and sexual violence, are prohibited and that those responsible will be investigated and punished, and encourages the Government to address all reports of sexual and gender-based violence and torture;

18. Requests the Office of the High Commissioner to continue to assess progress on the implementation of iits recommendations and other relevant processes related to reconciliation, accountability and human rights, and to present an oral update to the Human Rights Council at its thirty-second session, and a comprehensive report followed by discussion on the implementation of the present resolution at its thirty-fourth session;

19. Encourages the Government of Sri Lanka to continue to cooperate with special procedure mandate holders, including by responding formally to outstanding requests;

20. Encourages the Office of the High Commissioner and relevant special procedure mandate holders to provide, in consultation with and with the concurrence of the Government of Sri Lanka, advice and technical assistance on implementing the above-mentioned steps.