By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

Does one need to possess foreign citizenship to practice basic rights of life, liberty and free expression in Sri Lanka?

The meaning of national sovereignty

This question has become particularly relevant given steeply increased abductions and disappearances in recent months. If Frontline Socialist Party’s Premakumaran Gunaratnam (aka Noel Mudalige) had not claimed Australian citizenship, what would have been his fate or for that matter, of his co-abductee Dimuthu Attygalle? We do not need to search far for this answer. The still unknown whereabouts of other disappeared individuals, including a detainee who was abducted from the court premises itself, stares at us in response. This column has said more than once; the Government cannot simply shrug off these incidents and profess to a bland denial of the same. In the heavily monitored and militarized society that Sri Lanka has become, despite the ending of active conflict three years ago, bare denials do not suffice. They merely become acutely laughable.

So what pray, is this ‘sovereignty’ that Ministers and public officials, are fond of pontificating on? Is national sovereignty limited to the right of local politicians to abduct, kill, torture and slander people, to plunder and lay waste to the land? What rights does the common person possess, minorities or majority? As the Supreme Court has affirmed in countless (now useless) judgments, even a common criminal has the right to be dealt with in terms of the law. This is a basic principle of legality. So while the public has sufficient common sense not to treat Gunaratnam quite as a ‘gentleman’ as one Minister was heard to loudly warn, legal procedures need to be observed. Yet the law is degraded almost irretrievably, the courts are rendered passive and judges are reduced to mere bystanders. To horribly pervert Winston Churchill’s ringing call to the English people to suit the local context, never before was so much power wielded by so few and so blatantly against the common good.

And it is this very Government which, through its discarding of the law and of the Constitution, has opened up this country to internationalization of its internal affairs though its political leaders may roar to the contrary.

Explanations are masterpieces in foolishness

Furthermore, the explanations offered by government authorities are themselves baffling. For example the statement circulated to all diplomatic missions by the Ministry of Foreign Affairs this week following these most recent abductions is a veritable masterpiece in sheer foolishness.

Its main thrust is that Gunaratnam was deported from Sri Lanka as he had breached immigration laws by overstaying. So now are we to believe that every individual overstaying his or her visa or using a passport issued in a different name to that which appears on his/her birth certificate, would be liable to be bundled up, abducted by armed men in a white van and spirited away from the country? Is there not a legal procedure available in precisely these circumstances? Why is the Ministry of External Affairs so conspicuously silent on this point, though the same would be immediately evident to any common man or woman on the street?

The Government belatedly attempted to justify its actions by claiming that Gunaratnam’s spiriting away was because of a request made by the Australian High Commission and that similar compromises had been arrived at with other countries, for example, in the case of fishermen trespassing beyond Sri Lanka’s territorial waters. However, this purported justification raises more questions than answers. Could this heavily controversial abduction cum deportation be likened to the case of a few fishermen lost at sea? More to point, are we to believe that the law has been circumvented purely because a diplomatic mission, which has remained remarkably if not cannily quiet on this entire imbroglio, has requested it? Perhaps that is stretching credulity too far.

And by the way, it was not so long ago that a prominent ex-militant turned political supporter of this Government was permitted to use a forged official passport with Government blessings in his efforts to enter the United Kingdom some years ago. The moral outrage that we see on the part of the Government in regard to Gunaratnam’s (alleged) actions is therefore scarcely convincing.

An explanation that invokes disdain

The statement by the External Affairs Ministry is ludicrous in other respects. Quite apart from the near desperate attempts to ferret out minute contradictions in the version of events given by Gunaratnam and Attygalle, the delay (ranging from 12 hours in one case to close to a day in the other) in making a complaint to the police, is said to be damning. As the Ministry would have it, ‘it was obvious that a genuine abduction would have been reported to the police far more swiftly.’

But is this assertion made under the mistaken impression that we are living in some other hemisphere of the world? In the shadowy circumstances of these abductions, it is a miracle that a police complaint was even made in the first place. Nitpicking over the delay of a number of hours in making the complaint is likely to be laughed off by the ordinary citizen possessing an objective mind, let alone diplomatic missions.

The statement calls for objectivity and fairness to be shown in assessing allegations against the Government. That is only reasonable. But on that same principle, explanations issued by state authorities must themselves be fundamentally commonsensical for that same courtesy to be observed in turn. Disdain can only be the natural result when commonsense is lacking. It is no excuse to maintain, as some commentators have done, that the incumbent in the office of the Minister of External Affairs has no say in the issuing of such inane statements given the peculiar political realities of the day. If so, the Minister should ask himself the question as to whether there is any point in his remaining further at his post.

The entrenching of naked dictatorial power

These abductions and disappearances also teach us certain unmistakable lessons of their own. The Lessons Learnt and Reconciliation Commission (LLRC) was condemnatory of similar happenings during its time period of inquiry. Yet after its Report was handed over to President Mahinda Rajapaksa, these incidents have increased exponentially. What further proof do we need that this Government does not intend to take serious note of the LLRC’s Report?

The LLRC recommended that Sri Lanka should enact an offence of enforced disappearances. This predicates the necessary step that such an offence would carry with it, suitably serious penalties. There is a wealth of international and comparative law standards that can be drawn from, for this purpose. However, as against a Government that denies even existing legal safeguards, sophisticated law reform becomes a mockery. Even the time tested writ of habeas corpus is futile to all intents and purposes against outright denials of defence authorities. The duty of the State, in the minimum, to properly inquire and investigate abductions and disappearances is disregarded. It is heartening that some calls are being made to this effect by religious leaders but more public outrage must be evidenced.

Notwithstanding, it is a sobering reflection in this Sinhala and Tamil New Year that ‘state terrorism’ is now clearly projected at entrenching dictatorial power in the hands of a select (elected and unelected) few in Sri Lanka’s defence and political establishment. Unlike earlier, there is now no war or internal conflict to offer even as a minimum excuse. Greater social, economic and political devastation can only inevitably follow. In the absence of vociferous public opinion demanding a genuine change in the way that this country is governed, (or the lack thereof), such a consequence is merely a matter of time.