The Fonseka affair: A perfect blunder?

By Dayan Jayatilleka

"All my life I have been a gentleman to my adversaries, even in war situations surrounded by death. I’ve never humiliated, offended nor wreaked revenge on a single prisoner, not even in the case of the Bay of Pigs while my comrades lay mortally wounded or dead around me…One must be honorable." - Fidel Castro ( May 1st speech, 2002)

(February 15, Colombo, Sri Lanka Guardian) Are we headed for a third great cycle of violence?Sri Lanka has experienced two so far: the violence of the Sinhala underprivileged youth vs. the System, and the youth of the Tamil periphery vs. the Sinhala heartland. Are we living through the prelude of a third cycle, this time of a Cold war turning hot –factional strife turning into civil conflict- within the Sinhala establishment itself?

It was Theodor Draper who described the 1961 Bay of Pigs invasion of Cuba as "one of those rare political events…a perfect failure". The Fonseka Affair, the timing and tactics of the handling of Gen Sarath Fonseka, and in general (pun intended) the handling of the post Presidential re-election period so far, has been no less a rarity, a perfect blunder.

Even the right or necessary thing, done in the wrong way or at the wrong time, can do more harm than good. Mao Ze Dong urged the importance of "the correct handling of contradictions" and this one, the contradiction between the state and Gen Fonseka, has been grotesquely mismanaged politically. Every state has a right to defend itself against attempts at violent putsch. A democratic state has an even greater moral right and obligation to do so. While there was every reason to launch a serious and thorough investigation into the activities of Gen Fonseka, an investigation that was multipronged and sweeping as it was deep-going, the manner in which he has been arrested and detained ("nabbed brutishly" as The Economist put it), as well the timing of that action (following an election and just prior to another), has been appalling in the damage it has done to the country internally as well as to its international standing.

Joseph Nye, distinguished professor at Harvard’s Kennedy School of Government, has in a recent article on the New Public Diplomacy, stressed a point that helps us understand the depths and dimension of the damage Sri Lanka is doing to itself internationally. He writes that: "In today’s information age, politics is also about whose "story" wins. National narratives are, indeed, a type of currency. Reputation has always mattered in world politics, but credibility has become crucial …"

No enemy of Sri Lanka could have matched the damage done to the image of the country and the Presidency by our own Government’s recent actions, commencing with the deployment of troops – some with black masks—outside the Cinnamon Lakeside on January 27th. That clumsy melodrama (I was right there, being interviewed by Al Jazeera) permitted a different story line to emerge in and through the international media, obscuring the clear, conclusive electoral victory handed to Mahinda Rajapakse by the masses.

The political commentary in the Sunday Times of Feb 7th, which disclosed that teams of crack detectives had been aghast by the hair raising evidence that emerged about the abduction and murder of media men, read together with the DBS Jeyaraj column in the Daily Mirror of Saturday Feb 13th, make it impossible for the serious minded citizen to ignore the fire or the glowing embers of clandestine networking to coercive purpose, beneath the billowing smoke of controversy swirling around the Fonseka issue. While no state can blink in the face of attempts at extra constitutional coercion, and a determined crackdown is necessary whoever the perpetrator and however exalted, it is no less true that the rule of law has to be upheld and due process observed. Surely a lesson could have been drawn from the conduct of Madam Sirima Bandaranaike and Felix Dias Bandaranaike in the face of the 1962 coup attempt? Those leaders smashed the coup attempt, but did not seek to try those involved under military regulations despite the fact that those regulations existed and the accused were serving officers of high rank. The matter was brought to court (despite some controversy regarding the role and rulings of the Privy Council), heard in court, and those found guilty were jailed.

If Gen Fonseka and his associates have sought to usurp power, then the example of 1962 is the one the administration should follow, in order to avoid any hint of a witch-hunt and the persecution of a war hero. If there are serious allegations of a criminal nature, then all the more reason that he should be tried in a civil court and prosecuted to the fullest extent of the law. There should be no attempt to do both, i.e. to try him in a military and then a civil court, because the opaque character of a military court undermines the social legitimacy of the findings and could have an adverse effect on the public perception of the criminal proceedings themselves. If the case of an attempted coup d’état is weak, there will be temptation to massage the evidence if the process is than transparent. This will not be possible in a civil court.

An issue similar to the one facing us here today was wrestled with in the open by President Obama. This was to do with the 9/11 suspects and military trials at Guantanamo. In deciding that the terrorist suspects will be tried in civil courts in the USA, including New York, and in imposing an unconditional ban on torture, President Barack Obama, ex-editor of the Harvard Law Review and former professor of constitutional law, now the key global leader in the struggle against terrorism, made the point that a democratic state must be seen as morally superior than its terrorist enemies, and that conceding the legal rights of its enemies enhances this ethical superiority which in turn strengthens rather than weakens the USA (and any democratic state). The principle is true for Sri Lanka as well. If the Al Qaeda terrorists including the mastermind of 9/11 can get a trial in a civilian US court, there is no reason why, in Sri Lanka, the former army commander who played a major role in defeating Tamil Tiger terrorists, should not be not entitled to an entirely and exclusively civilian legal process which presumes innocence until proof of guilt is established.

Civility is not a weakness but a strength which confers legitimacy. The ham-fisted manner of the Government’s actions so far has generated the following negative consequences:

1. By deeming as ‘treason’ and a breach of national security, Gen Fonseka’s sporadic and strangely timed utterances about war crimes and his willingness to testify about them, the Government has fallen into a trap. It has stupidly lent veracity to those claims which have been made by our detractors overseas. If there were no war crimes or violations of international humanitarian law, why not simply laugh off Gen Fonseka or use his utterances for election propaganda? On the other hand by making the most awful fuss about them, how do you prevent the impression from being created throughout the world, that there is indeed something to hide; that we are trying to shut him up so he cannot spill the beans? By resorting to closed military proceedings on issues of security" rather than a civil trial on criminal charges, the Govt is painting itself into a corner by creating situation in which Gen Fonseka winds up either a hero or worst of all, a martyr. Furthermore, the world community may conclude that the shutting up of a former army commander who was supposedly about to blow the whistle on war crimes means impunity is rampant within the Sri Lankan state system and therefore the only path to justice here is the invocation of the doctrine of ‘universal jurisdiction’ by as many national courts as possible, worldwide.

2. Public opinion in the South is confused and despondent; the Sinhala people are demoralized, with only some endorsing the treatment of General Fonseka. There is dissent at the highest level of the Buddhist hierarchy. It is safe to assume that there would be loss of morale among the rank and file military. One can only wonder whether a call for recruits, should there be one, would be met with a successful response. The official/dominant ideology of "Apeykama" or "ourness" has been fissured, not so much by Fonseka’s flopped candidacy, but by the ignoble treatment of the General, because even those great numbers who voted against him still consider him very much "apey" ("ours") and a martial national hero. It is not a few ideologues but we ourselves, "api apimai", who define who and what is "apey", ours. Today no personality (except Mahinda Rajapakse) radiates more "apeykama" or generates more empathetic resonance than Anoma Fonseka, after listening to whose tale of travail, "api" exclaim "apoi"!

3. Doubts have been needlessly cast on the President’s electoral victory and questions raised whether Gen Fonseka was incarcerated so as to prevent him from filing an election petition or to delay, divert and derail that process. An impression has been needlessly created that the President and the Government are "afraid" of Gen Fonseka emerging as a politician in parliament. It is said that this is why the arrest was made before the parliamentary election.

4. Gen Fonseka’s profile has never been higher, more than compensating for the huge loss he suffered at the Presidential election.

5. The Opposition which was in disarray and limping after its last defeat, has been gifted a rallying cry.

6. Demonstrations, however modest in scale, have broken out in the South, and been met with a crackdown, cumulatively giving rise to a picture of growing political instability.

7. The hardliners in the Tamil Diaspora have been given the chance to say "if this is how they treat their own former army commander, a war hero and later, presidential candidate, imagine how they treat the Tamils—so don’t blame us for wanting a separate existence".

8. The administration is potentially on a collision course with the judiciary.

9. Every institution of the state and ‘cell’ of society will be divided and/or demoralized on this issue.

10. The administration is on a potential collision course with the JVP. If the JVP is driven underground, it will link up with disaffected Fonseka loyalists among the rank and file of a large military. From a security point of view, it was far easier to isolate Tamil Tigers, who were, all identifiably Tamil, than it will be to identify violent anti-Govt Sinhala militants, including Buddhist monks. Such militancy could also block much needed progress on the ethnic front.

I am proud to have supported President Rajapakse at the 2005 and 2010 elections and I think he is the best leader the country can have at this point of time. However, the practice of political cannibalism must cease! A balance must be restored. At the parliamentary elections the voters should exercise their franchise in such a manner so as to deprive the ruling coalition of a monopoly or overwhelming preponderance of power. The present path on which the government is proceeding is adventurist. It inhabits an echo chamber in which only the reverberations of its own ideological discourse are heard. This attitude needlessly exacerbates and prolongs instability, renders the political crisis chronic and endemic, and debilitates the nation. Unless the limits of power are recognized, this path will lead needlessly but inexorably over the precipice I leave the country for scholarly reflection and writing for a period of (at least) two years, with a heavy heart.