No rule of law, no guarantees in Sri Lanka

By Nick Cheesman writes from Canberra

( April 15, Canberra, Sri Lanka Guardian) The Australian government on April 9 announced that it has decided to suspend the processing of applicants for asylum from Sri Lanka, along with those from Afghanistan, because circumstances there are “evolving”.

The immigration minister, Chris Evans, said that the government has “very sound public policy grounds” for its decision.

This is either a disingenuous lie or an acknowledgment that Canberra is dangerously ignorant about a country which it should know better. Either way, it is wrong.

Sri Lanka’s insecurity is not an attribute of its ethnic conflict alone. The war in the north and east was just one particularly visible and violent consequence of deep internal problems that have worsened considerably in the last two decades.

The end of the war has not halted the violence and impunity with which police and soldiers operate all over the island. It has not repaired any of the country’s collapsed legal machinery. And it has not restored hopes of a genuinely democratic future.

If the Australian government truly believes that circumstances in Sri Lanka are evolving, then perhaps it could explain why the opposition presidential candidate, former army commander Sarath Fonseka, has been kept in custody on a fabricated case since February.

He is just one among thousands of people being held under arbitrary or tenuous charges, many of who are routinely tortured or threatened with torture.

Perhaps the government could also explain how it reconciles this state of affairs with Australia’s duty under international law not to repatriate anyone to a place where he or she is at risk of torture.

And perhaps it could clarify why the violent attacks on journalists, lawyers, activists and other citizens that continue unabated in Sri Lanka have never been properly investigated, or perpetrators brought to justice.

Sugath Fernando was a victim of one of these attacks. A small businessman, he died not because of the civil war, nor because he was doing something illegal, but rather because he challenged corrupt local police. Officers assaulted his family at their home near Colombo and said that they would kill him if he did not withdraw a complaint against them.

Fernando begged the national police chief and official Human Rights Commission for help. He got none. An assassin shot him dead on a busy street in September 2008. Despite ample evidence, no one has been arrested in the 18 months since. His wife and children recently obtained refugee status abroad; not in Australia.

The basic problem for all Sri Lankans—whether the former general whose political goals led to his arrest, or the businessman whose sense of justice led to his death—the problem that the Australian government has either failed to grasp or refuses to accept, is that there is no rule of law in Sri Lanka.

This is partly a consequence of two civil wars in which security forces and their affiliates abducted, tortured and killed on an unprecedented scale. These practices have penetrated the entire system of policing and have corroded the authority of the courts. They have destroyed trust in the concept of legality as a basis for society.

It is also the result of a constitution that places the executive president over the parliament and judiciary. The incumbent, Mahinda Rajapaksa, told a public rally in March that constitutionally he is above the law. Contrary to the Australian government’s view that circumstances are evolving, many people fear that Sri Lanka is headed towards dictatorship.

Under these conditions, the claims of Sri Lankan officials that their country is safe are absurd. Where can someone go to have a grievance heard? To whom can anyone turn for security? Without the rule of law, guarantees of safety are worthless.

The end of war does not restore rule of law. The holding of elections does not signify respect for civil and political rights. And nothing justifies the suspending of claims for asylum as a matter of public policy.

If Australian policymakers really think that things are improving in Sri Lanka, then Australians need new policymakers. If Australian politicians think that acting tough on asylum seekers will win a few more votes, then they must count those votes against the lives of people whom they have endangered, people whom they have the legal and moral responsibility to protect.


This is a slightly different version of an article that was originally published in the Canberra Times on 13 April 2010.