Can we indeed solve our own problems?

by Kishali Pinto-Jayawardena

(May 29, Colombo, Sri Lanka Guardian) In a miraculous coincidence, just days after the joint statement by India and Sri Lanka following External Affairs Minister GL Peiris’s visit to New Delhi, Sri Lanka’s Attorney General was heard to announce benevolently that the Government of Sri Lanka was ‘mulling’ review of the Prevention of Terrorism Act and emergency regulations promulgated under the Public Security Ordinance.

Implications of the India-Sri Lanka joint statement

But to the less naïve among us, the implications of this joint statement, which called for early withdrawal of emergency regulations and investigations into allegations of human rights violations, were obvious. It was the unmistakably stern rap on the knuckles by India which had propelled this administration to rethink its badly argued insistence to retain emergency law in its substance, apart from a few cosmetic amendments, even two years after the war had ended.

When President Mahinda Rajapakse announced with
patriotic pride this Friday at the country’s celebration
of the war victory over the LTTE in May 2009 that ‘no one
can do anything in this country without the consent of our
people. It is only we who can solve our own problems and
no one else’, one cannot but look askance at this
presidential pronouncement.

And miracles of this nature were not in short supply in the week thereafter either, if this columnist may be forgiven the somewhat heavy sarcasm. We then heard that a long dormant Human Rights Commission (HRC), which had recently been awakened from its slumber by the government, intends to appoint a panel of judges to probe into the occurrence of rights violations from the North and East. Further, we were informed that long pending amendments to the relevant statute will be passed in order that the HRC is empowered to effectively deal with individuals who ignore or flout its recommendations. Currently, one of the many flaws in the statute is that the HRC can only conciliate or mediate. Chastised public officers therefore routinely ignore its recommendations. Government spokesmen said solemnly albeit predictably that these were institutional initiatives taken by the new HRC and had nothing to do with external pressure or government directions. That is however an unconvincing assurance that will be revisited later in this column.

Crumbs of desperately needed reforms

Suffice to say at this point that the withdrawal of emergency and the credible reactivation of the HRC were just two of the many urgently needed reforms that had been called for by legal activists and analysts for decades. Yet these reforms had been brushed aside by this government with a callous indifference that was all the more pronounced in post 2009 when the country may have been expected to have taken a different path in terms of reconciliation.

Instead it needed a gathering international storm propelled by the report of an Advisory Panel of the United Nations Secretary General and pressure by a regional power due to in part, its own political dynamics, to force this government to throw even these desperately needed crumbs from a table groaning with excessive political authoritarianism.

So when President Mahinda Rajapakse announced with patriotic pride this Friday at the country’s celebration of the war victory over the LTTE in May 2009 that ‘no one can do anything in this country without the consent of our people. It is only we who can solve our own problems and no one else’, one cannot but look askance at this presidential pronouncement.

Quite apart from the irony that these celebrations take place every year with pomp and glory while the country’s Army Commander who led the war effort continues to languish in jail, we need to seriously examine this statement. Is it only ‘we’ (for this, read the citizenry), who can solve our own problems? What does this statement really mean? Can we honestly be expected to believe that the sudden haste of the Government in ‘mulling’ review of unnecessary emergency laws or the undoubtedly praiseworthy zeal of the new HRC is prompted by entirely altruistic motives that are de-linked from regional and international compulsions?

And whereas the insistence of the Indian government on Sri Lanka’s withdrawal of emergency laws and the investigations of human rights violations can only be to the good, why should we need to listen to lectures by a regional power when such admonitions could have been averted by our own actions?

State sovereignty rather than peoples’ sovereignty

These questions need not, of course, have been posed if our political leadership had been more sagacious or conversely if leaders of our communities, the media, professional associations had taken principled and courageous positions, whether in regard to government policy at the last stages of the war, the comprehensive undermining of the Rule of Law through the 18th Amendment to the Constitution or the legal protection of rights of all citizens by an independent judiciary.

Instead what we saw from a decade ago, (and even before this administration came into power), was the strengthening of state sovereignty rather than peoples’ sovereignty. In a cogently reasoned contribution published in the Sri Lanka Journal of International Law, Volume 16, 2004, Faculty of Law, University of Colombo, the late Justice Mark Fernando, one of Sri Lanka’s most respected judges, reflected on why Sri Lanka should adhere to principles of international human rights law that enhance peoples’ sovereignty rather than reject international obligations that the country has voluntarily undertaken.

Sober thinking of this nature was however disregarded in later years as seen most evidently in the Singarasa case (2006) which, in the judgment of former Chief Justice Sarath N. Silva threw caution to the winds and declared that the country’s very accession to the 1st Optional Protocol to the International Covenant on Civil and Political Rights was unconstitutional. These developments were key to heightened international scrutiny of Sri Lanka’s legal system which reached its heights in the context of the closing of the war with the LTTE in May 2009. All this could have been avoided if a less ruinous path had been chosen from well upon a decade ago.

A question of definitive culpability

Hence, we witness the unenviable dilemmas that we face today as a country. Yet, even at this stage, there are certain realties that should be acknowledged. Admittedly, the majority of the voting populace in this country will continue to be unconcerned about matters such as the withdrawal of emergency law with its repercussions mainly limited to the North and East.

Similar unconcern will be evidenced in relation to esoteric matters such as the law and the legal system unless some unfortunate individual is caught up directly in its coils. In any event, even if there are those who may be concerned among this number, the tightening of political control at the grassroots level that is gradually getting worse and the complete absence of an effective opposition would ensure that these voices are never heard. It is therefore up to those whose voices are not so easily silenced to make themselves heard. The fact however that many have not bothered to do, particularly post 2009, evidences their own most definitive culpability.

Giving spirit and substance to empty pronouncements

Admittedly, given unacceptably heightened executive authoritarianism on the one hand and the near total complicit silence of the citizenry on the other, to assert that ‘we, the people’ have any say in determining how this country is governed, sounds quite hollow. On the contrary, ’we, the people’ are tossed hither and thither, helplessly and pathetically, experiencing a general malaise that has affected almost every aspect of societal functioning, from the current crisis affecting the universities to the ongoing furore over the pensions bill.

And belying loud shouts that we have not surrendered our sovereignty, this is exactly what has happened at varied levels, due to our own actions. It is time that we grab this power back from our political leadership and give spirit and substance to empty political statements. Too often, one has heard the complaint ‘but what other alternative is there politically?’ This is to miss the point, most spectacularly. It is not an issue of one political choice against another but a question of exercising that most important right of a citizen, namely to compel one’s government to listen to its citizens and thereby change its policies for the good of the country.