Being punished for going to court

| by Kishali Pinto Jayawardene

( February 26, Colombo, Sri Lanka Guardian) The argument is put forward by some that if the current administration had taken steps to put its democratic record to right, post war, perhaps the scrutiny that we see now in regard to what is loosely defined as accountability, would not have been evidenced in all its intensity.

Deprivation of the right of access to justice

This argument may have some degree of logic behind it. However, the truth remains that the democratic record of the Rajapaksa administration is deeply flawed, not only generally in the two years following the defeat of the Liberation Tigers of Tamil Eelam in May 2009. It also fails the more immediate litmus test of democratic rule in the months following the release of the Lessons Learnt and Reconciliation Commission (LLRC).

Despite the many stringent recommendations of the LLRC regarding putting a stop to abductions, detention and the rule of paramilitaries and political thugs holding illegal weapons, this goes on unabated. The recent abduction of a Colombo based businessman who had filed a fundamental rights complaint against torture is one such extreme example. Many more cases abound in the areas of the North and East even though some of these instances are not brought to the public eye. These are clear cases of infringement of the right to legal access and the right to avail oneself of established legal remedies. It is ironic that despite the many extravagantly funded projects on access to justice, this basic right to go to court is yet under threat in Sri Lanka in the post war period.

What does the government have to fear from independent monitors?

And what of the constitutional monitors that should operate independently? Last week's column addressed the recent establishing of the Police Commission under the 18th Amendment and pointed out that the required attributes of independence and impartiality of its members cannot be met. What has the government to fear from an independent National Human Rights Commission, Police Commission or an Elections Commission if it is so confident of the support of the majority of the electorate, as we are informed time and time again by polls that are carried out and which are unavailingly relied upon by propagandists for the establishment?

These questions go to underscore a point increasingly made by commentators, namely that the Rajapaksa administration's actions indicate that it will rely less and less on democratic procedures of election and support and instead use violence and intimidation to keep the electorate quiet. The recent crackdowns in Chilaw and elsewhere seem to bear this point out forcefully.

In any future elections, there is little doubt that the authority exerted by the Elections Commissioner will be faltering, both in theory and in practice. The previous Elections Commissioner as well as the incumbent has pointed to various lacunae in the election laws that ought to be remedied in order to strengthen his hand. These reforms still remain pending. Legal reforms however will remain of little account when met with political violence.

Similarly, the National Human Rights Commission has done little to earn itself a name in interventions that safeguard rights. What has it done so far in relation to the disappearance of Prageeth Ekneligoda? This is an apt question. Its downgrading internationally was premised on the basis that it had fallen far short of requisite standards of independence and integrity. There appears to be no change in this status quo.

The importance of an independent Police Commission

However, the saddest experience that we have had so far continues to be in regard to the National Police Commission. More than any other constitutional commission, it is the independent status of the National Police Commission that ought to be restored, not only to ensure that the police act properly during election times but also to protect law abiding police officers themselves from being transferred out due to the whims and fancies of enraged politicians who find that these police officers do not jump to obey when the whip is cracked. The LLRC's recommendation that an independent permanent Police Commission needs to be established still remains in the air.

Undoubtedly, when constitutionally appointed under the 17th Amendment, it was the national Police Commission's attempts to bring order back into the police service during its first term, (notwithstanding some initial blundering on its part), which pricked politicians into realising the extent of what they themselves had unwittingly perhaps agreed to. The gradual - and successful - destabilizing of the 17th Amendment was an inevitable result thereafter. It was not a largely toothless National Human Rights Commission or even the Public Service Commission which created disquiet in government ranks.

Rather it was the Police Commission which had been given constitutional and regulatory powers that were unparalleled in the whole of Asia.

This was a novel constitutional experiment which, if worked properly, may have been an exemplary lesson for the region. Unfortunately, it was not to be. If, as is sometimes contended, internal disciplinary measures put into place by the Inspector General of Police had been sufficient to contain this problem, we certainly see no hard evidence of this. The National Police Commission, as it functioned under the 17th Amendment, may not have been ideal. However, with careful and sensitive finetuning, this constitutional mechanism may have redressed the more serious problems currently affecting our law enforcement processes. Certainly its successors have been far worse.

What do we intend to do about subversion of governance?

Commitment to the principle of constitutional governance must come from the opposition as well as the government. The main opposition party, the United National Party itself dragged its feet on the 17th Amendment with only one or two solitary voices to the contrary. On its own part, the Janatha Vimukthi Peramuna also deviated from its initial commendatory stand of forging a political consensus on the 17th Amendment to follow a policy of deafening silence in later years. It is only now - quite belatedly- that both parties have woken up to the signal importance of this constitutional amendment, definitively for their own political gains rather than due to an overwhelming commitment towards good governance.

Let us make no mistake about this. The subversion of our governance processes cannot be hidden any longer under the convenient bogey of the 'virtual' reawakening of the LTTE or the uproarious notion that the entirety of the West is conspiring against us, though propagandists may try to tell us so. We do not need the European Commission or the United Nations to tell us that our constitutional systems are not being worked properly. This we know for ourselves.

The question is, what do we intend to do about it?