The struggle for liberty: 65 years on

“The rise of the Nazis was made possible because the elite of German society worked with them, but also, above all else, because most in Germany at least tolerated this rise. Human rights do not assert themselves on their own; freedom does not emerge on its own and democracy does not succeed on its own” – Angela Merkel on the 80th anniversary of Hitler’s rise to power

On the 80th Anniversary of Adolf Hitler’s rise to power as Chancellor, Germany declared open a new exhibit at its Topography of Terror open air museum, located at the former headquarters of the Gestapo, or Nazi secret police. The exhibition, entitled ‘Berlin 1933. On the Path to Dictatorship,’ traces the Fuhrer’s early days in power, largely through newspapers, posters and historically stunning photographs. The exhibit also showcases an iconic poster dated 1 April 1933, one of the earliest Nazi propaganda notices against the country’s Jewish community. “Germans, defend yourselves! Don’t buy from Jews,” it reads, urging Germans to boycott Jewish shops and services.

Sri Lanka, in the recent past, has seen the rise of very similar propaganda material largely targeted at enterprises run by Muslims. The posters and banners paraded through the streets of certain towns by Sinhalese extremist groups, urge the Sinhalese to stand up to defend their race by boycotting Muslim food products, clothing chains and restaurants.

It might be called premature and hyperbolic to draw comparisons between Nazi propaganda and the type of Muslim paranoia being created by the Sinhalese extremists groups in Sri Lanka today. Since the ugly incident in Kuliyapitiya, where protesting groups carried offensive images and paraded them in front of Muslim places of business, there has been a lull in overt anti--Muslim activities being reported.

Fires started

But fires started are not so easily quelled.

Hate is a universal language and hate speech has a way of catching on. The internet is exploding with anti-Muslim sites created by purported Sinhala Buddhist organisations. Facebook pages are sporting deeply offensive pictures, in a language that does great harm to trust and respect between communities of people. There is still talk of impending destruction of sacred Muslim shrines and allegedly ‘unauthorised’ mosques. The campaigns against these sites are gaining ground on social media networks. This anger directed against the ‘other’, the extremists’ perception of being usurped, as Sri Lanka well knows from the experience of its very own Crystal Night in July 1983, can wreak irreparable damage on a nation’s psyche.

Often it does not even take a ‘night of broken glass’ or communal riots to break the hearts of a minority community. When fires engulfed the iconic Jaffna Library, that beating heart and cultural root-spring of Northern Tamil culture, they did not merely burn age old manuscripts and hundreds of thousands of irreplaceable books. The fire also seared human hearts, tore apart communities and stoked different fires, of nationalism, separatism and ethnic strife.

The propaganda parallels therefore, seem apt, and even necessary, if vigilance is the price to pay to prevent a tragedy of such magnitude again.

The Muslim Council wants to play down the rhetoric. On 3 February, the Council defended the justifiable right of the Muslim community to celebrate Independence, with their political leaders having fought as hard for Sri Lanka’s freedom from colonial rule six decades ago. “Our population is not growing. Talk to the Department of Census, we were nine per cent 1,000 years ago. We are still at that number, we will never be the majority,” the council’s representatives, pleaded against the extremist rhetoric that is warning Sinhalese Sri Lanka will be a Muslim majority nation in a few years. The pleas were profoundly indicative of how desperately Muslim moderates sought to allay the fears of the majority race.

Muslims cautious

In fact, Muslim politicians are being deliberately cautious, lest they incite the extremists into taking further destructive steps. Islamic elders are trying to quell the passions of the youth rearing to retaliate. 1983 is not distant enough a memory to allow matters to spiral out of control. It is clear that a majority of Sri Lankans feel the same way. Even a Government that does not step too far from the extremist line in deed, if not in word, appears to have seen the dangers of a spiralling extremist movement. In his Independence Day Address the President referred to the phenomenon of what he called ‘religious rivalry’ and denounced it as serving the cause of separatism in the country.

Yet questions continue to persist about the Rajapaksa Government’s true commitment to addressing minority concerns, nearly four years following the end of the war. In the very same address to the nation, President Rajapaksa also claimed there was no necessary for “separate administrations” in the island, based on ethnicity. The remark was believed to allude to the 13th Amendment which sets up regional governments in all nine provinces of the island, including the north and east. It is an open secret now that the regime is seriously mulling the repeal of the 13th Amendment, especially after it proved a stumbling block to the passage of the Divi Neguma Bill – not once, but twice, due to successive rulings by a Supreme Court bench headed by impeached Chief Justice, Shirani Bandaranayake.

13A and New Delhi

Only one factor holds the regime back and whether this is a factor that will continue to play as far as Colombo is concerned, remains to be seen after the UNHRC sessions conclude in Geneva next month. Since the war ended in 2009, the Government has been promising New Delhi – and by extension Washington, that a final power sharing deal with the minority Tamil community would be reached and it would be framed on the 13th Amendment to the Constitution. The constitutional amendment is one of Indian design and was adopted in 1987 as a means of providing some political autonomy to the north and east in order to end the separatist conflict in the island.

Last year, President Rajapaksa famously told former Indian External Affairs Minister S.M. Krishna that a political settlement would in fact build on the 13th Amendment and devolve power more extensively than the amendment first envisioned. The concept of ‘13 Plus’ quickly evolved into becoming a major thorn in Sri Lanka’s side, with the Government retracting the President’s pledge to the Indian Minister days later and India sternly calling for explanation from the Sri Lankan External Affairs Ministry in order to answer queries from Tamil Nadu politicians in the Indian Parliament in the run up to the adoption of the UNHRC resolution in March last year. The Government never responded.

Frustrated and pushed to a corner by the Government in Colombo and the restive Tamil Nadu, New Delhi went on to vote in support of the US-led resolution against Sri Lanka. With regard to 13A, India finds itself in a strangely double-edged position. It is the basis upon which the Rajapaksa regime has consistently promised to deliver a power sharing deal with the Tamils. The country’s main Tamil party, the TNA, looks directly to India to ensure the Government lives up to its promise. The Central Government in India, led by the Congress party, also constantly sells the Sri Lankan Government’s promise that it will deliver a political settlement to the Northern Tamils, to calm the fears of Tamil Nadu politicians and groups.

Naturally, therefore, it creates ripples in India when the Sri Lankan political leadership, backed by its nationalist allies, threaten to derail everything by scrapping the key amendment altogether. Analysts say that the regime has played its cards very well with New Delhi by dangling the dual threat of China and Pakistan and constantly making India second guess itself in order to hold on to its leverage in Colombo. But signs are also emerging that New Delhi may be running out of patience with the situation on the ground in Sri Lanka.

Former CJ refused entry to Lanka

Last week, Sri Lanka revoked the gratis visa granted to India’s former Chief Justice, Jagdish Sharan Verma, who was to lead a delegation from the International Bar Association on a fact finding mission about the impeachment of Chief Justice Shirani Bandaranayake. The delegation was to arrive in Colombo on 1 February. Justice Verma had informed the Indian press of his visit, and said he would be talking to a cross section of Sri Lankan judges, lawyers and stakeholders to determine the state of judicial independence in the country during his 10 day visit. Two days prior to his arrival in the island, the respected jurist’s visa was revoked. The Sri Lankan High Commission in London also revoked the visas of three other delegates. The External Ministry claimed later that the four member delegation had violated visa rules by not stating the explicit purpose of their visit.

Senior lawyers note that the revoking of Justice Verma’s visa is likely to ruffle more than a few feathers in New Delhi. Attorney-at-Law Upul Jayasuriya noted that India treated its former Chief Justices with much the same level of courtesy and respect as they would a sitting CJ. “When a Chief Justice retires in India, it is not like there is a regime change, like in Sri Lanka, they are still afforded the same dignity,” the contender for the Bar Association presidency says.

Other lawyers groups have noted that the only other country to deny entry to an IBA delegation was Fiji in 2008. The IBA was forced to cancel the visit by its delegation after one of its members was detained and deported at the airport. The delegation was in Fiji to study the country’s judicial system under its military-backed Government. One year later, the country was expelled from the Commonwealth grouping for not living up to the democratic values set out by the organisation.

It is now coming to light that opposition to the IBA delegation’s visit to Sri Lanka did not come from the defence establishment as would have ordinarily been the case. It will be recalled that when Canadian Liberal Party parliamentarian Bob Rae was deported upon arriving at the Katunayake airport in 2009, the decision-making was done by the defence authorities. With the IBA delegation, the External Affairs Ministry insisted that their entry was barred, it is reliably learnt. With regard to the IBA delegation, the Defence Ministry was reportedly content to allow the four-member team entry to Colombo as long as their activities and discussions could be closely observed.

Putting the onus on India

Analysts said that although it was reasonable to assume that Sri Lanka would be wary of irking India by refusing entry to its former Chief Justice the reality is quite the opposite. The Rajapaksa regime firmly believes that India should feel obliged to prevent Indians of Justice Verma’s calibre from engaging in activities perceived as ‘anti’ Sri Lankan, even though the Jurist was arriving in a private capacity that had nothing to do with the Indian Government. The regime persists in seeing every Indian in a high ranking position as being agents of New Delhi, who can be controlled by the Indian Government if necessary.

Some analysts claim that this is also the case with relation to Commonwealth Secretary General Kamalesh Sharma, who the regime in Colombo firmly believes can be influenced through Indian intervention. As far as the Rajapaksa regime is concerned therefore, they have got India exactly where it wants them: New Delhi cannot harp too much on democracy and human rights when Beijing is showing itself more than willing to play a bigger role in Sri Lanka, and Colombo can continue to appeal to New Delhi’s more protective instincts when things heat up in their international face-offs with the Western world.

But reports say New Delhi is particularly irked by the Government’s latest stunt with regard to Justice Verma. Incidents of this nature are relatively unheard of between the two countries, especially with regard to VIP visas. In fact, New Delhi appears willing to be more vocal this year, with regard to the plight of Tamils in Sri Lanka, as witnessed by Congress Party Leader Sonia Gandhi’s response to a letter from Tamil Nadu’s DMK Leader M. Karunanidhi. Gandhi said the “shared” Karunanidhi’s concerns “regarding the disturbing developments in Sri Lanka vis-a-vis the Tamils.”

“I shall take up the matter with the Minister of External Affairs (Salman Khurshid),” she said in her 30 January, letter. However, there is no telling how these developments coupled with the regime’s desire to do away with the 13th Amendment will impact New Delhi’s attitude to Sri Lanka in Geneva. India always maintains its absolute support to the regime in Colombo, at least overtly. But there is no doubt that the US initiatives to bring Sri Lanka to book on reconciliation and accountability issues post war are at least covertly, backed in full by New Delhi.

On notice

It was US Assistant Secretary of State Robert O. Blake who first gave notice that a second, US-backed resolution was on the cards, as early as September last year. The message came before Sri Lanka appeared at the Universal Periodic Review in Geneva, and soon after the country unveiled its National Action Plan on Reconciliation, based on some of the recommendations of the LLRC report. The action plan promised swift remedies, some as soon as six months, especially with regard to disarming and investigation and prosecution of those highlighted in the LLRC report – including Karuna, Pillaiyan and the EPDP – as being culpable in human rights abuses, within six months and regardless of political links.

Nearly one year after the first resolution was adopted in Geneva, the US Government believed a second was necessary because it was clear that while there had been some progress on reconciliation issues, there had been virtually ‘zero discussion’ on accountability post Geneva 2012, highly placed diplomatic sources said. While the Action Plans were comprehensive, it was found that LLRC recommendations on human rights abuses had been virtually untouched. The US and other members of the International Community including UK and the EU continue to feel that there are credible allegation of human rights abuses during the final phase of the war with the LTTE, that need to be addressed. “It was not that there was absolutely no progress, some things had been done. But when it came to accountability, there are these gaping chasms that need to be addressed,” one source said.  The US also began to get increasingly disturbed by some political events that occurred at the latter part of last year, especially the move to impeach the Chief Justice which began at the latter part of last year.

By the end of 2012, Washington decided it was time to put Sri Lanka officially on notice with regard to the second resolution, with US Ambassador to Sri Lanka Michele Sison, officially informing External Affairs Minister G.L. Peiris of the fact on 2 January. Diplomatic sources make it clear that the resolution to be brought against Sri Lanka in Geneva next month will not be a punitive one that will include deadlines or ultimatums. Instead, it is the way the US Government hopes to send a message to the world community that Sri Lanka stays on the international agenda and that the reconciliation and accountability issues here, are still very much a focus for the US and other capitals of the world.

The three-man delegation of US Deputy Assistant Secretaries that visited Sri Lanka last month was an attempt for the US government to obtain a keener idea about the ground situation in Sri Lanka in the run up to Geneva 2013. The delegation was deliberately chosen to represent different areas of concern for the US with regard to Sri Lanka, including democracy, human rights and labour and defence. Diplomatic sources said the delegation was expected to present a unified US Government stance on all these areas.

In fact, US Deputy Assistant Secretary of Defence for South and Southeast Asia within the Office of the Assistant Secretary of Defence for Asian and Pacific Security Affairs Vikram J. Singh held a nearly five-hour discussion with Defence Secretary Gotabaya Rajapaksa on training and other issues. Singh “serves as the principal advisor to senior leadership within the Department of Defence for all policy matters pertaining to development and implementation of defence strategies and plans for the region,” according to the US Embassy in Colombo. He was to note privately prior to his departure following talks with Sri Lankan officials that the Government in Colombo truly believes it has made great strides with regard to promoting reconciliation in the country.

What’s the plan, Ranil?

The delegation also held talks with Opposition Leader Ranil Wickremesinghe. The candid discussions included talks on the recent impeachment of the Chief Justice and the problem of a political settlement to the Tamil question. Interestingly, the State Department delegation also asked Wickremesinghe to outline his priorities and plans for the Opposition and how he read the present political situation. It is becoming clear that Washington and New Delhi remain as bemused about the UNP Leader’s action plan – or the lack of it – as the rest of the Sri Lanka.

Blowing hot and cold on every issue, Wickremesinghe has been unable to put up an iota of real resistance against a regime that is using the full brunt and force of the 1978 Constitution and its dressings, by way of the 18th Amendment to erode democratic systems in the country. The US, and particularly India remain concerned about the threat of creeping authoritarianism in a small South Asian island, and under the circumstances are legitimately concerned about a weak opposition that further hinders the cause of democracy. In fact, diplomatic circles repeatedly affirm its resignation to work with the regime in power in Sri Lanka at the moment, largely as a result of a near-impotent opposition party that refuses to offer a credible alternative to the Sri Lankan people against the ills of the incumbency.

Yet Wickremesinghe soldiers on, buoyed by his party’s new Constitution that affords him sweeping powers to hold the sword of Damocles over his most serious – yet largely ineffective – competition within the UNP, Sajith Premadasa. Wickremesinghe is engaged in a vicious battle of cat and mouse with Premadasa at the moment, dangling the deputy leadership over the younger politician’s head, threatening to appoint multiple deputy leaders and generally dilute Premadasa’s role in the Party. In fact, having lost his place in the Working Committee because he is yet to be reappointed UNP Deputy Leader, Premadasa has been reduced once more to nothing more than an MP from Hambantota, even though the wider UNP support base continue to see him as a serious contender for the leadership.

Plagued by internal rifts, the UNP is too preoccupied to play any major role in changing the lives of the Sri Lankan populace. Its numbers eroded by crossovers and an arrogant leadership that is driving more members away from the Party, Wickremesinghe’s reign threatens to reduce the UNP to a non-entity in Sri Lanka’s opposition movement. In fact, the recent impeachment saga saw the JVP led DNA and the Tamil National Alliance in particular, putting up greater resistance to the Government juggernaut, filing legal action to blockade the Divi Neguma legislation, choosing to support Chief Justice Bandaranayake’s Court of Appeal petition and turning activist in the battle to stop her removal.

All the while, the UNP Leadership made contradictory statements, banned its MPs from going to court, chastised its members who attended court to hear a landmark Supreme Court ruling on the PSC and flatly refused to mount any serious opposition to the Government’s patently flawed and illegitimate process. It was not completely bereft of heroes in the saga, only because of valiant attempts by UNP MPs like Lakshman Kiriella whose position within the PSC to oppose the Government majority and unceasing campaign following the Opposition walkout, kept the main opposition’s role alive in the historic battle of wills between the Government and the judiciary.

In fact, information now coming to light indicates that Wickremesinghe offered less resistance to the impeachment than the Government’s own unofficial ‘independent committee’ to review the PSC report.

Independent review of PSC

At least three for the four members of the unconstituted independent panel convened by President Mahinda Rajapaksa to review the PSC report days before Chief Justice Shirani Bandaranayake was impeached by Parliament and removed from office told Government officials that there was no basis upon which to proceed with her removal, it is learnt.

The Daily FT exclusively reported on 24 January that the ‘independent committee’ the President promised would be appointed to study the PSC report at the Institute of Chartered Accountants last month had comprised former Central Bank Deputy Governor Ranee Jayamaha, former Secretary General of Parliament and current Secretary to the Parliamentary Council, Dhammika Kitulegoda and Consortium of Humanitarian Agencies Executive Director Jeevan Thiagarajah.

The review panel had first been convened at Temple Trees on 7 January. Also present at the meeting were External Affairs Minister G.L. Peiris, Presidential Secretary Lalith Weeratunga and Central Bank Governor Ajith Nivaard Cabraal.

At a subsequent meeting with newspaper editors on Monday (28) January, President Rajapaksa revealed a fourth member of the panel, Dr. L.J. Mark Cooray who resided in Australia, had found the PSC report had merit. He also claimed that all four reviewers had been unanimous in their endorsement of the PSC report.

Authoritative sources said that while some observations had been more conservative than others, the three officials the Government has refused to officially name came to the same conclusion that the evidence in the report did not support the PSC’s findings of guilt. At least one observer found that the column of the Watawala Committee report that was overseeing the sale of Trillium Apartments dealing with discounts granted to other purchasers of the apartment Bandaranayake had purchased for her sister had been masked in the PSC report.

It is also reliably learns that the former Central Bank official had scrutinised the financial transactions and had been unable to find any basis upon which charges of financial misconduct could be framed. The report submitted by the former Parliamentary Secretary General had been more conservative in its observations, sources said, adding that however even that was reportedly supportive of the fact that there was no basis in the charges to oust Bandaranayake. Despite criticism levelled at the Supreme Court Justice who gave evidence before the PSC, some of the observers had found nothing in her testimony that was accusatory of Shirani Bandaranayake, a source said.

Dr. Cooray in his observations on the impeachment opined that the impeachment process had been in accordance with the Constitution. “Provisions of the Constitution are brief. They may be inadequate. But they are being followed,” the Law Professor pointed out. He also said that there was no article in the Sri Lankan Constitution that made provision for judicial review in relation to procedure involving Parliament or the President. Dr. Cooray retired as an Associate Professor of Law in Macquarie University in Sydney in 1995. Dr. Cooray is reported to have given a convincing and well argued report on the impeachment process that provided justification for Bandaranayake’s removal, Daily FT learns.

With the exception of Dr. Cooray, the Government has repeatedly declined to name the three other independent reviewers of the PSC report. The reports by the independent panel were submitted to Presidential Secretary Weeratunga “even though it was clear they were never meant to be read,” highly placed sources said.

Sixty-five years after winning independence from the British, Sri Lanka stands at a decisive moment in history. For all intents and purposes, it is a country with an all-powerful and openly autocratic Government, no real Opposition, a judicial system that is compromised and broken and facing innumerable international challenges that threaten to further economically enslave and oppress the citizenry. Liberty has come to mean only a beautiful city and the ability to move freely, peace has come to mean merely the silence of the guns. Economically, Sri Lankans are under siege, but the numbers, the new highways and hotels all tell another story.

The ugly underbelly of the Government’s apathy to minority concerns, civil liberties, human rights and democracy is the story that will dominate the Geneva news cycle. The real question is whether Sri Lankans will continue to be mesmerised by the piper’s music that promises economic development, prosperity and brings the dream of being the ‘Wonder of Asia,’ tantalisingly close – or whether Sri Lankans will awake to the grim realities facing the country, six decades after it first cried freedom.