Towards impunity and democratic erosion

The Silvas are at it again. A week dominated by news of political brats on the rampage once more, this time directing their rage at an Army Major, ended with the soldier recanting his story and the two main suspects in remand being transferred to prison hospital on “medical” advice.

The whole incident smacked of impunity and was strangely reminiscent of the incident involving a Samurdhi Officer being tied to a tree on the orders of the father of the political brat in question, who also recanted his story and withdrew his complaint against Public Relations and Public Affairs Minister and Rascal-in-Chief of the present Government, Hewa Koparage Mervyn Silva.

Public anger over apparent Police inability to arrest chief protagonists of the alleged assault, Silva’s son Malaka and son of Sri Lanka’s Ambassador to Turkey, Bharathi Wijeratne, compounded by Minister Keheliya Rambukwella’s assertion that the Police did not want to arrest the Minister’s son while he was paying homage to the kapilavastu relics at Kelaniya, reached fever pitch by the weekend.

Finally, on 17 September, more than a week after the assault allegedly took place outside the Hilton Colombo Residence at Union Place, Malaka Silva and Rehan Wijeratne walked into the Police station to surrender themselves, further reinforcing the fact that law enforcement was loathe to make the arrest on a Minister’s son.

The day after the two main suspects and five others were remanded by the Colombo Fort Magistrate till 24 September, Minister Mervyn Silva walked into court armed with a medical report and requesting that his son and Rehan Wijeratne be admitted to prison hospital for medical treatment. The Magistrate acquiesced and just hours later, Major Chandana Pradeep’s lawyer went to court with an affidavit from the soldier saying Silva Junior and Wijeratne did not assault him although the five others in remand did. The affidavit said that the matter would be settled amicably.

Questions abound as to whether it was money or intimidation this time that resulted in the Major’s swift change of mind, but one way or the other, the matter is resolved Sri Lankan style, at least until the Silvas’ next victim crawls out of the woodwork.

Nevertheless, in one fell swoop, the assault, delayed arrest, hospitalisation and recant demonstrated that for all intents and purposes Sri Lanka’s justice system is broken and perhaps irrevocably so. The consistent assaults on democratic institutions and the rule of law by the present

administration have finally culminated in a fiasco that no longer offers any surprises. The tragedy in fact, is the predictability of the sequence of events, and that Sri Lankans continue to be mute, unengaged observers in the face of a systematic break down of its legal and democratic systems.

Nevertheless, together with the ICC T20 World Cup now underway in Sri Lanka, the antics of Malaka Silva and Rehan Wijeratne kept the public distracted and entertained, even as the Government reverted from election mode to business as usual by slapping a tax increases on imports of potatoes and tinned fish.

Ironically, the latest edition of the Silva dramas was unfolding even as Sri Lanka hosted the 58th Commonwealth Parliamentary Association Conference in Colombo, and coincided with the visits of US Assistant Secretary of State for Central and South Asian Affairs, Robert O. Blake and the UN Human Rights Commissioner Navi Pillay’s technical team for consultations with Government officials, all three sets of meetings concerned in some way or form with strengthening democracy and the rule of law and post-war reconciliation and accountability in the island.

Blake’s back

With little more than a month before America goes to the polls to pick the next US President, US Assistant Secretary of State and former US Envoy to Sri Lanka, Robert O. Blake landed in Colombo last week. During his three day visit, ‘Bob’ Blake met with political, civil society and business leaders for wide-ranging talks on the Sri Lankan Government’s National Action Plan for the implementation of recommendations made by the State-appointed Lessons Learnt and Reconciliation Commission, demilitarisation in the Northern Province and the importance of reaching a final power sharing deal with the minority Tamil community.

The visit is believed to have been a part of America’s consistent engagement with Sri Lanka which US officials noted privately has improved vastly since the adoption of a US led resolution at the UN Human Rights Council in Geneva, urging Sri Lanka to make good on its post-conflict reconciliation and accountability obligations.

During his meetings with senior Government members, Blake laid emphasis on issues that are believed to be of vital importance to the US with regard to the Sri Lankan situation. Choosing his words carefully, the Assistant Secretary apparently told Government officials that continued US engagement with Sri Lanka on its post-war issues was not a witch-hunt and assured them that America had no axe to grind with Colombo.

However, Blake reiterated that the US diplomatic machinery was now in motion following the adoption of the UNHRC resolution. As such, the Sri Lankan response would be monitored, next at the UNHRC’s Universal Periodic Review in Geneva and subsequently, at the UNHRC session in March 2013.

Analysts point out that Sri Lanka’s belligerence and back-peddling of the issues for two years after the end of the conflict, resulted in moving the issue from merely the purview of the US State Department’s South Asia Desk into the realm of multi-lateral engagement, where the interventionist liberal worldview holds greater sway.

Assistant Secretary Blake, constantly denigrated and dressed down by Lankan officials both during his tenure as Ambassador and later during his visits in the current capacity, was actually engaged in efforts to keep Sri Lanka on the bilateral agenda of the US, although he was fighting a losing battle against a deeply mistrustful Sri Lankan side.

US wants elections ASAP

Blake’s discussions with officials in Colombo last week were focused on several things, chief among them the need to hold elections in the North as soon as possible. While the Government has promised to hold polls in the north before September 2013, Blake’s message from Washington was very clear and mirrors New Delhi’s views on the subject – that elections in the north need to be held as soon as possible, preferably immediately.

However, the Rajapaksa administration is facing an impossible situation on this front. While most top Government officials are agreeable to holding the northern elections well ahead of the September 2013 deadline, it has now been revealed that the major impediment to early polls is Economic Development Minister Basil Rajapaksa.

Basil Rajapaksa is spearheading the ‘Uthuru Wasanthaya’ or Northern Spring programme in the Northern Province. Rajapaksa, known to be an enforcer and implementer in the current regime especially on the development front, is keen to meet at least some of the programme’s goals before the Government calls elections in the region. This is perhaps in the hope that it would demonstrate to the northern people that the UPFA Government has their economic wellbeing at heart and stem the support enjoyed by the Tamil National Alliance in the area.

Given the landslide victory the TNA enjoyed in the north during local government elections in 2009, hope of the UPFA making a mark in the northern districts is slim. A landslide for the TNA would send the signal that the Government has failed to win hearts and minds in the north and demonstrate to the world that the Tamil people continue to deeply mistrust the present regime. It is unlikely therefore, despite Blake’s urging on this front that the ruling administration will hold elections in the north any time soon.

Oversight or snub?

The US Assistant Secretary of State arrived in Sri Lanka hours before US Ambassador to Libya Chris Stevens was killed in the city of Benghazi in attacks on the US consulate there by angry mobs protesting a movie insulting the Prophet Muhammad. The incident, which marked the first time a US Ambassador has been killed in the line of duty since 1979, shocked the world even as anti-Western protests spread to various parts of North Africa that recently overturned dictatorships and are experiencing the first taste of democracy including Egypt and Tunisia.

Significantly, the Sri Lankan Government has failed to issue a statement of condolence and condemnation about the US Envoy’s death, prompting some buzz in diplomatic circles about whether this was an oversight or a sign of Colombo’s increasing annoyance at Washington. Some analysts joked that the External Affairs Ministry in Colombo issues messages at the drop of a hat, which makes the lack of a statement on such a grave matter seem almost contrived.

It could perhaps also be that the Sri Lankan Government was preoccupied last week with the 58th Commonwealth Parliamentary Association Conference getting underway in Colombo. President Mahinda Rajapaksa was to host a special dinner for some CPA delegates, an elaborate affair that lasted over three hours. Observers at the function noted in disbelief that Opposition Leader Ranil Wickremesinghe and President Rajapaksa were locked in a tête-à-tête throughout most of the evening.

‘Another’ commissioner?

There was some speculation given how long the discussions lasted between the two political enemies, as to whether the UNP Leader was trying to convince the President to support the appointment of a Commonwealth Human Rights Commissioner.

Both Leader of the House Nimal Siripala De Silva and External Affairs Minister G.L. Peiris have come out strongly against the idea, with Minister Peiris claiming it was duplication since the UN has a similar office. Minister Peiris argues that the Commonwealth is focused on development and the appointment of a Human Rights Commissioner would affect the body’s objectivity. The British delegation countered this saying that the UN’s focus was also development, but there was still a Human Rights instrument in force.

The appointment of a Human Rights Commissioner for the Commonwealth is key on the agenda of British Foreign Secretary William Hague. The UNP maintains close ties to Hague and is therefore supportive of the move. The Government is naturally reticent on the issue since it is already facing enough problems on its human rights record internationally and would prefer the Commonwealth kept a healthy distance from these matters.

Despite Sri Lanka’s insistence that the Commonwealth need not venture into the realm of human rights, the country is facing stiff opposition within the body as it prepares for the Commonwealth Heads of Government Meeting scheduled to be held in the island in 2013. Canada is threatening to boycott the summit because of its venue given Sri Lanka’s lack of progress on human rights and accountability issues.

Eran vs. GL

Meanwhile, Opposition Parliamentarians who participated in the CPA conference sought to call the attention of the body to the erosion of democracy in Sri Lanka, especially since the conference agenda was dominated by issues pertaining to strengthening democracy and the rule of law.

On Wednesday, 12 September, during a Workshop Session on the Politics of Constitution making, the opposition and the Government locked horns openly. Speakers at the session were South African Speaker of Parliament, Max Sisulu who made a presentation on the principles of constitution making and Sri Lankan External Affairs Minister and Constitutional Law expert, G.L. Peiris.

In his presentation, Speaker Sisulu emphasised the need for wide stakeholder consultation in constitution making and noted that since constitutions were the basis of law in a country, the process adopted to amend a constitution must be more wide-ranging and difficult than the process of amending a bill. Sisulu’s presentation was followed by a presentation by Prof. Peiris on Sri Lanka’s thriving democracy, after which the Session moderator indicated that a 90 minute discussion was to follow but informed the participants that Prof. Peiris would be leaving after 30 minutes.

Upon hearing this, UNP National List Parliamentarian Eran Wickramaratne, whose focus areas include good governance and State sector corruption, created a commotion when he raised his hand and informed the moderator that he sought to make an intervention and would prefer to make it in the presence of Prof. Peiris.

The moderator having allowed Wickramaratne time, the UNP legislator said that on 9 September 2010, the Sri Lankan Government of which Prof. Peiris was a member, amended the Constitution using the urgent bills provision. Urgent bill provisions, though prevalent in most constitutions, being used to amend the constitution was a violation of the principles articulated in the presentations made at the session, Wickramaratne told conference delegates.

In his critique, the Opposition legislator said that the urgent bill provision was utilised to pass the 18th Amendment to the Sri Lankan constitution, which firstly removed term limits imposed on the executive presidency and secondly repealed the provision for a constitutional council that represented all shades and opinions in parliament and was responsible for the setting up of apolitical independent commissions to oversee law enforcement and elections.

The 18th Amendment passed those powers on to the executive president in a clear cut erosion of parliamentary democracy, he said. Responding to the UNP Parliamentarian’s remarks, Prof. Peiris argued that urgent bills were relevant to urgent constitutional amendments as well, in instances when it created stability in the country.

The Minister said that Sri Lanka needed that stability at the time and defended the use of the urgent bill mechanism to pass the constitutional amendment in question. The chamber erupted at Peiris’ defence of the Government’s tactic, with delegates dismissing his response as ‘nonsense’. Disturbed by the response of the room, Prof. Peiris went on to say that he was a great admirer of the South African constitution and launched into some reminisces of his time at Oxford University.

Overall, opposition legislators said they were disturbed by the Government’s attempt to pull off a diplomatic coup by portraying Sri Lanka as a five-star democracy when that was far from the truth. As a follow up to his remarks at the CPA Conference session, Wickramaratne in a critique entitled ‘Sri Lanka: A diminished democracy,’ outlined the erosion of Sri Lanka’s parliamentary democracy beginning with the constitution of the Executive Presidential system in 1978 which resulted in a shift of power from the legislature to the executive. In a scathing criticism of the 18th Amendment to the constitution, Wickramaratne said that the two term limit was an important check on the “unbridled power” of the executive presidency, adding that “countries that have no term limits are normally one-party states or dictatorships.”

“The 18th Amendment to the Constitution was rushed through as an urgent bill with no public debate. Legislators had access to the proposed 18th Amendment on the morning of the debate where it was adopted into law,” the Opposition legislator wrote.

Hakeem thwarted

Meanwhile, the tussle for leadership in the Eastern Provincial Council ended earlier in the week with the Sri Lanka Muslim Congress offering its five seats to the UPFA, providing the ruling party with the majority to govern the council. Frantic backroom negotiations between the Rajapaksa Government and SLMC Leader Rauff Hakeem came to naught after President Rajapaksa said he was washing his hands off the Eastern Provincial Council affair and in a tongue-in-chief remark to TNA Leader R. Sampanthan during his meeting with the latter on Tuesday (18) said that he had in fact told Hakeem to form the council with the TNA.

Hakeem is Justice Minister in the UPFA Government and was hoping to get something more for the Congress before assuring the Government of its support in the east. The SLMC Leader’s rationale was that if he was able to wangle something more from the Government, it would give his decision to go with the Government in the east credence, since it was a complete thwarting of the SLMC’s mandate there. However, opposition members claim that the entire SLMC oscillation was stage-managed with it being almost a foregone conclusion that Hakeem would have no choice but to go with the Government in the Eastern Province in order to keep his ministerial position secure.

Where the TNA promised the SLMC a Chief Ministerial slot if they joined the opposition to form the council, the UPFA merely appointed a Muslim Chief Minister, having placated Sivanesathurai Chandrakanthan alias Pillaiyan with the incongruous position of Presidential Advisor. In fact analysts are remarking at the silence from nationalist quarters over this appointment, especially since it was an open secret that the UPFA’s nationalist coalition partners were intent on blocking further concessions to Hakeem in exchange for his support in the east.

Had UNP Leader Ranil Wickremesinghe appointed Pillaiyan “advisor,” it may have inspired serious vitriol from nationalist hardliners, but President Rajapaksa is supremely confident that his Government’s nationalist credentials are beyond reproach and will suffer no blows from such appointments. This has perhaps been demonstrated over the years, with the induction of former LTTE Eastern Commander Karuna Amman into the SLFP and the Government’s liaison with Kumaran Pathmanathan or KP.

In fact analysts say the UPFA’s excellent nationalist credentials means the administration can do no wrong in the eyes of hardline sections of the Sri Lankan people, giving it the best possible chance to sell a just permanent solution to the ethnic question by reaching a settlement with the Tamil people, where Wickremesinghe’s bona fides on the other hand would constantly be thrown into doubt if he were to engage in such an attempt.

With all three provinces in play in the 8 September election now firmly under the control of the UPFA, the Government juggernaut seems unstoppable, despite the erosion of democracy and civil liberties Sri Lanka has seen in recent years.