This is the question of the day. This is raised nationally and internationally and answers contrast for different reasons. In this article, I endeavor to briefly answer this question from a governance perspective, keeping in mind the present socio-political realities in Sri Lanka.
The President appointed the Commission of Inquiry on Lessons Learnt and Reconciliations (LLRC) on 15th May 2010 with a broad mandate to inquire into and report on specific matters, in terms of the Commissions of Inquiry Act. The title of the Commission and the mandate in general suggests that the objective of the appointment of the LLRC is to find ways for reconciliation among all communities, after a bloody ethnic conflict. It is also possible to argue that the LLRC was appointed to advise the Head of the State on how to avoid a national tragedy in the future. The Warrant has, among others the following term of reference:
“[inquire and report on] Institutional, administrative and legislative measures which need to be taken in order to prevent any recurrence of such concerns in the future, and to promote further national unity and reconciliation among all communities, and to make any such other recommendation which reference to any of the matters that have been inquired into under the terms of this Warrant.”
In that context, the LLRC had a mandate to examine the governance structures and its functioning to ascertain why Sri Lanka was in a “mess” in relation to ethnic harmony. The LLRC submitted its report on 15th November 2011 to the President and unlike many other Presidential Commission reports, this report is in the public domain.
Governance Related Recommendations
The Report deals with a variety of issues including the Ceasefire Agreement, Overview of Security Operations, Land Issues, Resettlement, and Reconciliation. Judging from its recommendations, we can conclude that the LLRC has also addressed its mind to the relevance of governance for overall reconciliation efforts. Perhaps there may be disagreements on other findings and recommendation, but, I believe, there is implicit consensus on the findings and recommendations on governance aspects. Being a governance and human rights activist, I was delighted to read these specific findings/recommendations. The civil society has been urging the Government of Sri Lanka (GOSL) for many years, to respect the existing constitutional guarantees and establish Rule of Law; and raised almost identical issues. The government continues to pronounce that Sri Lanka has good laws, which are respected. The GOSL never accepted that there was any paucity or deficiency in rule of law or human rights protections. Centuries ago, Aristotle taught us “Good laws, if they are not obeyed, do not constitute good government”.
For the purpose of this article let me reproduce few governance related recommendations of the LLRC, selected and clustered by me for easy reference:
Media freedom, attacks on journalists etc.
The LLRC was deeply disturbed by persistent reports concerning attacks on journalists and media institutions and killing of journalists and the fact that these incidents remains to be conclusively investigated and perpetrators brought to justice…. Any failure to investigate and prosecute offenders would undermine the process of reconciliation and the Rule of Law. (paragraph 9.114)
It is essential that media freedom be enhanced in keeping with democratic principles and relevant obligations. Steps should be taken to prevent harassment and attacks on journalists and media institutions and deterrent punishment should be imposed on those who were responsible for attacks. Priority should also be given to the “investigation, prosecution and disposal of such cases to build up public confidence in the criminal justice system”. (paragraph 9.115)
Government should ensure that the freedom of movement of media personnel in the North and East, as it would help in the exchange of information contributing to the process of reconciliation.
Legislation should be enacted to ensure the right to information (paragraph 9.115)
2. Freedom of Association
People, community leaders and religious leaders should be free to organize peaceful events and meetings without restrictions. (paragraph 9.118)
3. Law Enforcement, Police and Impunity
The Commission notes the failure on the part of the law enforcement officers to investigate offences and bring offenders to book, where the offences are committed by persons with political connections. The Commission emphasizes that all allegations should be investigated and wrongdoers prosecuted and punished irrespective of their political links, so as to inspire confidence among the people in the administration of justice (paragraph 9.203 & 212)
The Police Department is a civilian institution which is entrusted with the maintenance of Law and Order. Therefore, it is desirable that the Police Department be de-linked from the institutions dealing with the armed forces which are responsible for the security of the State. (paragraph 9.214)
An independent permanent Police Commission is a pre-requisite to guarantee the effective function of the Police and to generate public confidence. (paragraph 9.215)
Activities of illegal armed groups are of serious concern to the Commission. It appeared that the dominating presence and activities of such groups have created fear among the general public, contributing to an environment of impunity. Some of their illegal activities affected the basic rights of people such as the right to life. …. Action should be taken to disarm and put an end to illegal activities of these groups (paragraph 9.72-74)
The above recommendations are self-explanatory and need no elaboration. It speaks volumes of the present governance status. The LLRC was able to find the nexus between Rule of Law and Reconciliation. It has found that the collapse of Rule of Law and restrictions on civil liberties is detrimental to reconciliation efforts.
Priority to Tighten the Political Grip:
Probably one can argue that the whole issue of accountability (in the final stage of the war) has been ignored by the LLRC. Nevertheless, the local and international community is awaiting the response of the President, not mere GOSL, on the key findings and recommendations of LLRC. In my view, whether the government has the political will to fully implement the LLRC recommendations depends mostly, if not mainly, on whether the President and his government are prepared to respect Rule of Law. Are they genuinely prepared?
This question cannot be answered in a vacuum without understanding the basic norms of how the country is run today. Some of the most significant features of the present GOSL under the leadership of President Rajapaksha is as follows:
The concentration of power within his close circle (family and few others)
Tightening the political grip through control of free expression, media and free assembly, while taking all possible steps to monopolize information.
Politicization and weakening of public institutions including the law enforcement agencies
Militarization of civil life and civilian institutions.
The manipulation of elections, through unprecedented abuse of state resources and emasculation of opposition.
Aspects (a) to (d) above have been dealt with by the LLRC but not the (e) above. Probably there were no sufficient representations made to the LLRC on that aspect. It seems clear that the LLRC thinks these features of the regime are obstacles to engage in reconciliation among the communities. In my view, these features pose a threat to the continuity of democracy in the country, not just reconciliation.
Whether the regime is serious in implementing these vital governance related recommendations must be judged from the past conduct of the Rajapaksa regime. The regime has failed to improve governance structures and, in fact, it has shown complete indifference to governance. If we have a quick look at its governance record, almost all the public institutions including regulatory institutions and law enforcement agencies were politicized. The constitutional guarantees available for protection against politicization were removed with the 18th Amendment to the Constitution. None of the assassinations of journalists and attacks on media institutions were seriously investigated. All the cronies of the government and their families are above the law. It has never taken steps to eliminate impunity. In my view, these are well planned strategies of the regime – for a clear purpose of tightening the political hold. If the governance related recommendations are implemented, then the Rajapaksa regime will lose its political grip and a fair political equilibrium will emerge. In my view, that is not a rick the regime will take.
Probing into bona fides of GOSL
If the police are independent, being placed under an independent Police Commission as suggested by the LLRC, and de-linked from the military, and then we are bound to see a different police. Investigations will be conducted by professional policemen and evidence will be elicited, against any suspect, irrespective of the nature of the crime. They will not be subject to the dictation of the political masters. In such an event, there is a likelihood of successfully solving political or high profile crimes. Such independent investigations can expose the involvement of main players of the regime, who otherwise, comfortably sweep such investigations under the carpet and manipulated investigations. History has seen that when the law enforcement agencies become independent, corrupt leaders, including heads of the police department go to jail and new countries and new cultures emerge. That is exactly what happened in Hong Kong in late 1970s. Is the GOSL ready to accept it?
Take the case of killings of journalists, which have not been truthfully investigated by this government. There are at least two people who know those responsible for the deaths; the one who gave orders and the other who carried out the orders. If the police is given a free hand to investigate and prosecute the offenders, there is a likelihood of even judicial findings against the higher officials and politicians within the government. An investigation can expose those who were responsible for those crimes. World political experience show that such exposures have even brought down governments! Is the GOSL ready to accept it?
Freedom of expression, mostly political dissent, is something not new to President Rajapaksa because he was one who frequently used those rights at the highest level, while being in the opposition. Now, President Rajapaksha (and the regime as a whole) does not welcome any powerful dissenting grouping that can challenge his political future. However, the Government is at a natural advantage, because the people in the south honestly admire it for defeating the LTTE. The war victory (and popularity) is often used as the most powerful tool to suppress any dissenting voices. This reminds us of the famous quotation of Polybius: “Those who know how to win are much more numerous than those who know how to make proper use of their victories.” If free expression and lawful assemblies are permitted on sensitive political matters without impediment, alternative voices will certainly expose the government’s sham political devices and much more. Authoritarian tendencies will then be challenged openly. Is the GOSL ready?
The GOSL has mastered the control of media, through lawful and unlawful means. Apart from extra judicial tactics used by the GOSL with impunity, the entire state mechanism is now used for the protection and survival of the Regime. Besides, consider how the government reacts to anything that can “embarrass the government”. With that mind set, I do not see how there can be a political will to ensure full scale free expression and media freedom.
There may be other sensitive international and legal issues why the GOSL has some reservations on implementing the LLRC recommendations. On political expediency, GOSL will definitely answer affirmatively to the question, whether Sri Lanka has an independent and credible mechanism to investigate allegations of human rights violations and, in particular, the incidents during the last stage of the war. In my view, the GOSL cannot implement the governance related recommendations, simply because it believes that it is a political suicide to respect Rule of Law and protect human rights. Should the public be quiet then? As Martin Luther King Jr. said “Freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed”. Unless there is sufficient and intensive demand by the people of this country, on the streets, in Sri Lanka, the GOSL will not even consider implementing these recommendations. Then, the LLRC would be a show piece for international consumption, without any relevance to Sri Lanka.
About the author: Eisenhower Fellow, Senior Ashoka Fellow, Constitutional Lawyer and former Executive Director of Transparency International Sri Lanka