SRI LANKA: A welcome to the new government and hope for quick progress in restoring the rule of law

The double defeat suffered by former President Mahinda Rajapaksa in the Presidential Election of 8 January 2015 and in the Parliamentary Elections concluded on August 17, hopefully, marks the end of a long period (1978 to 2015) of onslaught on democracy and the rule of law. All eyes will turn to see how the new government of the United National Party, backed also by President Maithripala Sirisena, will undo the enormous damage done to the democratic state apparatus of Sri Lanka. The new government has promised to do just that. And in this regard they deserve the support of all the people.

Without doubt, the obstacles facing the new government are formidable, on every front: in the economy, within the system of governance, and in the relationship of people in a multi-racial, multi-ethnic, and multi-religious society. What stands in favour of the new government is that every citizen is demanding change: an end of the arbitrary and authoritarian style of governance; an end to the associated spread of corruption; and an end to the abuse of power, as soon as possible.

The outstanding performance of the Commissioner of Elections, Mr. Mahinda Deshapriya, and his staff, backed also by the excellent corporation extended by the Sri Lanka Police, is a clear indication that a great desire for change, having considerable stamina, still exists in the country, for achieving such a change. What is needed now is a demonstration of the will of the Government to take the steps required to “get the clock working again”.

Even the limited achievements, in the form of constitutional amendments in the preceding months, particularly the 19th Amendment, have already paved the way for ending the style of governance known as the executive presidential system.

Now the issue is to place in a democratic apparatus and to practically undo the system of politicisation that has prevailed over a long period. This requires initiative, both from the government, as well as efforts on the part of leaders of various branches and departments of the government.

Modernisation in the system of governance and in the overall framework of democracy and rule of law is the touchstone on which the performance of the new government will be tested. The key task is for the government to ensure that the separation of powers is effectively enforced so that all the branches of the government can fulfil their obligations to the people.

The events in recent months have shown that the law enforcement agencies in the country desire to end the paralysis imposed by previous regimes, in order to be able to operate within an overall framework of the rule of law. The law enforcement agencies are demonstrating that they wish to curb the prevailing lawlessness and, if obstructions are not placed in their way, they are quite capable of protecting the people. However, achievement of this aim requires allocation of funds to ensure that Sri Lanka’s law enforcement agencies will have the same facilities as those available to similar agencies in developed countries. This is one of the urgent tasks needing the government’s immediate attention.

The disgust in the Mahinda Rajapaksa regime was mostly due to its widespread corruption and its connivance with the forces that oppose the rule of law, such as those engaged in the drugs and narcotics trade and other forms of illegal activities such as money laundering. The Mahinda Rajapaksa regime created an ethos that discouraged the duty conscious members of law enforcement agencies, including those in the customs services, from performing their duties. Avenues had been created for various members of the former regime, particularly members of the Rajapaksa family, to benefit from every form of illegality that created black money within the country.

The new government will soon be tested on their promises to end corruption and to bring the perpetrators of such crimes at the highest levels and connections to government to book. Already, in the period since January 2015, public discontent about the slow performance of the new government in this regard has been heard. The excuse of the government so far have been that despite the results of the Presidential Elections, the new government has been a minority government, and that its performance has been obstructed by powerful politicians associated with the Rajapaksa regime.

Now, post August 17, these excuses will not be available to the new government. People will eagerly wait to see tangible results in the curbing of corruption. In particular, people will eagerly await the results of many inquiries that have been announced by the Financial Crime Investigation Division of Sri Lanka Police since January into the conduct of powerful persons associated with the Rajapaksa regime. The former regime also promised that if they were to return to power through parliamentary elections, they would ensure that this police division would be abolished. The people, having voted against the former regime, have demonstrated that they support the work of this unit and the other work initiated relating to the curbing of corruption.

As the present government has itself admitted, the existing format of the Commission against Bribery and Corruption is defective and is not in keeping with the development of similar institutions in developed countries. Therefore, it is a dire need to allocate adequate funds and to take other necessary steps in order to ensure that Sri Lanka is in possession of an effective anti-corruption agency that is capable of performing its functions, as per the needs and requirements of a nation with a modern economy.

In ensuring the separation of powers, one of the most difficult tasks that the new government will face will be in the area of ensuring a competent and an independent judiciary. Ever since 1978, judicial institutions in Sri Lanka have faced an enormous onslaught. The worst aspects of such an onslaught took place during the time of the regimes of Chandrika Bandaranayake and Mahinda Rajapaksa. The close and unprincipled cooperation between Chandrika Bandaranayake’s government and the then Chief Justice Sarath N. Silva, dealt a virtual deathblow to the independence of the judiciary.

The Mahinda Rajapakse regime continued in the same direction, to the extent of illegally and forcibly removing Chief Justice Shiranee Bandaranayake and appointing a stooge Chief Justice with the appointment of Mr. Mohan Peiris. An important facet this onslaught was also the nominations of certain persons, who were thought to be politically supportive of the regime, into the higher echelons of the Judiciary. The traditional norms of appointments into the higher Judiciary and the norms for ensuring competence and integrity were all ignored. As a result of this overall onslaught, the public perception of corruption within the Judiciary also spread. Undoing these is inseparable from the task of good governance to which the new government claims allegiance. Added to this list of ills in the Judiciary is one more outstanding problem, which, if unresolved, will be a great blow to the people’s confidence in judicial institutions. This is the problem of extraordinary delays in adjudication.

The new government will also have to ensure the independence of the Attorney General’s Department. The Mahinda Rajapaksa regime had so penetrated this department that even during the short period, from January 2015 on, many of the attempts to enforce the rule of law had been sabotaged by several of the officers of the department. The proper functioning of the legal system demands prosecutors that are committed only to the principles of law and that have no other loyalties. Ever since 1978, this principle has been undermined. The new government will have to address this urgently.

If the government’s promise, of resolve these dysfunctionalities created by former regimes, is to be achieved, the government should create some immediate means by which the problem of the Judiciary can be addressed, in particular.

The Asian Human Rights Commission proposes that a high powered Commission be set up, one that has the power to seek the assistance of international experts on the independence of the judiciary. The public should be given open access to such a body so that the public can bring all their grievances to the immediate attention of the Commission. This can be done swiftly, and on this basis the people of Sri Lanka can test the government’s genuine interests within a reasonable period of time.

The government has rightly promised that the relationship between all communities will be governed on the basis of the principles of fairness. This is one of the primary needs of the country and much of the future stability of the nation will depend on this. The present composition of the government, judging by the election result, is conducive to making a significant progress in this direction.

One of the worst aspects of the Mahinda Rajapaksa regime was the particular type of a Ministry of Defence developed under the leadership of his brother, Gotabaya Rajapaksa. In fact, what was developed was a deadly machine of internal surveillance and repression, Kafkaesque in nature. An essential ingredient was to develop a section of intelligence services purely for tracking and shadowing anyone representing a dissenting view against the government. Abductions, enforced disappearances, and placing of all types of traps are how this machinery has been utilised.

With this election result, such a dangerous defence ministry will come to an end. The Asian Human Rights Commission (AHRC) hopes anything bearing any similarity to such an apparatus will never be created again. The work of this Ministry needs to be thoroughly investigated. There are many unaccounted for murders believed to have been done for political purposes that require to be immediately investigated.

The killing of Sunday Leader Editor Lasantha Wickramatunga, and many other journalists who were seriously injured and forced out of the country, come immediately to mind. The disappearance of the cartoonist Prageeth Ekneligoda and many other such serious crimes call for immediate investigations. Under former regimes, all such investigations were prevented. The President himself bears responsibility for criminal neglect to ensure proper investigations into many such crimes in the country. The AHRC hopes to see quick progress in such investigations.

As a human rights organisation that has been frustrated by the utter carelessness towards human rights and the suffering of the people displayed by the former regime, the AHRC unhesitatingly extends support and good wishes to the new regime. As a human rights organisation, the AHRC will stand firm in performing its duty of monitoring the respect for human rights in Sri Lanka, and in all positive actions in this direction the AHRC extends its fullest support to the new government.

The AHRC hopes that all citizens’ groups in Sri Lanka who have played a vital role in the recent months in ensuring the defeat of the Mahinda Rajapaksa regime and in the installing of a new government will now engage in the task of exercising eternal vigilance, which is the only way to ensure good governance.