Criticism of the state and the failure of the rule of law

By Kishali Pinto Jayawardena

The difficulties that thousands of Sri Lankans face in securing their basic right to life, (let alone the quality of life), in this Sinhala and Tamil New Year, appear to be of concern to only to a few in this country. The illusion of living in a functioning system even in midst of extreme horror, deprivation, death and destruction continues. The crowds of frenzied shoppers jostling each other on the main city roads obviously have no thought of the increasing numbers eking out a bare existence in refugee camps with their family members dead or dying and deprived of their few belongings, whilst being reduced to the miserable merry-go-round of settlement and resettlement in power struggles between government/militant troops and terrorist brigands with, in addition, being forced to witness their children being co-opted as fighters.

The extreme dysfunction in regard to the manner in which life is lived in Sri Lanka, depending on whether a person belongs to particular social strata, possesses a particular ethnicity or lives in a particular part of the country, has heightened the sense of the totally surreal. Our supposedly 'established democratic traditions", steady human development indicators including the continually much vaunted high rates of literacy and apparent economic growth helps us to maintain this essential facade of normal existence.

But just how 'normal' is this life? Do we retain a sense of pride in living in this country? Do we have basic faith in the institutions that exist to help us to redress the wrongs done to us, including the courts, whether this be in regard to a simple land dispute, an unjustified denial of a promotion or in relation to more political issues such as the freedom to cast a vote at any election in the belief that this vote is counted or the right to insist that public resources cannot be squandered by power hungry politicians? Can we be sure of being treated fairly when we enter a public institution, including a police station, regardless of our rank, race and political clout? These are the simple questions that ought to compel all right thinking Sri Lankans to demand a society in which these basic rights are secured to all and where the right to live without oppression is not limited to a particular class of people.

For a period of time, the contrast between the manner in which the Nepali people won their freedom from a despotic king and the pitiful way in which Sri Lankans are still struggling to secure a functioning democratic system, has been troubling my mind. One manifest example was the manner in which the king dismissed all the commissioners of Nepal's National Human Rights Commission and proceeded to make his own compromised appointments to the body. Consequently, the majority of Nepali civil society refused to engage in any manner whatsoever with a commission that they stated was politically compromised. This insistence paid off when the king was forced to yield his powers and the political commissioners all resigned after strong public pressure.

We had a similar experience here in 2006 when President Rajapaksa proceeded to make his appointments to the constitutional commissions, including Sri Lanka's National Human Rights Commission, bypassing the concurrence of the Constitutional Council. The argument that these appointments were on the basis of necessity as the Council could not be constituted due to the minority political parties failing to nominate the one remaining member to the Council, was such a laughable farce that it could have been exposed by a child. Yet, Sri Lankan 'professionals' and 'intellectuals' only outdid one another in vying to get appointments to these compromised commissions.

In one way, the parallels between Sri Lanka and Nepal are many. While the democratic and political histories of the two countries differ in many respects, the human rights and rule of law crises are strikingly similar. In both countries, constitutional guarantees of basic human rights, buttressed by ratification of a number of international human rights covenants were not adhered to domestically. Like in Sri Lanka where emergency law had all but replaced the ordinary law, proclamations by the Nepali king curtailing the freedom of the press, extraordinary emergency laws allowing liberal use of powers by the forces and amendment of social welfare legislation in order to curb the activities of non governmental organizations perceived to be critical of the monarchy, were commonplace. Yet, as pointed out in this analysis, what was unique was that Nepali activists steadfastly posited protection of human rights and the rule of law at the core of the conflict resolution process.

It is in this regard that the Nepali experience provides a good case study for dynamic interactions that can come about between international support and domestic action. Well organized political lobbying resulted in a body as political as the old United Nations Commission on Human Rights, unanimously adopting the 'agenda 19' resolution against the Nepali government at its 61st session. Again, it was primarily through well targeted 'people pressure' that India and the United States yielded to the establishment of the Nepal Office of the Office of the High Commissioner for Human Rights (OHCHR). The efforts of this Office and its team of both international and domestic monitors, in bringing an end to the conflict, came in for significant praise by the Nepali people and the media.

In contrast, we compromised on the issue of human rights protection in regard to the peace process from its inception, due to our reluctance to offend the LTTE and agreed moreover to the Norwegians assuming the impossibly dual roles of mediator as well as facilitator whilst conceding to a monitoring mission consisting of retired military men instead of credible human rights jurists. Currently, despite harsh indictments by individual UN monitors and a critical report by the UN Working Group on Disappearances, we struggle to convince the UN Human Rights Council of the necessity to intervene more strongly in the Sri Lankan crisis. We still fail to place the rule of law and the failure of our domestic institutions of justice at the centre of our criticism of the State. And to add even more negative measure, an ill conceived campaign within the cricketing arena by international non governmental organizations such as Amnesty International has meanwhile, (predictably), turned out to be extremely counter productive in its impact. Can the contrasts get any worse?

One particular feature of the Nepali uprising needs to be stressed at this point as well. The clamor for democratic change was manifested at all levels, from the wealthy and the not-so-wealthy to the downright poor. Those who were tossed into prison for protesting against an unjust monarchical usurpation of executive power on February 1st 2005 included intellectuals who could have been equally at home in the Western capitals of the world as well as trade unionists, lawyers, journalists and ordinary citizens. Many of these men and women also faced threats from the Maoists. Instead of opting to flee the country, they made a conscious choice to work from within. And this they did, not by closing their minds, eyes and ears to the atrocities that were being committed but by exhibiting a fierce determination to protest, uncompromisingly and consistently.

Committed non-governmental organizations (NGOs) were in the forefront of this struggle. Here too, corrupt 'civil society' NGO's acting at the request of vested political interests or for pure filthy lucre were in existence but the difference was that the good was not lumped in with the bad. Instead, those sections of the Nepali media, both mainstream and alternative, showed commendable maturity in their critical reporting. The interlinking networks that arose between academia, the media, the activists and the professionals proved to be the strongest links in pulling that country back from the brink. Sadly we have yet to see similar strengths being evidenced in Sri Lanka.