Holding a long spoon when supping with the devil

By Kishali Pinto Jayawardena

Let me start this week's column by articulating one profound truth; indisputably the megalomaniac in tiger stripes in the north is a terrorist, not a liberation fighter nor your genuine revolutionary. His one time brother in arms is also a terrorist, even though he has now painted himself with democratic stripes. The long spoon that the government should have held when supping with the devil has proved to be lamentably illusionary; ordinary Tamils whether they be academics (should we presume by now that Professor Raveendranath, the former Vice Chancellor of the Eastern University, an honourable, respected and gentle man who was unfortunate enough to be in the wrong place at the wrong time, is no more?), businessmen, journalists have been abducted, some to return after pressure was exerted or money raised but others to remain in that piteous, uncertain vale of the 'disappeared.'

But let me now proceed, to yet another unavoidable truth; the grievous wrongs committed by non-state actors, as heinously condemnatory as they are, pales into relative insignificance when the nature of the Sri Lankan State is examined. It is often said by the hawks that the Government should put itself in a position of strength when dealing with the Liberation Tigers of Tamil Eelam, by which it is meant a position of military strength by capturing rebel held tracts of land. I beg to differ however. To my mind, military victories over patches of dry earth enlivened only by the blood of countless of soldiers from Sri Lanka's rural heartlands who have died on its surface (and whose sacrifices may well be in vain as we have seen in the constant deadly dance in the North/East where militarily captured areas have been reclaimed either through political capitulation or by insidious infiltration), speaks only the antagonistic language of one adversary to another.

Instead, the true position of strength that the Government should speak from, should be the language of justice and rights, illustrated by a precise demonstration, point by point, as to the manner in which it is different from its terrorist adversaries. It may be contended that this is mere naivete; that a Government fighting a ruthless separatist movement cannot afford to indulge in any such luxuries. But, this is exactly the kind of naivete by which great thinkers of our times accomplished what was thought to be impossible, whether it was a Gandhi fighting against imperialist might or a Mandela overthrowing an apartheid regime. In the absence of this articulation of justice by the Sri Lankan State, Sinhalese and Muslims as well as Tamils stand to lose.

For make no mistake about this fact; the barbaric thrust of the State has been experienced against the majority Sinhalese as well as the minorities; the forty thousand disappeared in the South during the eighties and early nineties will bear grim testimony to this assertion. Then again, the constant brutality practiced by police officers in situations of ordinary law and order whether in relation to petty offenders or persons mistaken of being criminals is another manifestation. Today it is your Tamil neighbour, tomorrow it may well be yourself; the classic warning not to ask for whom the bell tolls as it may be for you, is a living reality in Sri Lanka today.

But what do I mean by demonstrating a commitment to rights? Put practically and basically, it is to eschew government intimidation which is now apparent to the extent that the Secretary of the Defence Ministry and the brother of the incumbent President has felt himself emboldened enough this week to verbally threaten the editor of the Daily Mirror and warn her of consequences by militant forces which, as reportedly affirmed by him, he may be powerless to prevent.

On another level, it means to abstain from deliberately fostering an atmosphere of terror through the implementation of emergency regulations whereby arrests are made, not by identifiable state agents adhering to the requirements of lawful arrests but anonymously.
On yet a further level, it means demonstrating wholesale respect for constitutional institutions and processes; in this regard, the most imperative need would be restoring the practical functioning of the 17th Amendment to the Constitution, bringing back the Constitutional Council (CC) and re-constituting the so called independent commissions through new appointments of its members with the concurrence of the CC. It means making sure that the legal and prosecutorial system actually works in regard to identifying and punishing perpetrators of enforced disappearances and other grave human rights violations, rather than putting forward fact finding commissions of inquiry. If the Sri Lankan State captures this true position of strength, it can capture the minds and hearts of its people, thus relegating the coercion of terrorists to the obscurity to which it belongs.

Assuredly, the short term gains that abuse of the rule of law and the Constitution might bring to the political establishment is comprehensively cancelled by the long term detriment that is caused not only to the political regime but indeed, to entire societal, political and legal structures. The short lived administration of Ranasinghe Premadasa is proof enough, surely, of this fact.

In each instance, it is precisely the failure to implement the rule of law on the part of authorities, political, administrative and legal, that leads to defensive action. For example, Sri Lankans started using the individual communications procedures before the United Nations Human Rights Committee in terms of the Protocol (acceded to as way back as in 1997) to the International Covenant on Civil and Political Rights (ICCPR), only at a point when there was considerable public disenchantment with the judicial process. Similarly, the failure to ensure effective investigations and prosecutions of human rights abuses has now led to the call for international human rights monitoring.

Recourse to international mechanisms, support or monitoring is not the panacea for all the ills that beset this country. Instead, they should be used only to the extent that they compel exposure and revision of the domestic order. In the ultimate analysis, all the monitoring in the world will not help us if we cannot work our democratic system to its optimum and demand accountability from our rulers. Nepal exemplifies this lesson. It is time that Sri Lanka learnt from its example.