Focus on Rights

In Thailand last week for a short working session with its National Human Rights Commission, (which I must say, has been performing far better under stress than its counterpart in Sri Lanka though its future seems somewhat uncertain with the new Samak Sundaravej government), I was struck by how short and illusionary the promise of change can be in countries such as Thailand and Sri Lanka.

The last time I was in Bangkok, it was as an expert witness for the criminal defamation trial of Supinya Klangnarong, a diminutive but doggedly courageous Thai journalist who had been sued by Thaksin Shinawatra for stating that his election as Prime Minister facilitated the rise in profits of one of Thailand's largest telecommunications company, Shin Corporation. Her trial became a rallying cry for reform of the country's political structures. In early 2006, Bangkok's Criminal Court dismissed the defamation suit stating that the comments were made in good faith and in the public's best interests. The press for political reform and tackling the massive corruption scandals that plagued Shinawatra became greater. Later, a military takeover removed him from power but plunged the country's democratic institutions into turmoil.

The December 2007 elections brought in as Prime Minister, a controversial political figure Samak Sundaravej, who many saw as Shinawatra's proxy. Shinawatra himself, this week, returned to Thailand from exile and was promptly granted bail on his corruption cases. It is doubtful now as to whether these cases will proceed to any successful conclusion; "the anti-Thaksin tide was overestimated by many" a member of the National Human Rights Commission confided to me on Sunday "people outside the country saw Thais dancing on the streets of Bangkok in 2006 and thought that the country's problems were over. This was far from the case."

Clearly, people never danced on Colombo's streets at any point. Though some similarities exist such as the overwhelming nature of the corruption scandals in both countries, the nature of the military's interventions in Thailand has never been a contemplated reality in this country. More to the point, the conflict in the south of Thailand (devastating as this has been to the Muslim people of that area) has not been as all pervasive and as great a threat to the security of the State as the Liberation Tigers of Tamil Eelam (LTTE) has been. But my mind was taken up with the illusion of people power and the preciously short promise that it brings. In Thailand, people demonstrated for change in 2006 with tremendous bonhomie but little actual results in the long run. In Sri Lanka, people pressure of some sorts was to lead to the 17th Amendment to the Constitution which has now been contemptuously shortchanged by the Mahinda Rajapaksa Presidency. Democracy is inevitably a struggle of some sorts; the tragedy is that, however great may be a people's striving for a more decent society to live in, that hope can be betrayed not only by politicians but also by bureaucrats, administrators and public servants who go with the political tide for personal or political gain.

Insofar as Sri Lanka is concerned, the purposeful burial of the 17th Amendment by the government witnesses more and more feeble excuses advanced for not bringing the Constitutional Council (CC) into being. Earlier, we were told that the delay in appointing the one remaining member to the CC was because the consensus nominee, former Auditor General, Ms S.C. Mayadunne was already holding a consultancy post in a project coming under the Secretary General of Parliament. Thereafter, when he publicly stated his willingness to step down if his appointment as member of the CC was confirmed, government spokesmen advanced the bizarre reason this week, that the Parliamentary Select Committee examining the 17th Amendment must complete its deliberations before the appointments to the CC are made.

On a previous occasion, this column published the Interim Report of this Committee which has been sitting for almost two years now, on many occasions unable to even find the requisite quorum. All that is required now are the signatures of the UNP appointees to this Committee (replacing the dissidents) to make this Interim Report a final one to be presented to the House. It is cause for shame that the Minister of Constitutional Affairs who chairs this Committee should allow the Committee to be used as a convenient excuse for the delay in appointing the members to the CC. While it is correct that the 17th Amendment may be further amended in several respects to ensure its more efficient functioning, the appointment of duly nominated members to the CC is a separate issue altogether. A responsible Minister of Constitutional Affairs would have resigned from his portfolio in any other country. In this country, it would be fruitlessly naïve to expect such an eventuality to occur.

Indeed, after the Committee concludes its sittings, it may well be suggested by these feverishly imaginative government spokesmen that the contemplated amendments in the Report should be passed by the House before the remaining members to the CC are appointed. It is in such an absurd situation that we are in currently.

The abrupt and unfair removal of the Bribery and Corruption Commission's Director General is just the most recent symptom of this malaise. Previously, it had been pointed out in this column that the final draft of the Bribery and Corruption law that came in Bill form before Parliament referred to the Director General merely as a Director. The more grandiloquent phrasing in the Act obviously emerged through the parliamentary debates and amendment process. The framers of the law probably would have reasoned at that time that the security of tenure of the Director General need not be guaranteed to the same extent as the Commissioners. However, this has been proved to be a grave defect in the law as we see now. Amendment of Section 16 of the 1994 Act should provide that the appointment of the DG is on defined criteria and the removal, subject to statutory safeguards.

Legal niceties aside, even where the law and the Constitution provide for definitive procedures, they are blatantly bypassed. This appears to be the common fate of people of fragile democracies. As Thailand has shown, people power may arrest this trend for some time but the road, to paraphrase Robert Frost, is indeed tortuously long and there will be many, many miles to go before one can sleep.

In the S/Times of 24/2 I read, with some consternation, Kishali Pinto Jayawardene's [KPJ] "Rebutting a defence of the Sansoni Commisssion". This purports to be a rebuttal of my "defence" whose contents she keeps to herself, picking out only 'choice bits' she proceeds to trash with gusto. When I wrote to this paper 'A Response' to KPJ's attack on the Sansoni Commission[SC], I expected it to be published in full and followed up by any reply she thought fit, thus enabling readers to draw their own conclusions. Instead, she keeps this response to herself, dipping into it only for selected extracts that suit her arguments. I write again, hoping against hope, that this piece will be published 'in toto'. I really cannot understand why KPJ has decided to make no end of personal comments critical of me. I quote "Mr D…..an 'insider'(as he terms himself)." "Commission's Secretary to which title lays claim". I am afraid her reading of the Report has been as selective as her extracts from my Response.

I would refer her to p.292 of the Report to verify my "claim" to be an 'insider' and Secretary to the Commission. I do accept my mistake in attributing to her a mysterious informant's claim that Justice Sansoni remarked "I have never headed a political Commission". She quotes Rajan Hoole as the recipient of this alleged confession, and proceeds to build up her whole argument on its basis. She claims that Hoole's arguments [on which KPJ bases her own] are based "on intimate conversations with individuals close to Justice Sansoni, including Justice Sansoni's secretary [as distinguished from the Commission's Secretary to which title Mr.D lays claim."[!] At least one of Hoole's "individuals close to Justice S" has spun him a yarn that he was the Justice's "secretary" - presumably Private Secretary. Mr.Sansoni employed no such 'secretary. I was, however assisted by a junior S.L.A.S colleague Mr.R.S.Sivasubramaniam who was the Commission's Asst. Secretary [p.292]. He was an official of high integrity who would never have attributed this fictional statement to the Justice whom he revered. If Justice Sansoni ever really felt that he was the cat's paw of a 'political commission' he would have resigned at once, the honourable man that he was.

As to Hoole's and KPJ's insinuating various motives for Justice GPS de Silva's 'withdrawal' from the proceedings - all I have to say is that when he 'withdrew' all sittings had been held in Jaffna where, presumably, there had been no undue pressure on him from the "usual suspects"(Casablanca). The HR Process inventory evaluated HR processes in an organisation and determined whether the basics were in place and institutionalised, that HR processes were aligned with the strategic intent of the organisation, and were mature, efficient and the best in class. HR tools were used to gather information on Manpower Planning and Recruitment, Talent Management, Performance Management, Learning and Development, Rewards and Recognition, the Work Environment and HR Operations.

I, therefore, stand by my original statement "he had to go back to the Dept which could not spare the services of the Deputy Solicitor General to assist such a long term Commission." Unless, of course, KPJ and Hoole can produce contrary evidence from "intimate conversations" and mythical 'secretaries.' As for the anti-Tamil attitude that Hoole and KPJ impute to Senior State Counsel Tennekoon - I can do no better than quote Justice Sansoni [para 105] "I detect a subtle, though vague, suggestion of that sort in the submissions - I consider it an entirely wrong and mischievous suggestion" [para 107]" It is an unfair charge that has been made that he showed himself to be biased against the Tamils or the TULF." KPJ treats with disdain Sansoni's dismissal of these allegations "which he must do, given that the functioning of the Commission was at stake."

KPJ takes umbrage at my reference to Mr.Tennekoon's subsequent elevation as Chief Justice of the Marshall Islands. The relevance of this statement is because KPJ, in her first article, herself referred to Deputy Solicitor General's subsequent elevation as Chief Justice of Sri Lanka Hence my reference to Mr.Tennekoon post-Sansoni! KPJ's final para refers to the non-punishment of perpetrators. This function, she should be informed was not the function of the Commission.

A final word of advice to KPJ from a retired administrator, Secretary of two and Chairman of two Presidential Commissions - please avoid personal comments about a writer when you have to meet his arguments. Let me give some examples of what she should strive to avoid: "as he terms himself", "Mr.D's patently snide comments.. his tendentious alacrity", "to which title Mr.D lays claim", "lamentably suspect motive on the part of Mr.D.", "Mr.D's vehement but not quite wise protestations." I leave it to the reader to observe how hot headed indignation seems to have overtaken cool argumentation.

Well, at least it is some concession that Mr Tissa Devendra (albeit grudgingly) admits to making a mistake in attributing anonymous sources to me. However, the sense of grievance under which he appears to labour is amusing given that, in his first reply to the original column of February 10th 2008, he ignored clear attribution of sources, imputed references to persons who were not even mentioned in the column, bypassed what was there in the Commission report itself and indulged in barbed sneers such as "she appears to have no end of anonymous informants'! If this is indeed, 'cool argumentation', I can only say that his definition is extremely puzzling.

In this second reply, Mr Devendra (TD) engages in still more of these disingenuous arguments. He says that in dealing with his response last week in the 'Focus on Rights' column, I had taken out 'choice bits' and 'selected extracts.' However, he is quite unable to pinpoint even one specific extract or 'bit' that I had ignored. May I emphasize that such manner of reply was completely within the norm as TD had not been referred to in any respect in the original column even though he seems to have now taken on the mantle of the defender of the Sansoni Commission? I will only refer to the most egregiously problematic assertions that he makes in this second response. First, I did not at any point challenge his being the Secretary of the Sansoni Commission though my caustic linguistic flourishes, (which appear to have riled him), may have been misleading. The one instance in the Sansoni Report where this is acknowledged is however, not in page 292 of the Report as Mr Devendra erroneously states but in page 277 of the Report (in Sessional Paper No V11 - 1980).

But let me now deal with the more important points. He disputes again the authenticity of the quote attributed to Justice Sansoni. Any debate on this point needs to be however between him and Mr Rajan Hoole whom I was quoting. The point where he errs is stating that I have "built up my whole argument' on this issue.

The quotation regarding Justice Sansoni was an introduction to the column, the main thrust of which was the complex interaction of state law officers with the Commission and the reasons for Justice GPS de Silva's withdrawal. As stated last week, I have corroborated the exact reasons for this withdrawal from a legal personality (not "intimate conversations" with 'mythical 'secretaries) at the very core of these happenings in the Department and whose account I am more inclined to accept rather than TD's defensive version as an administrator.

I will not concern myself with the other petty points that he makes. Insofar as the gratuitous advice that he offers me is concerned, I will only observe that if his first response had been objective, sensible and accurate, my reply too may have been different. Perhaps, he may be better advised in the future, to abide by the very advice that he sees fit to offer.

Deliberations on illusionary political change