A slow choking of legitimate dissent

By Kishali Pinto Jayawardena

It appears that the silencing of legitimate opinions and reasonable dissent is inexorably advancing. Witness this week's arrest of a columnist of this newspaper and the government's announcement of a national media policy that is expected to result in heightened censorship. This slow tightening of the noose around the throat of democratic dissent is by no means peculiar to the Rajapakse Presidency. Sri Lanka has undergone such cycles time and time again, losing hundreds of innocent lives and irreparably damaging thousands more. At each point, the country has recovered with enough hope to dream of a better future but with its citizens just that degree more brutalized and that little bit more desensitized.

Increasingly however, it is becoming difficult to envisage a positive ending to this awesomely self-destructive cyclic journey; the government's gains on the war front aided as it has been by the swing of international opinion against the Liberation Tigers of Tamil Eelam (LTTE) has remained convincingly unrelated to the utter contempt that it shows for the Constitution, the disdain with which it treats the minorities, the impunity that it provides for human rights violations and the manner in which it encourages endemic corruption.

Legitimate criticism of national institutions

Further, controversy regarding the annoyingly ubiquitous Responsibility to Protect ("R2P') concept, (which, incidentally is by no means an established rule of international law), has led to it being confused with legitimate questions of decreased governance. The tendency now is to attack even internal criticism of malfunctioning national institutions on the irrational basis that this is part of a sinister international conspiracy that exists, for the most part, only in a few fevered minds. Some conscienceless opportunists have, for example, bypassed thoroughly legitimate criticism of the Human Rights Commission of Sri Lanka (HRCSL) by collapsing the issue of "R2P" within this same argument through a process of twisted logic that is as incomprehensible as it is specious.

Apart from the unconstitutionality of the appointments of its current Commissioners, there were specific reasons for the HRCSL's decreased legitimacy. Most reprehensible was its decision in the early stages not to proceed with inquiries into cases of enforced disappearances that had occurred during the eighties and early nineties, which inquiries were initiated by its predecessor. The decision, officially (and astonishingly), minuted in a leaked memo disclosed by a whistleblower employee who thereafter resigned on grounds of conscience, was due to the apprehension of Commissioners that the government would need to pay compensation to the families of the victims. The HRCSL's more recent decision by internal circular not to generally entertain complaints that had been lodged before the Commission three months after the incident despite its enabling law not prescribing such a limitation, was another such instance. These are just two instances of the HRCSL's betrayal of its statutory mandate.

The wider point is that any subservience to the political executive is unnecessary. Rather, if the HRCSL is infused with the credibility that it so desperately needs, the government will expend far less energy in fighting justifiable criticisms. The efficacy and legitimacy of the HRCSL is an overwhelming issue of concern to Sri Lankans in whose aid this body was established. Assuredly, this vexed question has little to do with an international conspiracy, "R2P" or otherwise.

The termination of the IIGEP membership

A similar argument is applicable in regard to Commissions of Inquiry. The termination of their involvement by the current members of the International Eminent Group of International Persons (IIGEP) this week has been received with great bravado by the government which has announced that it would appoint replacements. However, this is easier said than done. The IIGEP included some of the best legal minds in the field of international human rights law who were in their approach, though the analogy is perhaps unfortunate, very different from retired Scandinavian generals. It would have been absurd to have expected them to be in Sri Lanka at each and every sitting which was precisely why this responsibility was delegated to their assistants (themselves of appropriate seniority and experience) with whom however, the Commission as well as the Department of the Attorney General has had a long and bitter running battle. Equally it is absurd to claim that the opinions of their assistants have been substituted for the opinions of the members. These are paltry hits that are both undignified and unbecoming.

Hiccups in communications between the Commission and the IIGEP, disparate methods on issues of concern and a poor public relations strategy on the part of the eminent observers were in some measure, aggravating factors. But scrutiny of the exchange of correspondence between these two bodies as well as the Attorney General reveals a far more fundamental reason for the withdrawal, namely the IIGEP's growing belief (which became cemented in recent months) that the Commission process was not sincere, effective or motivated by a desire to seek justice for the victims. On the Commission's (and indeed, the Attorney General's) part, resentment at this sometimes abrasive 'observing' by outside elements was significant. From such fundamental disparities sprang all the accusations and counter-accusations. Full analysis of these questions in the context of the acrimony among these three different actors belongs to a different space rather than a newspaper column.

One question however becomes irresistible at this point. Amendments to the Commissions of Inquiry law are now being touted as enabling its future good working. But even insofar as the relatively harmless portions of the amendments are concerned, and with all our experiences of past Commission processes that led to naught (Sansoni Commission, Batalanda Commission, Disappearances Commissions et al), surely it should not have taken this Commission a full one year of 'confidential investigations' to discover that these amendments were necessary? Could not its bona fides have been demonstrated much earlier?

Removal of an essential safety valve

Ultimately however, the IIGEP's astringently unequivocal rejection of the Commission process will cast a very long shadow. And in theory, though finding replacements may not be all that difficult, finding those with credibility may be well nigh impossible.

This was indeed, an exercise that might have constituted an essential safety valve for the burgeoning grievances of civilians caught in the cross fire of a pitiful war. If sensitively handled, this experiment may well have turned out to be quite different, providing as exemplary an example as South Africa's much hailed efforts in truth and reconciliation. Whatever the rabid nationalists, most of them comfortably ensconced with their sons and daughters overseas may crow about, it is to our collective loss that the contrary proved to be the case.