More than mere obstacles on the road to Governance?

Dr. Paikiasothy Saravanamuttu

Recent media attention has focused on the appointment of Mr Palpita as an Additional Secretary in the Ministry of Public Administration, the incident involving the Provincial Chief Minister and the Navy in the East and the assurance given by the Prime Minister to the security forces that any accountability mechanism in the transitional justice process will be domestic, not international.  In all of these events and in varying degrees of intensity, the government does not come off well, be it on account of incapacity and/or disregard for the core tenets of governance it stood committed to in January 2015 and its understanding of the process of transitional justice it committed to and since, the September sessions of the UN Human Rights Council and the resolution it co-sponsored there at that time.

Mr. Palpita’s appointment is an outrage. He stands indicted in the largest case of fraud in respect of public finances and is still able to operate with relative impunity in public service.  Action should have been taken against him according to the Establishment Code when he was indicted. It wasn’t then; it isn’t now or at least it hasn’t yet. As pointed out in the statement by the Centre for Policy Alternatives:

As noted above, he has been indicted before the High Court by the Attorney General. The Procedure to be followed when a Court of Law or a Statutory Authority proceeds against a public officer is provided in paragraph 27 of Chapter XLVII of the Establishment Code. As already pointed out by several civil society organisations, Paragraph 27:10 provides that where legal proceedings are taken against a public office for a criminal offence or bribery or corruption the relevant officer should be immediately interdicted by the appropriate authority. It has to be emphasised that  several decisions of the Supreme Court and the Court of Appeal have  stated that the procedures laid down in the Establishment Code in general and paragraph 27:10 (of Chapter XLVII) in particular are mandatory and cannot be superseded or disregarded without due legal authority.

The question arises as to whether those in power and authority are ignorant of or oblivious to the facts of the case.  How can they?  How could they? In both instances this egregious violation of governance has exposed the inability and/or unwillingness of the government to fulfill its commitments to governance without exception.  That this could have happened and presumably with the presumption that it would pass without comment or condemnation because it required neither, begs the question of capacity and commitment with regard to governance.

Damage limitation is very much in order, not just in terms of the government’s loss in credibility, but also in terms of the country’s tryst with governance after the dark years of yore. Responsibility must be acknowledged and the decision reversed.  Moreover robust safeguards must be instituted to prevent recurrence.  The minister has denied responsibility for the appointment.  Who takes responsibility?  What of the Public Service Commission?

With regard to the incident in the Eastern Province, the basic question that springs to mind is what on earth were the forces doing at a school function?  One would have thought, certainly hoped, that under the new dispensation, the blatant militarization of its predecessors would have ceased and that even if more concrete and substantial steps from those already effected towards its jettisoning have yet to materialize, even symbolically steps would be taken to continue to signal sincere and unwavering commitment.  The manner in which the Chief Minister expressed his displeasure at the lese majeste meted out to him notwithstanding, he ought to have declined to participate in a school event with the participation of the military.  Moreover, are tri-forces bans on an elected representative, the Chief Minister of the Province no less, appropriate in a functioning democracy?   Ringing out the old and bringing in the new may well take time, but ringing it out is a must and time of the essence.

Both the President and the Prime Minister have publicly stated that any accountability mechanism will not include foreign judges.  The Geneva resolution of 2015 on Sri Lanka, which the Government of Sri Lanka co-sponsored provides for the active participation of international and Commonwealth judges.  The issue here is that from the perspective of the victims and their families, especially in the North and East from which they are predominantly drawn, any mechanism that is exclusively domestic will not be credible in their eyes.  The report under the aegis of the UN High Commissioner for Human Rights called for a hybrid mechanism – a combination of domestic and international judges.

The statements from the President and Prime Minister may well spring from a perceived political necessity to dismiss the allegation by supporters of the former regime about transitional justice being in effect a process through which war heroes will be turned into war criminals. Allaying the fears and concerns, such as may exist within the forces on this score is of course important.  The point should be made to them that the allegations are not about the forces per se but rather in respect of certain incidents and that the honour of the forces will be affirmed if these incidents are credibly investigated and those responsible brought to justice.  Furthermore, there is a process of public consultations on mechanisms for reconciliation to be commenced this month.  This columnist is the secretary of the Task Force charged with that responsibility.  Hopefully all stakeholders will come forward with their submissions and not be deterred by statements by government leaders, which appear to limit their scope.

The incidents above, in small and more substantial measure indicate the magnitude of the challenge of governance.  We have come though to a point at which explanations and excuses wear thin.  The transition we embarked on last January needs a feel good factor amongst the public to animate it, a predominant belief that there is a trajectory of progress and that it is unambiguously in the direction of governance.

Reconciliation and Unity: Warnings

 Dr.Paikiasothy Saravanamuttu

Recent developments in the north and east have raised concerns on the one hand of a purported LTTE revival and on the other about the continued use of the PTA to arrest Tamil citizens and of the modalities of the arrests being reminiscent of the Rajapaksa era.  Some 23 Tamil civilians have been arrested in connection with the discovery of explosives and the suicide jacket in Chavakachcheri.  Three arrests, in particular, by the Terrorism Investigation Division (TID) of former LTTE cadre of ranking who have undergone rehabilitation after 2009, namely Ram, Nagulan and Thalayan, have aroused media attention. Sivakaran, who was Secretary of the Youth Wing of the ITAK and suspended from that post in the run-up to the 2015 Presidential election on account of his public opposition to the TNA’s support for the Sirisena candidacy, has been released on bail.  He was arrested for allegedly assisting the others to leave the country.

Media reports further state that the Police Media Spokesman, ASP Ruwan Gunasekera acknowledged that the three were the most senior LTTE cadres arrested at the end of the war in May 2009. ASP Gunasekera has also stated that the three were not rehabilitated for the minimum stipulated period of a year and that they have been working with military intelligence.  In the Nation newspaper of 30^th April 2016, he is quoted as saying:

We do not know why they were released prior to serving one year minimum in rehabilitation. They have been working together with Army intelligence.

Serious questions invariably arise from this.

The Prime Minister has announced that the PTA will be replaced with legislation along the lines of the British anti-terrorism legislation.  The pros and cons of that model aside, the issue of the continued use of the PTA for mass arrests of Tamil citizens in the meanwhile, raises serious concerns about either the change of heart of the government in respect of demonstrating its commitment to governance and reconciliation on the ground, or, with regard to its ability to communicate effectively and thereby ensure the implementation of policy and attitudinal change at the ground level.  Perceptions, as has repeatedly been pointed out, matter in politics.  The arrests impact them, with at least one person making the point to this columnist that the objective of the arrests is to deter people from engaging in commemorative activities in the week marking the anniversary of the end of the war.  Fear is once again being seen as the key in a renewed interest in keeping a population in check, to assuage the fears and prejudices abroad in the politics of the south.

Questions also arise into the stated association with military intelligence of some of those arrested. What is the nature of the association?  Was it voluntary, did they have a choice?  Is this what was meant by “rehabilitation?  Why were they released before they served the minimum period of one year in rehabilitation? Whilst the national security argument in matters of military intelligence can be acknowledged, so too must the public interest in practices employed that risk undermining both.

Importantly, this begs the question about the discovery of explosives and the suicide jacket in Chavakachcheri.  Does the available information in the public realm, not provide the basis for asking the question as to whether the whole thing was manufactured to embarrass the government and to redound to the political benefit of other actors?

All should be revealed and Tamil civilians should not have to worry anymore about being used as hapless pawns in any sordid political power struggle, largely in the south.

The Northern Provincial Council’s passage of a resolution on constitutional reform, embodying the proposals of the Tamil Political Council, has also aroused a debate about the reemergence of secessionist political claims, the real import of an argument for federalism and the merger of the northern and eastern provinces.  Clearly, putting the political and constitutional settlement of the ethnic conflict on the back burner in the January 2015 Presidential election was politic from the point of view of winning majority community votes.  The fear of the “F” word seems to be back again.   Any mention of it is being labeled at best as an unnecessary and at worst, suspect effort to disturb the political peace and societal comfort delivered unto us by that election result.  The issue however will, cannot and must not go away.  The Federal Party or ITAK espousing federalism is surely unsurprising; they have been doing so since their inception.  As to why it should give rise to such concern, real or imagined, is to this columnist, the real concern.

Were the next four to five months to constitute the unique, indispensable opportunity for a new constitution, they also constitute the unique, indispensable opportunity to resolve this question.  The nature of politics being such, all sides will have to recognize that this cannot be done without honourable compromise in terms of optimal demands or by delegitimizing core  proposals of key stakeholders.  Whilst political rhetoric may well hold political constituencies as intended, the process will require debate and discussion of details, of substantive, meaningful power- sharing, with labels in mind no doubt, but not predominating.

The most recent survey of public opinion by the Centre for Policy Alternatives indicates that there is still a politically significant segment of the population, which is undecided on the issues of a constitutional settlement of the ethnic conflict and transitional justice.  In terms of winning public opinion, there is much to play for – easily accessible information and argument and government championing of the reform agenda.

The President has been quoted as having promised major decisions and action in the national interest after May Day.  No better place to start than on issues such as these.