The weekly Times column, “Focus on Rights” by Kishali Pinto Jayawardena, in the Sunday Times, Sri Lanka, on 08November 2015, forwarded by the Asian Human Rights Commission
Kishali Pinto Jayawardena
At one time, we had women survivors of rape and abuse in Sri Lanka praying that the Goddess Kali may visit their attackers when they failed to get justice in courts. Probably they still do.
But in that most singular of ironies, we now have Ministers joining those ranks of the vengeful as they prayed to God in Parliament this week to punish gross corruptors, given that the law has been rendered virtually silent.
Anti-corruption claims only ‘rhetorical’
This is despite grandiose assurances by their own ministerial colleagues that the drive against corruption is not ‘pure rhetoric’ as they committed to anti-corruption treaties abroad with the requisite fanfare. Yet such claims are useless, merely proving the self-defeating nature of classically circuitous arguments.
For, on the face of it, what we have so far is only rhetoric which explains why some Ministers have started praying. That failure cannot be remedied by more and more rhetoric. Indeed, the so-called ‘yahapalanaya’ (good governance) battle against corruption has apparently been reduced to a secretive game of smoke and mirrors, with basic legal procedures being disregarded to calamitous effect amidst key state agencies fighting with each other. What greater nonsense is this? Do Sri Lanka’s leaders believe that its citizens are like gullible children, to be beguiled with sweet words even as political roguery prevails?
From his Medamulana hideout, former President Mahinda Rajapaksa must be laughing uncontrollably no doubt.
Confusion in regard to ministerial functions
An excellent example of this monumental confusion emerged from this Wednesday’s adjournment debate in Parliament on the floating armoury maintained in Galle by a private maritime security company, Avant Garde during the Rajapaksa regime
Regardless of disputed facts and counter-facts which are pending before court, there are core questions in issue. The first question concerns the propriety of Minister of Law and Order TilakMarapana carrying a brief (as it were) for Avant Garde in his ministerial capacity on the floor of the House, referring moreover to information that had come into his hands when functioning as a counsel for Avant Garde. The Minister had, on his own admission, appeared as counsel for Avant Garde in January 2015.
Minister Marapana’s explanation was that his onetime client had given him permission to speak. But fundamental questions in regard to this defence of a former client under cover of parliamentary privilege and in a ministerial capacity no less, remains of paramount public interest. Second, the Law and Order Minister’s allegation of grandstanding by police officers acting on ulterior motives in regard to the Avant Garde arms controversy immediately raises eyebrows.
The impact of such a negative statement by the Minister on the morale of the Department of the Police coming under his own Ministry will almost certainly be devastating. Unsurprisingly this ministerial denunciation drew a brisk commendation from former President Rajapaksa soon thereafter.
Need for legitimate criticism
Justice Minister Wijedasa Rajapaksha’s sentiments in regard to the controversy were no less problematic. On his own admission, he had intervened to prevent the arrest of former Defence Secretary Gotabhaya Rajapaksa based on a ‘legal assessment’ of the issue.
So are the Ministers of Law and Order and Justice speaking and performing in their capacities as lawyers or as ministerial functionaries? This is a perfectly legitimate question. The agencies tasked with deciding to arrest or not as the case may be, are the prosecutors and the police. A ministerial intervention into a legal process, emanating from the knowledge (or otherwise) of that particular functionary, infringes on the remit and extent of his authority. This would have been scandalous in any jurisdiction respecting the Rule of Law. Not so in Sri Lanka, it seems.
The legality of the Avant Garde floating armoury remains to be ruled upon by the court. Nonetheless, it is disturbing to hear government representatives say that criticism of the relevant prosecutorial or legal process leaves the country vulnerable to outside allegations that Sri Lanka’s domestic processes are subverted to the extent that they are no longer workable. This is an argument that sounds remarkably similar to attacks made by Rajapaksa propagandists on critics of the former regime not so long ago. Such crippling language should change at least now. The national effort should be to critique and improve domestic processes rather than stifle scrutiny based on disingenuous reasons.
Cabinet responsibility cannot be shirked
Equally at odds were the passionate defences mounted by the two Ministers (one a former Attorney General at that) of the Department of the Attorney General, referring copiously to their own legal practice and experience thereby. Again, the public is left uncertain as to whether the two Ministers were speaking as lawyers or as ministerial functionaries, which latter capacities were certainly what they were purporting to represent in the House.
Meanwhile, the Cabinet spokesman stated later in a poor damage control exercise that the two Ministers did not speak for the Government. This is an unacceptable claim. In what parallel universe can two senior Ministers disassociate themselves from government while expressing sentiments in Parliament in their ministerial capacities? Has Sri Lanka’s political establishment become completely blind to the principle of collective Cabinet responsibility?
The Government’s answerability to the people in whom sovereignty resides, as our Constitution optimistically tells us, is disregarded at will. As of now, the euphoria of January 2015 seems very far away indeed for the ordinary citizen standing aloof from these bizarre happenings.
Defeating the people’s victory
Sri Lanka’s tragic curse is that its political leaders have historically been shrewd, communalistic and opportunistic on the one hand or inept, helpless and ineffectual on the other. Unfortunately this ruinous dynamic still continues, defeating and indeed mocking the democratic gains achieved this year.
Indeed, if the Sirisena-Wickremesinghe administration wants to pave the way towards its own fall, it cannot (uncannily enough, just as much as the Rajapaksas did), act with greater aplomb to ensure precisely that very result. This is not limited to the Avant Garde issue but embraces the entire spectrum of anti-corruption action or lack thereof. Whether swift action will be taken to arrest increasing public anger in this respect still remains to be seen.
In the alternative, dangerously uncertain times loom ahead for this country and its people.
