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The arrest of General Fonseka:Politics becomes blood sport

Last Sunday I burdened the reader with my take on how President Rajapakse and his government are squandering the fruits of their resounding victory on 26 January. I cited as instances the delaying till November of the swearing-in for the second term and the government’s sledge-hammer approach to dealing with dissent and criticism both before and after the presidential election. The arrest of Sarath Fonseka goes beyond the sledge hammer. Sri Lankan politics is now a blood sport.

It is impossible to see a political purpose in this arrest. To say that it is for reasons of national security is worse than a bad joke. The arrest betrays the purpose of personal vengeance. In a civilized society individuals do not take the law into their own hands to settle personal scores. It would be worse to abuse the power of the state for the purpose of personal vengeance. That Fonseka has insulted, angered and even slandered the Rajapakse brothers is not a secret. But that is no excuse for the government to abuse the power of the state to destroy him.

That General Fonseka would have done worse things had he won the election and become President would be the lamest of all excuses for arresting him now. In that counterfactual scenario, those of us, who are committed to constitutional democracy, rule of law and due process, will be opposing the hypothetical President Fonseka just as vigorously and vehemently as we are now opposing the present government for its dealing with General Fonseka.

The abuse of state power is becoming the rule and not the exception in Sri Lanka. There is no rule of law in this arrest, but only the rules of the Animal Farm. The arrest is an assault against Sri Lanka’s tottering democracy. For the first time in Lanka’s electoral history, a political opponent has been arrested following a national election. And for the first time a political candidate is going to be tried in a military court.

Due process in 1962, no process now

Even the accused in the 1962 coup, distinguished servicemen and who never ran for public office, were not court-martialed but tried in the civil courts. They were prosecuted and defended by the best and the brightest among Sri Lanka’s lawyers. When the government first set up a Special Court to try the accused, the judges appointed to that Court, men of character, learning and independence, ruled that their Court had been improperly constituted! The government was forced to properly reconstitute the Court.

The accused in 1962 were tried in open court and punished under the law. In punishing them somewhat uniformly the judges were critical of the law for not allowing them to impose different sentences in proportion to the level of involvement of each accused. The men were later acquitted on appeal to the Privy Council. Due process was in full force then. There is no process now. Only the brute force of a regime that is insecure in spite of its secure victory only two weeks ago.

The trial of the accused in 1962 at least had the semblance of defending a duly elected government. The impending trial of Sarath Fonseka and the co-accused already has all the symptoms of an elected government going mad, violating the trust of the electors and trampling over the limits of constitutional government. Governments are elected to govern within the law and in accordance with common decency. The principle of limited government is now under serious threat in Sri Lanka.

The Sri Lankan state is becoming a state of intolerance. It is intolerant of dissent and criticism, but tolerant of those who attack political opponents. State-sponsored and state-ignored harassment of independent journalists and political opponents are now commonplace in Sri Lanka.

The thirty year war alienated the Sinhalese, the Tamils and the Muslims from one another. Now the government is irreconcilably dividing the Sinhalese. The JVP and the LTTE sowed dissension from outside the structures of the State. The actions of the government are devouring the state from within.

Rather than being humbled by the victory in the 26 January presidential election, the government has arrogated itself to turning the heat on all its critics and opponents. Instead of being magnanimous the government is being mean spirited. The arrest of Sarath Fonseka is not the culmination but the beginning of a new phase of intolerance and repression.

Restoring the limits of government

The victory over the LTTE has been hailed as restoring the State’s monopoly over violence. Yes, monopoly over violence has been restored, but for what purpose, and to what end? What good is it for the people when the State restores monopoly over violence but throws away the moral compass of good government?

Has the government dared too much in arresting General Fonseka? We will not know unless there is push back to reestablish the constitutional limits of government. The push back has already begun. People have begun protesting. The location of the first protest near the Supreme Court was both symbolic and significant. The Supreme Court cannot be oblivious to the public concern and even anger over the arrest and detention of Sarath Fonseka when it hears the fundamental rights petition that has been filed by the General’s wife. And the Court should be inspired by the example of independence that their predecessors demonstrated in 1962.

The Colombo Chief Magistrate, Champa Janaki Rajaratne, has already shown inspiring courage in berating the police over prosecuting the protestors at Hulftsdorp. Others should follow her bold example. The legal profession in Sri Lanka has an important role to play in pushing back this regime’s thrust towards totalitarianism. Pakistan’s slide into becoming a military polity was blessed by a pliant judiciary that invoked the doctrine of necessity. It would take fifty years before an irrepressible Supreme Court Judge and marching lawyers could end Pakistan’s military dictatorship. Sri Lanka’s judges and lawyers must act now and not let their country go the way Pakistan did. No doctrine of necessity can justify a dictatorship. The only necessity is to resist and reverse slide into dictatorship.

It is heartening to note that Ranil Wickremesinghe has publicly promised to secure the release of General Fonseka. One would only hope that he would try to accomplish this in a more public way than through working out backroom deals with a government that deserves street loads of public scolding. By arresting Sarath Fonseka the government has given the Common Opposition the biggest reason to stay united, rise above the pettiness of party symbols, and contest the April parliamentary election as a common front.

The immediate release of Sarath Fonseka and all political prisoners including journalists should be the first goal of all right minded Sri Lankans. If there are charges against the detainees, let them be investigated independently by the Attorney General and the Police and let the law take its course. The culture of independent investigation has become quite alien to Sri Lanka, but it is time that it was restored within the state to countervail the state monopoly over violence.

The assurance and the conducting of a free and fair parliamentary election should be the second goal. The opposition parties should insist on the establishment of an independent coordinating committee acceptable to all recognized political parties, to assist the beleaguered Commissioner of Elections in the conduct of the elections. President Rajapaksa and his government can spare themselves and the country unnecessary grief by releasing Sarath Fonseka and all the political detainees and agreeing to set up an All-Party Election Committee.

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