Question after Geneva: Who speaks for the majority of the majority, and the majority of the minority?


by Rajan Philips

Sri Lanka’s Geneva month has come and gone. The final act in Geneva was so unlike during the previous Rajapaksa years that newspapers had to search for uncustomary headlines. "SL Resolution adopted without vote", deadpanned one; "UNHRC unites for Sri Lanka", enthused another. Between the two hangs the story of a resolution that the Sri Lankan government co-sponsored and the 47 member Council unanimously endorsed. The question after Geneva is whether ‘Sri Lankans will unite for Sri Lanka’ to seize and build on the changes that have kept coming this year, both within the country and in its relationship with others. The onus is now primarily on the Sirisena-Rajapaksa government, and to a ‘proportionately’ corresponding extent on its opposition partner, the TNA. To put the question another way, can the government and the TNA opposition unite Sri Lankans for Sri Lanka? Reduced to political terms and as a rhetorical rejoinder to my title question: can the government speak for the majority of the majority, and the TNA for the majority of the minority, all the while including the wishes and requirements of the Muslims and the upcountry Tamil population?

The Geneva resolution has raised legal and political questions and elicited a plurality of views among Sri Lankan opinion makers. It is a welcome sign of the times that those opposing the government’s position in Geneva are able to express their opinions not only in the non-state media bearing patriotic allegiance to the former president, but also in the state media that are mostly run by friends of the new government. Imagine the state media a year ago publishing articles critical of the then government. The state media under the former government not merely shunned but condemned by name anyone critical of the government as being unpatriotic. What should be encouraging to the present government is that quite a few independent and informed voices have emanated from among the majority of the majority in support of its position in Geneva.

The Legal Question

On the legal front, the intervention by Nihal Jayawickrama virtually gives the lie to the scare stories spread about the hybrid court. One needs only to read side by side Mr. Jayawickrama’s article with the contributions of GL Peiris. One glaring difference is in regard to the alleged incompatibility between the legal system of sovereign Sri Lanka and its international obligations. In support of his criticism of the current government’s position in Geneva, GL Peiris cited the Supreme Court ruling which held that Sri Lanka’s ratification of international human rights treaties by Sri Lankan governments (first under JR Jayewardene and later under Chandrika Kumaratunga) was an infringement of the constitution and suspended their application in this country. It is rather sad to see a once revered professor of law become a pettifogging lawyer. For the Sarath Silva judgement that Peiris is citing produced both concern and amusement in legal circles both at home and abroad. According to Nihal Jayawickrama the Sri Lankan Supreme Court ruling has been viewed as an example of "judicial waywardness" and "judicial eccentricity" by international jurists. Before someone sees a western conspiracy in this, the late RKW Goonesekera wrote a scathing critique of Silva’s waywardness right here in Sri Lanka.

Nihal Jayawickrama sees neither constitutional impediment nor lack of precedence for the institution of hybrid courts in Sri Lanka. The same points were reportedly made by Prime Minister Wickremasinghe in the course of his telephone diplomacy to secure agreement over the wording of the UNHRC resolution. Perhaps he could have avoided amusing himself in public that those in Geneva were concerned more about "the impartiality of our courts" than the complaints against the military. For the status of our courts, quasi-judicial bodies, and the prosecutorial agencies is a serious matter that the government seems to be doing nothing about other than appointing K. Sripavan as Chief Justice in place of Mohan Peiris. Nihal Jayawickrama, himself a former Permanent Secretary in Justice (1970-77), is quite critical of the rot that has set in the Attorney General’s Department ever since it was "embedded in the Presidential Secretariat" after the war. It is an indication of the level of professional decay in that department that its lawyers had to issue a public statement reminding others about what they are supposed to be doing when everyone knows what in fact they are doing, and not doing. The question is what is the government is going to do about them, and when?

The UNHRC report and resolution on Sri Lanka hinge on the twin facts of serious human rights violations and the incapacity of the legal system and the judiciary to deal with them. Admitting to these facts, as Nihal Jayawickrama argues, is not a sign of weakness or a slur on our sovereignty, but a willingness and commitment to improve our institutions and our performance in respecting the rights of people. If it is alright to invite and entertain outsiders to assist with Sri Lanka’s economy, industries, infrastructure, health and education, why should it be an issue to similarly seek assistance in the field of law enforcement? I am not suggesting to let the robber barons come as they please, but at the least Sri Lanka could stop being schizophrenic in its dealing with the rest of the world. And there are few robber barons left in the newly globalized world and it is no longer difficult to stop and spot them. As for those who see the in the UNHRC a reincarnation of the East India Company of old, they do not deserve a political response but psychiatric help.

My concern is not so much about making convincing arguments against those who are critical of the present government’s approach, as it is about the capacity of the government to deliver on its commitments. In my view, one critical omission in Nihal Jayawickrama’s intervention is that it does not speak to the practical difficulties involved establishing and operating mechanisms for dealing with human rights violations. It is not uncharitable to say that the experiences of countries, where the so called hybrid courts have been established, are more indicative of their delays and operational difficulties than about their successes. Already, the government has shown its lack of will and resources to credibly investigate and prosecute the alleged acts of corruption and abuse of power by members of the previous government. It would be incredible to assume that the government is capable of a wholesale transformation when it comes to prosecuting violations of human rights.

The Political Question

All that the government has going for it now, is that its positions are not being rejected out of hand as betrayal by the majority of the majority. Soon after Mr. Jayawickrama’s intervention on the legal front, as many as 40 Sri Lankan academics, a majority of them belonging to the majority of the majority, issued a comprehensive political statement addressed to government and opposition leaders as well as the UN Human Rights Commissioner, asking the government to learn from the post-conflict experiences of countries like South Africa and Cambodia and implement similar mechanisms in Sri Lanka. In their view, dealing with human rights violations during the war "is the single most meaningful intervention towards the all important and badly needed task of reconciliation." Powerful as far as political sentiments can go, the statement does not go far enough to address the practical difficulties in adopting mechanisms from different countries and different circumstances.

I am not suggesting that the formidable practical difficulties should daunt the government from taking the next steps in fulfilling the commitments it has made to itself and others. But what are the next steps going to be? Even in revolutionary politics, as Colvin R. de Silva once said, the important thing is to know the next step. "Any fool can have a perspective", the Marxist rhetorician scorned. So it is for this government, and its challenge is to show that it knows and it can take the next steps. The obvious next step should include providing redress to the victims in a systematic way. Beyond that, of the four categories of human rights violations that are talked about, namely, war crimes, crimes against humanity, sexual crimes, and crimes against children, why cannot the government start dealing with those who violated the rights of children? They are still around and even enjoyed government perks for a while. Cannot they be dealt with without waiting for experts from abroad?

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