Continuing impunity highlights need for checks and balances


By Jehan Perera 

Government Spokesperson Media Minister Keheliya Rambukwella recently announced that the government plans to remove Emergency laws by the end of this year. For most of the past four decades, the country has been ruled under Emergency laws, which give the security forces extraordinary powers over citizens and put them in a position of vulnerability in any interaction. The concession being made to democracy may be due to international pressure that continues to mount on the government on account of its shortcomings in meeting international standards of human rights. 

 Last year, the European Union denied Sri Lanka the GSP Plus tariff concession made available to a limited number of developing countries on this ground. Western countries in particular have been calling on the Sri Lankan government to completely remove the Emergency laws especially since the war ended more than two years ago. At that time the government relaxed some of the Emergency laws which had given the security forces wide powers to arrest and detain people without any charges. This move coincided with the decision making process in the EU regarding the trade concessions to Sri Lanka. 

 Some government ministers went to the extent of saying that over 75 percent of the Emergency laws had been repealed, but this was probably to impress the international community more than the people in Sri Lanka who did not realize the difference. The government spokespersons recent statement about a complete withdrawal of the Emergency regulations may reflect a tacit government admission of this reality. The Emergency regulations have been used by successive governments since 1971 to curb unrest.  But, the present government has even continued to use Emergency laws during election periods, which previous governments shied away from. 

 Unfortunately, the Emergency laws are not the only weapon in the government’s arsenal of repressive laws.  The Prevention of Terrorism Act continues to remain in the law books, and despite the comprehensive defeat of terrorism in the country, there has been no action or even talk about repealing that draconian law. Despite this elephant in the room, it is to be hoped that the end of Emergency law promised by the government spokesperson could open up a new chapter in Sri Lanka’s governance. Indeed, following the repeal of the Emergency laws there will be a need to provide the security forces with special training to re-educate them on their proper role in a peace time democracy.

Continuing impunity

The question is how seriously the government takes the promise that its spokesperson has made.  When the government announced that it was relaxing Emergency laws last year, the EU decision on whether or not to grant the GSP Plus tariff concession was still to be taken. The relaxation of the Emergency laws was seen to be in response to that pressure.  But there was hardly any change visible on the ground. The situation of uncertainty with respect to the government’s handling of any opposition to it has continued unabated. The way in which the trade union action at the Free Trade Zone was suppressed a few weeks ago by police firing live bullets at the workers who were protesting was unacceptable. At present the government is under pressure due to the issue of war crimes allegations and the unrelenting exposure being given by UK Channel 4 television to horrific scenes that purport to be from the last days of the war. It is also ironic that the government announcement of a possible end to the Emergency laws was followed a few days later by the brutal attack on a senior journalist in Jaffna.

 The news editor of the Uthayan newspaper, Gnanasundaram Kuganathan, is now in a critical condition in the intensive care unit of Jaffna Hospital with head injuries due to blows from iron bars. The victim had previously been targeted by assailants who stormed the Uthayan office in May 2006, asked for him by name and, having failed to find him, killed two other staff members. Only recently had he started residing outside of the Uthayan office, believing that the security climate in Jaffna had improved and impunity no longer reigned so that he could live a relatively normal life. But he was mistaken, and the attack on him will remind all journalists of what their fate could be if they cross an unknown line and overly anger those in positions of power.

 Once again the attack on a journalist, in which the assailants have escaped, has taken place in close proximity to a military sentry point on a main road in Jaffna which has a very heavy presence of military personnel. This is reminiscent of the slaying of The Sunday Leader editor Lasantha Wickrematunge on a main road in Colombo near a military checkpoint in 2009 and of the arson attack on Lanka E News in 2010.  The failure of the law enforcement authorities to apprehend the assailants is an indictment of the regime of law enforcement armed with Emergency powers but still fails to protect citizens, especially media persons and those critical of the government. 

 What is particularly deplorable about these several attacks on journalists is the impunity with which they are carried out. A code of silence, a facade of investigations and a failure to prosecute suspects are the main characteristics of this impunity. None of the killings or attacks on media institutions have been solved. This has led to a climate of fear and self-censorship within journalists and also the larger society. This is not democracy where fundamental freedoms guaranteed by the Constitution are protected by the Government of the day.  It is therefore incumbent on the government to take immediate and convincing steps to protect the media in order to safeguard the democratic rights of the people.

Necessary action 

Having Emergency laws and even the Prevention of Terrorism Act will not, by themselves, prevent lawless acts from taking place. What is necessary is for the police and security forces to do their jobs properly and not be hamstrung as a result of political interference. If the government wishes to convince the international community, and Opposition parties within the country, to stop being critical of it on account of failures in human rights protection and good governance, it will need to improve the system of checks and balances and institutional integrity.  Institutions that are without integrity cannot do their duty. 

The failure of the law enforcement authorities when journalists are attacked is evidence of governmental failure. The mere repeal of Emergency laws but without improving the independence and integrity of the law enforcement agencies will not lead to the positive changes that the international community and human rights watchdogs expect from the government.  Such half hearted actions will not do the government much good in terms of projecting itself as one that practices the principles of good governance. There is however a more sincere option for the government to pursue, but this will require the government to engage in power sharing with the Opposition, which is something it has shown itself loath to do up to now.

 The 17th Amendment of 2001 had vested the power of appointment of positions in the state apparatus that ensure good governance in a cross party Constitutional Council in a bid to ensure a system of checks and balances. However, this commendable constitutional legislation was negated by the 18th Amendment of 2010. This has handed over to the President the power to appoint Chief Justice, the chairpersons of the Election Commission, Public Service Commission, National Police Commission, among others.  It further concentrated power in the executive presidency.  If it hopes to convince the world that it is serious about charting a new path to good governance, the government needs to reconsider its nullification of the 17th Amendment to the constitution by the 18th Amendment.    

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