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Acknowledging Our 'Politically Precarious' Plight

| by Kishali Pinto-Jayawardena

( September 15, 2014, Colombo, Sri Lanka Guardian) The 'Focus on Rights' column on the Uva provincial polls being more of a battlefield than an election (Sunday Times, August 31st 2014) has been responded to by former Inspector General of Police, Frank de Silva in a manner that raises several interesting issues. A central point in this response is the unequivocal acknowledgement that police officers on duty in 'politically precarious situations' are themselves appointed by and function under the administrative authority and control of a political appointee, the Secretary, Defence.

A catastrophically negative impact

As he observes 'the failure of police is in respect of action or inaction in the face of violence which itself operates under a form of political direction. This is not an explanation for failure. It is a fact.' And the concern stressed by him regarding the 'political direction' of the police is precisely what has rendered the law enforcement function to be of such catastrophically negative impact. This is central to the issue.

The other point raised by Mr de Silva, regarding the manner and systems of elections which encourage the intensification of election violence is also valid. He concludes with the observation that an independent National Police Commission (NPC) should serve as a monitoring body and opines that its attempts to 'completely distance the politician from the police' were short sighted.

This is of course an arguable point of view. It may well be contended that though such a complete distancing is impractical in the current unhappy plight that we find ourselves in, the distancing of the politician from the police officer is exactly what we must strive for. An independent commission on the police which is confined to monitoring the functioning of the police, (as opposed to exercising supervisory control over disciplining errant officers), will certainly be limited in its reach.

Paramount failures to be acknowledged

Regardless, the overall fact remains that these matters should be in the forefront of public discussions. While ordinary citizens have been suffering the brunt of this failure for decades, we are now in a situation where ranking senior police officers find themselves unable to carry out their functions with a modicum of dignity. This is a good estimate of how grave the situation has become. Addressing this failure is paramount.

But this is a reality that is often conveniently ignored. Sri Lanka's fifth state party report submitted under the periodic reporting procedures of a key treaty, the International Covenant on Civil and Political Rights (ICCPR) will be deliberated on this month by the United Nations Human Rights Committee. The Committee is comprised of independent experts, many of them senior international jurists. It must be distinguished from the United Nations Human Rights Council before which resolutions mandating an investigation into alleged war crimes in Sri Lanka are being implemented by the Office of the High Commissioner for Human Rights (OHCHR).

Sri Lanka had voluntarily undertaken to submit state party reports to the Committee under a wise decision taken decades ago when this country's foreign policy was not run by bumbling egomaniacs whose only preoccupation appears to be to lie, lie and lie again. Earlier, state party responses to questions raised by the Committee were well reasoned and thought-out. Now we have only monumentally clumsy excuses.

For example, the state party report focuses on the proposed witness protection law as a key component. But the issuing of platitudes and indeed, a law enacted for this purpose in Parliament will be of little use. What is the point of having a protection unit established under this law, (as presently contemplated), if the police officers who constitute this unit are subjected to 'political direction' in the carrying out of their tasks? Who will have faith in such a body?

Precedents which are no longer applicable

In other respects, this state party report is amusingly replete with references of what previous Governments have accomplished, such as the repeal of criminal defamation. It even quotes achievements of private actors including the establishment of the Press Complaints Commission of Sri Lanka (PCCSL) by the media industry.

Quite blatantly meanwhile, it emphasizes the proactive role played by the Sri Lankan Supreme Court. But the precedents that it cites are more than two decades ago, handed down mainly during the term of retired Chief Justice GPS de Silva, (the last of the Sri Lankan Chief Justices to serve his term with integrity and commendable reticence), by judges of the impeccable caliber of the late Justices Mark Fernando and ARB Amerasinghe. The impact of these judgments are now long gone. Do government representatives really believe that the Committee is unaware of these developments?
Hard hitting questions asked by the Committee

In fact, this report makes a great point about the independence of the judiciary. It states (as at October 2012) that no judge of the superior courts has ever been impeached by Parliament' at paragraph 314 of the report. On this same reasoning therefore, the 2013 witch-hunt impeachment of Sri Lanka's 43rd Chief Justice is the best rebuttal that one can advance.

The Committee itself is obviously not blind to this reality. The List of Issues that it has advanced to the Government to answer a few months ago in preparation for the September sessions makes this abundantly clear. For example, the 2013 impeachment process is specifically raised and the Government is asked to respond to concerns raised regarding attacks and intimidation of judicial officers. A similar stand is evidenced by the Committee in regard to the implementation of the recommendations of the Lessons Learnt and Reconciliation Commission (LLRC).

Overall, Sri Lanka's insistence on the separation of powers in the constitutional structure in the report is fundamentally contradicted by the overriding power vested in the Executive Presidency. Here again, the List of Issues by the Committee specifically questions the Government regarding the18th Amendment's decimation of the 17th Amendment's Constitutional Council. No doubt, the Government will answer in its usual blustering manner.
Again, this can only be to Sri Lanka's detriment.

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