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It is time to cut down the banyan tree

| by Kishali Pinto-Jayawardena
Courtesy: Sunday Times 

( September 7, 2014, Colombo, Sri Lanka Guardian) A common point of agreement across differing views on the role of the Sri Lankan State is that the State (‘authoritarian’ or ‘Sinhala-Buddhist’ as the case may be), would at least perform its basic functions. In the alternative, the drivers of state power would be called to account.

But ironically given erstwhile public expectations, the post-war Sri Lankan State has fundamentally withdrawn from its responsibilities. The institution of the Executive Presidency or an ‘authoritarian Centre,’ has not arrested this trend. Rather, the centralization of power in one individual or (as is the unhappy case now) in one political family, is the root cause of a dangerous imbalance of the Centre itself.

Withdrawal of the State
As a bitingly honest critic of JR Jayawardene, Sri Lanka’s first elected President said decades ago, ‘this Executive Presidency is like a banyan tree; it affords shelter to vast numbers of sycophants but nothing can grow under it.’ This characterization is truer now than at any other time in the past. Paradoxically, at the very point of the greatest concentration in the Office of the Executive Presidency, we witness a centre of power which has become inherently unstable.

To assert this point is not to focus on the beautification of cities or the construction of highways as the misguided among us would prefer. State functions have a far more extensive reach. Nor is this critique meant to apply only to the fact that basic state facilities such as water and electricity are increasingly available only at a cost, which many Sri Lankans find unable to meet. On the other hand, wasteful expenditure of state funds is paramount. But over and above these concerns, the deep failure of the State in the area of public justice and in the handling of foreign relations is becoming very hard to ignore.

No concept of public wrong
For instance, the edifice of our criminal justice system has been built on the concept of a public offence as a wrong against the State. The essential rationale is that the awful weight of state power will be used to punish the offender. It is not a mere private matter which can be solved through expedient settlements and the like.
However, in a practical sense, this thinking has been stripped of all force. The three-fold function of investigation, prosecution and judicial decision making has been seriously compromised. At the very first stage itself, in what police station in the country would a complaint be recorded against an offender if that person is shielded by political patronage? In fact, as was observed last week, police officers who stand up to political pressure, risk life and limb in the process. Reportedly a ranking senior officer who acted against political compulsions in the wake of the communal violence in Sri Lanka’s South-West some months ago is a recent target of the establishment. This is nothing new.

Equally, in what percentage of cases would the decision to indict be taken by the Department of the Attorney General irrespective of political consequences? We see the very converse, where prosecutorial powers are used as an instrument of political repression against those perceived to be enemies of the regime. This is amply evidenced with the ending of the war. Reportedly the Department will soon be housed in a new office. But the commissioning of magnificent buildings with state funds will not address the inherent question of the failure of justice.

Laughable dramas from a retired Chief Justice
Most recently, the hauling of the Chief Justice of Sri Lanka who was impeached and tossed out of office in 2013 before the criminal courts is a good example. These are incidents more worthy of countries that we used to characterize as banana republics. Perhaps we may get accustomed to thinking of Sri Lanka in a similar sense.
Indeed, the less said about the independence of the judiciary, the better. During the past few weeks, laughable dramas were enacted by another retired Chief Justice who seems to be suffering from a perennial deficit of public attention. His appeals to the judges of Sri Lanka’s Supreme Court to refrain from acting in accordance with political dictates is incongruous coming from a figure whose term in office witnessed unprecedented public controversy over the politicization of the apex court.

The other example that illustrates the central theme of the column this week is the disastrous handling of Sri Lanka’s foreign relations through monies doled out to Western based lobbying agencies while a professional diplomatic service is abandoned. The central point is that this merry ‘outsourcing’ of foreign relations has little rhyme or reason except to channel commissions into the pockets of some.

Government’s bluster only confirms its power project
This month, the United Nations Human Rights Committee is due to deliberate on the fifth state party report submitted by Sri Lanka under the periodic reporting procedures of a key treaty, the International Covenant on Civil and Political Rights (ICCPR). This state party report exemplifies our lack of interest or indeed capacity in dealing with key issues regarding state accountability. Next week’s column will critique its several aspects.

Unlike the politically constituted United Nations Human Rights Council before which resolutions on an international inquiry into the end stages of the war in Sri Lanka are pending, the Committee comprised senior jurists. Our reports to these bodies at least should be handled responsibly. And the Government’s bluster does not go to the heart of the security of the nation-state. Its refusal to enact a right to information (RTI) law, for example, indicates this. The millions paid to foreign lobbying firms to redeem the (unredeemable) image of this administration is only a component of the huge wastage of public funds.

As the State withdraws from its essential functions and systems collapse, we can only pay the ultimate price sooner rather than later. This much seems clear now.

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