Dr. Jehan Perera
There are many other changes in the political and legal framework that will infuse a new spirit and atmosphere into the country, such as the draft constitution, the preparation of which is proceeding more rapidly than anticipated. The Steering Committee appointed by the Constitutional Assembly formed out of the whole of Parliament for evolving proposals for a new constitution will be submitting its interim report that will give an outline of its preliminary proposals for constitution-making soon, as early as next month. The promise of the new constitution will be, amongst others, to provide a lasting solution to the issues that embroiled the country in three decades of violence, which led to war, to massive human rights violations on all sides and to war crimes.
With these changes in the offing, and those that have taken place, the Sri Lankan government is unlikely to face opposition or even strong criticism from the international community or from the member countries of the UNHRC when its performance over the past year is appraised by the UN High Commissioner for Human Rights Zaid Al Hussein during the present session of the UNHRC. The main issue on which it may be questioned is whether it is fully implementing the resolution of October 2015 that it co-sponsored. The government has yet to deliver on many commitments, including repeal of the Prevention of Terrorism Act, restoration to people of land taken over by the military, the significant reduction of military presence in the North and East and, most controversially within the country and internationally, the issue of the nature of involvement of foreign judges and legal personnel in a Sri Lankan judicial mechanism.
In a speech delivered at the Norwegian Institute for International Affairs in Oslo, Sri Lanka’s Foreign Minister Mangala Samaraweera responded to international critics of the government who accuse it of bad faith and going too slow in implementing the promises it made at the UNHRC in October 2015. His message was that the government was doing what was in the country’s national interest, and not to impress the international community. He quoted from President Maithripala Sirisena’s Independence Day speech this year to bolster this point. The President had said, “It is now time for us to seize the current opportunity that is before us to implement the provisions of the UNHRC resolution, not because of international pressure, but because as a nation we must implement these provisions for the sake of restoring the dignity of our nation, our people and our military…”
Minister Samaraweera also addressed the controversial issue of international participation in the post-war transitional justice process. There is virtual unanimity amongst the Tamil people that the Sri Lankan legal system will not be able to deliver justice on the issues of war-time violations of human rights and war crimes. They see the Sri Lankan legal system as being dominated by the majority ethnic community as indeed all state institutions in the country currently are, and therefore that they will not deliver justice to the Tamil people. Minister Samaraweera acknowledged the importance of ensuring justice to the victims through a process of consensus. He said “the final architecture of the courts we are hoping to set up will be in discussion. Especially with parties like the TNA or other groups that represent the victims.”
However, the Foreign Minister also made it clear that it was the Sri Lankan government that would decide what should be done in regard to reform and to resolving its problems. It is the government that has to take the political decisions as to what should be given priority to, and what it can do, given the need to take the population along with it. The departure of UK from the EU is an important reminder that it is necessary for a government to be able to take the people along with it and to be pragmatic when it comes to the people deciding. In the UK the political establishment, the elites, the intellectuals and also the international community were solidly in support of the UK remaining within the EU. But still the vote to remain in the UK was lost. Similarly, in the case of Sri Lanka, it would be futile if the government were to seek to satisfy the international community, but find themselves rejected by the people.
After the present session of the UNHRC, the government will have time till March 2017 to demonstrate to the international community what it has achieved. During this period Sri Lanka will be making its tryst with destiny. During this period the transitional justice mechanism will be put in place and the new constitution will be put before the people. The challenge for the government will be to take the people along with it in the course of this reform process, especially where it concerns inter-ethnic relations. As Foreign Minister Samaraweera said of the lost opportunities of the past, “we had all the opportunities, we had all the reasons to succeed but because we could not come to terms with our own diversity as a nation, what could have been easily solved at the early stages then became a bitter war and as a result Sri Lanka today has to I believe recommence that journey all over again…”
The gulf between the communities still remains wide. This is reflected in the repeated demands by the Northern Provincial Council for a federal solution in which there will be the merger of the Northern and Eastern provinces. Both of these demands, which are long standing ones from the Tamil polity, have little or no support from the rest of the Sri Lankan polity. Most people in the country who do not know what federalism is nevertheless believe that it is the equivalent of a separate state or will soon lead to it. Similarly with regard to the full implementation of the 13th Amendment to the constitution, which the government is legally obliged to do, there is no agreement on the devolution of land and police powers, with the communities taking opposing positions on these issues.
The convincing majorities with which the government has been able to ward off challenges to itself, such as the no-confidence motion against Finance Minister Ravi Karunanayake which the government prevailed by a big majority of 145 votes to 51, and the unanimous passage of the Right to Information bill in Parliament does not necessarily reflect the strength of the government and its allies in terms of public popularity. People are disappointed with the government for a number of reasons, ranging from failure to demilitarize, release land and find missing people in the North and East, and to the rise in the cost of living due to unpopular taxes and shortage of job opportunities that affect all parts of the country. These discontents could lead to popular rejection of enlightened top-down government initiatives of transitional justice and constitutional change as in the case of the Brexit referendum where nationalistic parochialism triumphed over universal values. This suggests that the government will be looking to give priority to domestic politics over international expectations in implementing the UNHRC resolution. It also needs to build support among the people for the coming political changes so that the values of a “multi-ethnic, multi-religious, multi-lingual, multi-cultural nation” as described by Foreign Minister Samaraweera in his Oslo speech, prevail over nationalist parochialism.