Wednesday, July 19, 2017

A chronically chaotic government and its far worse foes

Sunday, July 16, 2017
The Sunday Times Sri LankaWhen disreputable elements engage in fear-mongering, one can only react with disdain. That said, this is a time where the line between the reputable and the disreputable runs very thin on the ground. Therefore it may be conceded that these are distinctions veritably without a difference.
Sensible rationale not reflected

Nonetheless, it is hard to remain quiet when former Minister of External Affairs and surely one of our most eagerly ambitious politicians, GL Peiris expounds with great gusto on the ill-wisdom of the Enforced Disappearances Bill. Listed for debate this week, the Bill was postponed by a wavering Government caught between the rock of its own swashbuckling commitments and the hard place of ultra-nationalistic sentiment before which it now wails, much like a petulant child.
This predicament is, of course, due in large part to its own failure in not engaging in a national effort to soberly explain to the people in this country why this legislation is needed in the first place. Enforced disappearances do not have sole application to the North or to citizens of Tamil ethnicity. On the contrary, the South was the primary target of this tactic of state terror in the eighties. The Sinhala South therefore does not need to be taught as to why such a law is needed or why the State must legislate to ensure accountability to prevent future occurrences.
But this sensible rationale is overridden by sound and fury signifying precisely nothing. On the one hand, the draft law is advocated as a palliative for the people of the North. On the other hand, we have politicians of the ilk of GL Peris explaining that it will prosecute the Southern ‘patriots.’ The contesting dynamic is firmly entrenched.
Wringing of hands to be expected

This bifurcation between the North and the South is unwise in the extreme. It is akin to claiming that Sri Lanka’s Right to Information (RTI) law is meant for the South and has little application to the North, as idiotically put forward by some politicians representing the Northern constituency a while ago.This has, of course,been disproved by the practical use of the law since it came into force.
Regardless, the effort to enact a law on Enforced Disappearances for Sri Lanka should have been led by a local multi-ethnic and multi-religious constituency. Instead the perception was more that it was a Colombo led effort with external donor-funded support. At each and every turn, this is what destabilizes each effort to genuinely improve the lot of citizens.
It is the same bogey that has clung to the constitutional reform process. Inevitably nationalistic demons raise their heads and rail while the majority of ordinary Sri Lankans remained uninterested or uninvolved. So the procrastination midst the wringing of hands that we see on the postponement of the Enforced Disappearances Bill is entirely to be expected.
Engaging in reprehensible objections

But let us revert to the interview in the Daily Mirror a few days ago where the erstwhile law professor, from whom many once learnt the law with the intent to honour the ideals of justice, expounded on the ill-wisdom of the Bill.To someone unacquainted with the disagreeable hypocrisy of our politicians, it would seem that the Bill posed untold risks to Sri Lanka and exposed the country to the wrath of insidious influences hell-bent on tarnishing its name.
The truth, of course, is far less dramatic. Certainly there is neither the time nor the inclination to refute all the reprehensible objections in this interview.Suffice it to be said that the Bill comes as a response of sustained advocacy against a most heinous crime of this century. The tactic of enforced disappearances had been used as a deliberate mechanism to frighten and intimidate dissenters, political activists, journalists and ordinary citizens by all Governments for decades. The need for such legislation is without a doubt.
However, one aspect in particular in this interview merits a response, given its singularly disingenuousreasoning. This is in regard to the doctrine of command responsibility in the Bill. This is responded to with horror by the former Minister, calling the clause ‘incredibly wide.’
Concept no stranger to our law

This is, of course, a palpable misrepresentation. A core element of this offence is that a commander must unlawfully disregard and fail to discharge duties to control the acts of subordinates by permitting them to commit war crimes. This thinking is not unfamiliar to our law.
Indeed, constitutional jurisprudence by enlightened judges in the mid nineteen nineties held superior officers responsible on the basis of vicarious liability when they failed to act as subordinates committed torture of detainees. Sri Lanka’s Convention Against Torture (CAT) Act in force for more than a decade embodies this very rationale.
True, in situations of conflict, the judicial response has been more tempered in holding those in command responsible. Even so, judges have used the crime of omission, historically very much a part of our penal law, to hold superior officers accountable during the second southern insurrection, for instance. Judicial opinion may be divided on the issue but to react with such feigned horror to the very idea is absurd.
Not even the minimum is possible

From one perspective, the scenario unfolding before us is ironic. In bringing such laws before Parliament, probably the intention was to placate those calling for law reform with the consolation that nothing much would happen anyway. After all, the CAT Act has utterly failed to deter torture despite being one of our better drafted laws. The perennial failure of justice is not because of the inadequacy of law but because of politicised investigations and prosecutions. Which,as must be said, this Government has done nothing to address,
But due to its chronically chaotic character, it appears that the Government has been checkmated even in this minimum effort by the so-called joint opposition now smelling blood in the water and baying for its revenge.

For that, it has only itself and its equally ill-advised allies to blame.