Published in The Ground Views by Dr. Radhika Coomaraswamy ::
A talk given at ICES, 17th December 2014. Photo courtesy Al Jazeera.
I want to thank Mario and the family of ICES for asking me to make this presentation on what should be the priorities for the next president. There are of course many issues but I will present what I think are the most important aspects.
To begin with, one has the debate which we have had since independence, that which we see now emerging as well. There is one school of thought that focuses on the economy and stability that is often called the J.R mantra. They feel continuity and stability are intertwined and needed for economic growth. There has always been another school of thought that seeks to reform political institutions, democracy and rule of law as being essential foundations on which all else is built. Marxists always believed in what they termed was the base vs. super structure dichotomy and it was their belief that the mode of production and the economy determined everything else. For liberals the main focus has been on political institutions and it was felt that the free market would take care of the economy.
The debate still rages even within my own family. My brother Indrajit Coomaraswamy always quotes Bill Clinton to me, “It is the economy stupid”. Well the Pathfinder organization with which he works has presented a road map with economic priorities. There are some doubtful neo-liberal recommendations but all in all, there are good recommendations and maybe I should make a plug for my brother and their roadmap in this era of nepotism.
However, for me at this particular juncture of our history, reforming politics, political institutions and rule of law institutions are absolutely crucial along with a change in our political culture. Without these reforms we are doomed and the economy is also doomed. After all investors will only invest if they feel politically secure.
Decay in our political institutions began long time ago. The era of the 1972 constitution began the process of politicization. The 1978 era introduced systematic thuggery into our political fabric. Both contributed to the decline in our rule of law institutions. But today there is no doubt in anybody’s mind that we have reached a real peak in the decay of our political and legal institutions.
To remedy the situation we need to relook at our political and legal institutions and take measures to reform our political culture.
My advice therefore to the next president is to immediately set up a Constitutional Commission like in South Africa with someone like Professor Christy Weeramantry as its chairperson, someone whose integrity cannot be questioned. The election promises of the opposition if it comes to power with regard to the executive presidency and the seventeenth amendment along with a national unity government can be implemented immediately but the Commission should be relied on to make the recommendations for the rest of the Constitution. The process should be given a year or two as this Commission should consult all groups, travel everywhere, and come up with a consensus document where everyone in the country feels they have ownership. What we lack in Sri Lanka is a constitution that is truly a social contract. We have had constitutions usually imposed by political parties in power, 1972 by SLPF and 1977 by the UNP. It is time we have something that is not imposed either by colonial masters or our politicians. Despite all the upheavals in India, South Africa and now in Tunisia, no group challenges their Constitutions because they were drafted after a national democratic process.
In this process of Constitution making we can address many of the current issues,
- Whether to abolish or modify the executive presidency. I think after what we have experienced with the presidency for the last 20 years, all of us in this room would want to reduce its power and allow parliament to be supreme. But there is one area where there is concern. This is in a situation of crisis with regard to national security- we don’t want a stalemate in parliament to deter effective action. In this regard this power should vest in the President but there must be a requirement that he/she go to Parliament for approval after a period of three weeks or so to ensure that this power is not used to rule indefinitely.
- Secondly, we need a strong parliament, not just a talking shop. Select committees are used today to harass people, whether its NGOs or chief justices. Instead what we really need is a technically competent Parliament that has broad based consultations and hearings and gathers evidence to create effective legislations. The technical development and the training of parliamentarians should be a major priority
- Thirdly we must have a strong and independent judiciary as well as Commissions- the Human Rights Commission, the Public Service Commission, the Police Commission and a Corruption Commission. Most of all we must bring back the 17th I feel like I have a personal stake in this 17th amendment. It was the Youth Commission which I was a part of – along with Professor G.L. Pieries- that put forward the idea, first mooted by the late Chanaka Amaratunga, of having something like a Nominations Commission that will appoint judges and independent commissioners. I remember we recommended that all the parties in parliament would agree on the composition of this Nominations Commission. I remember the first Nominations Commission when I was appointed the Human Rights Chairperson; it was H.L De Silva who chaired that commission. Of course, there were no women on that Commission, they were all grey suited men but still it was a very powerful commission of people acceptable to all parties in parliament. They then appointed all the members of the independent Commissions and members of the Judiciary. The choice was expected to be on merit alone. There is absolutely no doubt that this had a very important impact. If you look back at the Police Commission of that period, there was no violence during elections because the police did not have the fear of being transferred or punished. They just did their job.
- As I said above, to me it is absolutely imperative to have a strong, impartial judiciary that has legitimacy in the eyes of the public; By the way, in our present constitution like the 1972 Constitution, judicial power is exercised by parliament through the courts. We have to go to a system where judicial power is exercised by the courts and not through the parliament. They did this in 1970s etc because they were afraid that vested interests would prevent rapid development by using the judiciary. I don’t think we are in a situation like that now. Because there was no strong independent judiciary we have no real strong human rights litigation in this country. There was a period during the time of Justice Mark Fernando and Justice A.R.B Amerasinghe when we did have some interesting litigation in the field of detention and arrest, as well as the environment- some very fabulous world class judgments by both of them. Except for that short period, and a few other cases, the whole tradition which India has had of litigation on the right to life and dignity and which South Africa has, we have not experienced.
- With regard to the North and East if you go through this kind of South African process, we can also deal with the issues of the North and the east within this framework so it does not become highlighted, separated and tense. We would even have parties like the TNA and the JVP participating in this process and speaking to each other as well as the public. I know there is a lot of discussion out there about what is unitary- a red flag to the Tamil parties, and what is federal – a red flag to the Sinhalese- when all of us lawyers know that we do not have to use any word, and that this is just the spectrum. You can really structure an arrangement that satisfies Tamil aspirations of autonomous self-government in their areas while meeting the security fears of the Sinhalese. It is possible- all that stops us are fears, prejudices and bottom line thinking. I was someone who worked closely with Dr.Neelan Tiruchelvam, I know that it can be done; it can be structured if we keep our minds open.
We also have to deal with the issues of end of war. We have to have a credible truth and reconciliation process acceptable to all parties that leads to justice and reparations. There is no going back on that and it is the only way to meet our international obligations and to get rid of the international spotlight.
Back to the constitution for one moment- for the women rights activists, we are the only country in South Asia without a 30% quota for women in the parliament or the local government- that is something that just has to be done. The amount of women in our elected bodies is a true embarrassment given the international experience and the fact that we have such a highly educated woman population. In Sri Lanka we also have the personal laws of the different communities that define women’s private lives. We have been pushing for what we would call a first step, an opt out provision. Couples on the wedding day to be allowed to choose whether to be governed by the personal loans or the general laws with regard to family and property law.
CHANGING POLITICAL CULTURE
Besides the above changes to our Constitution, we have to realize that a lot of our tragedy is not is structures but in the culture that has developed with rapid globalization and thirty years of civil war. For example the statement by minister S.B Dissanayake, the Minister of Higher Education on Chandrika Kumaratunge is so outrageous that we don’t have to go beyond that to say too much about the state of our public culture.
We have to change the public culture around the rule of law. We have a police who have got used to strong-arm tactics regardless of the circumstances. I was the chairperson of the Human Rights Commission when there was a ceasefire in the North and the East, when there was no terrorism, and yet everyday people who stole bananas, or took drugs were regularly beaten. So I started a zero tolerance on torture campaign and I was really amused when the Sri Lankan government submissions to the Human Rights Council in 2014, nearly ten years after I left, said that they said that they have a zero tolerance strategy. But recently many human rights groups have chronicled hideous kinds of torture against men and women even after the war is over. I don’t know whether this is true or not, even if one of these cases is true, there is really horrific stuff going on. The U.S Senate report shows that we are not the only country with this problem but that report which is very introspective and frankly looks into the abuses, clearly shows that torture is not only illegal or immoral but it just does not work, it makes people make up stories and in the long term may actually be counterproductive.
We also have to stop the culture of extra judicial killings. When I was the chair of the Human Rights Commission, suddenly all these organized crime individuals kept being killed. I asked the IGP of that time why this was so- he told me they were trying to escape. I asked him why they always escape and then seem to run to the cemetery. We actually set up a judge to look into these cases and the killing did stop. But it started up again after 2007. It is not only Sri Lanka-. India, South East Asia and Bangladesh all have had episodes of this, a new way of fighting organized crime- to have para militaries brought in. But they have to be stopped for as Sri Lanka has shown it is a slippery slope. Initially paramilitaries are used against organized crime but if there is no tight oversight they can be ordered to move against ordinary prisoners, dissenters, journalists, and then anyone who criticizes the state. Once the state and individuals learn to kill with impunity and without accountability, lawlessness spreads rapidly.
When we speak of the rule of law we also have to look at the quality of our judges. The last judgment of the Supreme Court on the calling of Presidential Elections was absolutely extraordinary. It takes the most progressive ideas of civil liberties from people like Ronald Dworkin to justify the most anti-democratic practice. The judgment is truly shocking and perverse for anyone remotely familiar with constitutional law.
We really have to stop this culture of impunity and killing and replace it with a culture of dialogue. In the Northeast, Prabhakaran introduced the culture of killing over dialogue- we all know where that went. In the South I feel in the last few years, we have entered a similar period. Both have resulted in a very servile, fearful population. I must say in the North because there is an ethnic dimension it has begun to resemble a situation of occupation. The government can build a hundred roads but people do not like occupation. People want respect, dignity and empathy.
The worst thing we have heard is that the present Jaffna army commander has gone to Jaffna after two years of training in Israel. In the last two years I have visited Jaffna and I have been to the West Bank and Gaza. Certain aspects of Jaffna life do resemble Israeli Occupation. Every other person is said to be an informer and everybody suspects everybody else of being an informer and that’s an Israeli practice. The army visits all the NGOs and independent organizations at least once a month, checks their staff lists and salaries. They are also present everywhere in civvies. You can’t have a party with over 25 people without them wanting to be there. This is just what I the UPDF does in the West Bank. If anyone wants to know how disastrous this policy is, see what happened in Gaza. People should see this film where 5 previous heads of Mossad were interviewed about the past and about the present situation. Each of them said that the present policy of the Israeli government is absolutely self-destructive in dealing with the Palestinian issue. So why have we decided to take this advice to deal with the North and East?
The other side, TNA has also contributed to a culture of violence and impunity. They never condemned the atrocities of the LTTE even if it was directed at one of their own. There still remain a set of self-destructive hardliners within the TNA and diaspora. Strangely since the 1960s the Tamil political party motto has been “boycott:” Even before they read a document, they were ready to boycott it. This type of political action is very out of date, even Cuba has moved on. Today’s mature political leaders constructively engage and realize that nothing is given on a platter. You have to work tirelessly to convince people. The Federal party or the TNA only spoke to leaders of the UNP and SLPF, they never reached out to the Sinhalese people not realizing that only the latter could put adequate pressure on their parties to change their stance or be less fearful of a Sinhala response. Therefore my New Year post election wish for the TNA is to suggest that they visit the Mahanayakes a first step and after that Sinhalese civil society groups and community groups. I really think it’s time they reach out to the Sinhalese public.
Another major necessity of the future is SSR, UN jargon called Security Sector Reform. To me this is the most important thing for any future president. I have visited Pakistan, Egypt, Indonesia and Philippines- empowered armies are a disaster for democracy, social inclusion and participation. The army doing economic activities in those countries I have mentioned makes them have vested interests in political and economic policies. They also develop a thirst for economic resources as they have done in the North and the East. Further, they provide unequal competition for the private sector because they have suppressed wages. With regards to the army doing civilian work, even the army rank and file do not like it. I spoke to some security sector personnel in Victoria Park and they hate it. Besides this type of activity disempowers the civilian administration and again lowers the wages of the civilian population. So SSR reform is a must. The economic initiatives of the army must be sold to the private sector or spun off. There must also be a strong and comprehensive demobilization program for army personnel- perhaps spread over four years. There are examples from all over the world where security sector personnel receive training and education and are sent into civilian life as graduates and entrepreneurs. The Kotelawala Defence Academy that seems to get more and more resources and departments can be the center for this DDR process.
There is this idea that is constantly mooted by the government that we need a strong army to deal with LTTE threat. I agree with Sumanthiran who recently said in Jaffna that the violent era is over, it will never gain traction in the North and the threat is just hype by the government. What is happening though is that elements of the Diaspora and LTTE hard liners are now trying to force Sri Lanka to have a Scottish style referendum. So any future LTTE attack will not be military it will be political. It is completely counterproductive to have Israeli type tactics in the North. You have to politically win the hearts and the minds of the people in the North so that if there is ever a referendum, like Scotland, they will vote to stay in the Union. Remember that a referendum is something that the international community may support if things get really bad. I think we really have to take stock of what is going on in the North and the East and stop treating the Tamil population as a “permanently hostile” community that needs occupation.
So finally let me say that this is a definitive election. It is not about individuals who cross over, or political gossip. It is about systems, structures and visions for the future of a modern Sri Lanka. In Sri Lanka of course the Arab Spring is discredited because of Egypt and everything is of course seen as a CIA plot. But if you look at Tunisia where the Arab Spring actually began it has been a success. The Islamic Brotherhood, led by mature leaders, actually gave up power to the President to guide the writing of a new Constitution-the result is a fabulous state of the art constitution that everyone agreed to. Tunisia had free and fair nonviolent elections after that and though there are problems, it has become a vibrant, exciting creative place where nobody is afraid. The economy too is booming.
I will end this intervention with a story. A friend of mine was visiting one of Sri Lanka’s leading film directors last week. She was sitting there when this film director’s daughter called from abroad and pleaded with him not to get involved in politics saying that she was so very afraid for him. My friend heard the director reply, “Duwa don’t you understand, that is what I’m fighting for- I am fighting to remove your fear. “