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A couple of years back one of the more thoughtful of our career Foreign Ministry officials tried to put together a book on Sri Lanka’s international relations. This was an excellent idea in a context in which we do not reflect or conceptualize when dealing with other countries.

However it turned out that hardly any Foreign Ministry officials were willing or able to write for such a volume. Still, with much input from academics, the manuscript was finalized. But then the Minister decided that it needed to be rechecked, and handed it over to his underlings at the Kadirgamar Institute of International Relations and Strategic Studies, where it has lain forgotten since.

Recently I retrieved from my archives the two pieces I was asked to write, and am republishing them here –

 

Sri Lanka needs to be aware of both facts and principles in dealing with Post Conflict Reconstruction. The facts are simple, and we must recognize that the world at large is aware of them. First, we need aid and assistance for reconstruction. Second, that assistance will be more readily forthcoming if we make significant progress towards reconciliation. Third, reconciliation will be judged in terms not only of what government says, but also the responses of the Tamil community.

These three facts are I think readily recognized by government, and there is no essential difficulty about working in accordance with them. There is however a fourth fact that we need to bear in mind, which is that some elements in the international community believe that the attitude of the diaspora is the most significant element in assessing Tamil responses. This is potentially an upsetting factor, and we have to make sure we deal with it convincingly. Similar to this is a fifth factor, that assessments made in Colombo are often used by salient elements in the international community to judge what is happening with regard to reconciliation and the responses to this of the Tamil community at large. Again, this is a factor that government must take into account.

In one sense this should not be too difficult. A similar situation obtained even with regard to the conflict. We needed assistance to deal with the threat of terror, and in obtaining this we had to make it quite clear that we looked to a military solution only for military matters, ie the secessionist military activities of the LTTE. The solution to the problems of the Tamil community had to be found through negotiation as well as sympathetic understanding. We were also able to show that the Tamil community in the affected areas was not indissolubly tied to the Tigers, inasmuch as once liberated they participated actively in elections in the East, and they took the opportunity in the North (as they had done in the East, in a military campaign that saw no civilian casualties except in a single incident which the LTTE precipitated) to escape from the LTTE as soon as we were able to provide such an opportunity. The simple fact that many of the younger cadres disobeyed orders about firing on civilians, and came over willingly, makes clear the positive response of the affected Tamils.

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Though obviously the issue of the Chief Justice’s impeachment will reverberate internationally, but it will be very sad if it is used to attack Sri Lanka in relation to very different matters. I was disappointed then that the American delegation declared that this recent development is a reason for the resolution it proposes to bring in Geneva.

There are in fact three very different issues involved.  The first, and longest standing, is allegations of War Crimes, which are excessive and hypocritical. The problem is that these allegations arise from two different motivations. Neither of these relate to whether or not there were War Crimes, since the leading advocates of the charges have never cared about War Crimes perpetrated by their own favourites.

This does not mean that all those shouting about War Crimes are hypocritical and with their own agendas. There are many idealists who get carried away by emotion, and that is why we need to deal with the issue systematically, and on the basis of evidence. The blanket denials that we sometimes hear do no service to anyone. I continue astonished that we have not dealt clearly with the numbers that are flung around, using statistics we possess that almost entirely support our case. But with a dysfunctional Foreign Ministry, and no coherent policy about information dissemination, we will continue to suffer – or rather the armed forces which did so much will suffer, while those reaping the fruits of their efforts will continue to swan around ineffectively, but joyfully. Read the rest of this entry »

I have noted previously that I think the 18th amendment is a vast improvement on the 17th. Interestingly, when I first began explaining my views on the 17th amendment, there was little comprehension amongst Sri Lankans about my fundamental objection, that it was inappropriate for an elected Head of Government who was also head of State to simply rubber stamp appointments recommended by another body, let alone a nominated one.

This was understood immediately however by the Canadian Senator who visited us in I think 2007 on behalf of the IPU. I suppose it could be argued that attention to process and constitutional consistency is unnecessary, and whatever works is acceptable, but I fear that such an approach leads to problems – as with our confusion of an Executive Presidency with a Westminster style Cabinet – and it is tragic that we continue to suffer the consequences without understanding the reasons.

I should add though that the 18th amendment has its flaws, just as the Local Government Elections Bill had. In both cases however there was such an improvement on what we had had before, that I did not think we should have allowed the perfect to be the enemy of the good.

What I did not anticipate was the sheer contempt with which the opposition would treat the Constitution as amended. I suppose this is not surprising from a party that voted so consistently to subvert the Constitution it had introduced, through the first and second and abortive third amendments, but it is surprising that no one has drawn attention to the irresponsibility with which the UNP has treated the provisions that provide some sort of check on the absolute power of the President to make appointments to important positions. Read the rest of this entry »

In the whole sorry impeachment saga, the UNP seems to have done the impossible and managed to keep everyone happy. Though some other opposition parties are making valiant attempts to criticize them, since the criticisms are not based on clear arguments, similar generalities on the part of UNP officials will allow them to emerge unscathed.

This is a pity, because proper analysis of their role will also suggest what they might do to make things better in the future. Firstly, they should acknowledge the absurdity of the Standing Order that they put in place hurriedly in 1984, mainly it seems to keep Neville Samarakoon quiet. While they have granted that this is hopelessly inadequate and requires further elaboration, the efforts of some to condemn the Standing Order were stymied, on the grounds that that would amount to criticism of their sacred cow, namely J R Jayewardene’s Constitution and its appendages.

Since the UNP leader affirmed this principle, and also refrained from speaking on the Impeachment Resolution, he continues to convince decision makers in government that he is the best possible Opposition Leader for the Government. This is myopic, because they think only in terms of popularity within Sri Lanka. Whilst certainly Ranil Wickremesinghe would fare disastrously in any electoral competition with the President, the same applies with regard to any other possible leader of the Opposition.

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I used to find it most entertaining, I once told Bob Blake, that the main hopes of the West with regard to Sri Lanka rested on a Stalinist and a Trotskyist. This was in the days when some elements in the West were trying to stop us destroying the Tigers, while others, whilst appreciating our need to escape the threat that had bedeviled life here for so long, were anxious that we also moved towards greater pluralism. I used to place Blake in the latter category, and though it seems that he condoned the games that some Embassy staff such as Paul Carter played later on, I had no objection to his support of pluralism.

I was also glad that he appreciated DEW Gunasekara and what he had achieved in a couple of years for language policy, which no government had bothered about in the nigh twenty years previously after Tamil had been made an official language. This was because the foreigners who welcomed the measures DEW had introduced could not claim that these were done to keep them happy.

We know that there are elements in Sri Lanka, as represented most obviously by the egregious Dharisha Bastians, who nine months ago declared, in conformity with the views of her patrons in the Ministry of External Affairs, that Sri Lanka had finally decided who her real friends were, and would therefore obsequiously follow the West. That particular act of dancing on the graves of Tamara Kunanayagam and Dayan Jayatilleka and myself has since given way to virulent attacks on the government, with similar sanctimoniousness. These have become more shrill recently following the drama of the impeachment, and contribute to the view that everything has to be seen in black and white, with any opposition to the impeachment of the Chief Justice constituting an attack on the government.

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I have entitled this series ‘Looking Forward’, because it is meant to suggest positive measures that would strengthen institutions. That seems to me the best outcome of the tensions that have arisen, with all sides now seeming to be convinced that, because of the inequities of others, they do not need to ensure that their own mistakes will also not be repeated.

JR-jayawardene

There were five distinct steps that Jayewardene took that led to protracted suffering for the country.

In this light, it may be useful also to look back at the mistakes of the Jayewardene government, because it is vital that, having so successfully overcome the terrorist threat, this government does not repeat some of the mistakes that Jayewardene did in his consolidation of a monolithic power structure.

There were five distinct steps that Jayewardene took that led to protracted suffering for the country. In essence they all arose from his determination to brook no dissent.

The first was the deprivation of Mrs Bandaranaike’s Civic Rights, using a Kangaroo Court, which he claimed was acceptable since it consisted of members of the Judiciary. The manner in which the three individuals he handpicked to destroy Mrs Bandaranaike made their decisions is ample evidence that judges are not necessarily trustworthy or guardians of democratic practice. Read the rest of this entry »

Given the plethora of worries about the financial integrity of the Chief Justice, it may seem redundant to demand higher standards also from the Select Committee looking into her case. But the Select Committee itself provided the principal reason for circumspection when it declared that ‘The office of the Chief Justice is a position which demands maximum confidence of the public. A moral conduct of an exceptional degree is expected from a Chief Justice unlike from an average citizen. Your Committee observes that any discredit to such conduct leads to a decrease in the confidence of the public towards a holder of such office’.

That being the case, it must be obvious that Parliament, which is, or should be, an even more exalted entity, must also have the confidence of the public. It must therefore be even more careful not to seem to be biased in its conduct or hasty in its decisions.

Given that the misdemanours the Chief Justice is alleged to have committed would, if proved, constitute criminal conduct, they must be investigated in accordance with criminal procedures. This includes presenting evidence systematically and allowing adequate opportunities for it to be challenged. If that is not done, and clearly seen to be done, public confidence in Parliament would be eroded.

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Problems connected with the attempted impeachment of the Chief Justice require solutions. I believe that impeaching the Chief Justice is no solution to anything, and will in fact lead us to forget the actual problems.

In suggesting the following practical solutions to the problems, I realize I am probably wasting my time, since we have developed a culture of addressing problems with sledgehammers designed for other uses. We generally land it on our own toes as well as the toes of those connected peripherally with the problem, instead of the people or the procedures that are the root cause of those problems.

Thus the United Nations as a whole is attacked for the Darusman Report, when they should have been our most trusted allies in refuting the propaganda of those who pushed the Secretary General into such a selective analysis. Tamara Kunanayagam gets dismissed for the Geneva Disaster, and those who contributed to it are permitted with impunity to deceive the President about leading lights in India as well as in the Sri Lankan Freedom Party, which should be the President’s closest allies in fulfilling his developmental agenda.

I have no doubt then that the same propagandists who accused Dayan Jayatilleka and me of precipitating the crisis in Geneva will claim that the solutions I propose are based purely on personal ambition. But that will be a small price to pay if there is greater awareness of the need for proper procedures as well as clear guidelines for the conduct of public officials.

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I have now had an opportunity to go through the report of the Parliamentary Select Committee that looked into the conduct of the Chief Justice, and its contents amply confirm the position I have advanced, namely

  1. Shirani Bandaranayake has not always acted properly
  2. She should not be impeached

With regard to the first point, the main problem is her getting rid of other judges and appointing herself to head a Bench looking into Trillium matters. It was quite improper that, following a request for a ruling on a very different matter, she should arbitrarily have put herself in charge of those cases instead of a senior judge of proven competence. And it was particularly deplorable that she should have done this when engaged in business deals with concerned parties.

One problem with regard to which the Select Committee finds her guilty does not seem at all appalling. To accuse her of misconduct because she is in overall charge of judicial procedures at a time when her husband might be subject to them is not at all reasonable. Had she tried to influence the judiciary in such a situation, she would certainly have done wrong, but to find her guilty because she is in a position to do wrong is a strange interpretation of justice. All she need do to ensure nothing improper occurs is recuse herself from decision making with regard to cases involving her husband.

The other point on which she has been found guilty is not declaring various accounts in her annual declaration of assets and liabilities. Several other improprieties in this connection are also noted in the Report, some of which also seem reprehensible. However, there is provision for prosecution for any serious misdemeanours in this regard. Given that there is a judicial process laid down for those suspected of offences, it is best that that process be followed. For Parliament to sit in judgment on such matters, without ensuring due judicial process, is inappropriate, and worries in this regard have been increased by the haste with which the Parliamentary Select Committee went about its business.

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It was certainly unusual that someone with no previous experience of the Courts should have been elevated to the Supreme Court …

The recent decision of the President to seek further advice before deciding whether to proceed with the impeachment against the Chief Justice is most welcome. It suggests that he feels concern about the position to which various elements in government were propelling the legislature.

There is no doubt that there have been several misjudgments with regard to the treatment of the Chief Justice. It was certainly unusual that someone with no previous experience of the Courts should have been elevated to the Supreme Court, and I have even heard it said recently that this was designed to prevent the elevation of the then Secretary to the Ministry of Justice, who would in the ordinary course of things have become the first woman Supreme Court Justice. But she fell foul of the Minister, and did not receive her due, though all those working on implementation of the Human Rights Action Plan have found her more conversant with the law, as well as administration, than anyone else in government now.

Be that as it may, there is nothing intrinsically wrong with putting an academic on the bench, and in fact Mrs Bandaranayake’s judgments have generally been acceptable, with nothing as outrageous as that which emanated from a previous Chief Justice. However it should have been recognized that to fit her in on a par with others with regard to seniority was not particularly wise, if seniority on the Bench was the only criterion for being elevated to Chief Justice. Certainly, given the tender age at which she was appointed, it was inevitable that, if that were the only criterion, she would be Chief Justice sooner than later, and have a lengthy tenure.

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Rajiva Wijesinha

August 2017
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