By Harim Peiris

(Published in the Daily News of 20^th July 2017)

In recent weeks, there has been quite a lot of political discussion on the topic of the political alliance of the two main political parties in the country, the Sri Lanka Freedom Party (SLFP) and the United National Party (UNP), which has joined hands to form the national unity government we have today. Some members of the government have voiced their frustrations over the alliance and are threatening to leave, while the senior political leadership is seeking to preserve the rainbow coalition which formed the Yahapalanaya Government in 2015. The current focus of the debate seems to the MOU between the SLFP and the UNP, which is currently only till December 2017, while the term of the government itself stretches on till 2020.

1. The Presidential election results of January 2015

Any members of the Government who focus too strongly on an MOU between two political parties as the sole criteria for a national government are forgetting the cardinal rule of constitutional governance. Firstly, the Sri Lankan constitution clearly states that the people of Sri Lanka are sovereign and we exercise our sovereignty very directly through periodic elections. In the presidential elections of January 2015, the people clearly and convincingly elected Maithripala Sirisena as President of the Republic and with it thereby, as Head of State, Head of Government and Commander in Chief of the Armed Forces. The people elected a common candidate, a unity figure, the head of a rainbow coalition and gave a mandate for the common program of the common candidate. During the presidential election campaign, then common candidate Sirisena, gave a very solemn and public undertaking, to appoint Ranil Wickramasinghe as Prime Minister. In fact, when D.M. Jayaratne refused to resign following the presidential election result, it was president elect Sirisena who was the most insistent that Ranil Wickramasinghe be sworn in as Prime Minister, right after his own swearing in, which historic events occurred almost poetically on Independence Square one late evening in January 2015.

2. The General Election and the concurrent mandate

During the general election campaign of August 2015, President Sirisena gave another Solomon undertaking that he would not appoint Mahinda Rajapaksa as Prime Minister, even if the UPFA won, which it did not, the UNP prevailing at the general elections. The fact that the National Democratic Front rainbow alliance which won the election for Maithripala Sirisena in January 2015 contested the general election through its or as distinctive constituent parties, does not in any way negate the mandate received by President Sirisena in January 2015.

When we examine the mandate received by the UNP in August 2015, it is equally clear, that the UNP committed to a continuation of the unity government and the program of the rainbow coalition, with a fleshed out and detailed economic reform policy, which is seen as their unique selling point. The joint opposition section of the SLFP has tended to argue that they never received a mandate to work as part of the unity government, but they ignore two important facts. Firstly, it is their party leader, President Sirisena, who is leading the unity government and doing so through a direct mandate of the people. When the SLFP accepted Maithripala Sirisena as SLPF party leader, post the presidential election and after the defeat of Mahinda Rajapakse, their reason for doing so, was that Maithripala Sirisena was indeed president, the SLFP constitution mandating that any member, in the event of being elected president became leader of the party. In doing so, the SLFP, also accepted the responsibility of supporting President Sirisena in that endeavor and role. Secondly, that any mandate at the general election does not negate the mandate of the presidential, which they chose to support for the duration of that mandate. The UNP as the party which received a mandate at the general election has decided that the two parties should work together for the duration of their respective terms of office. There is a concurrent operation of twin mandates and the two mandates are aligned together and mandated by the sovereign people of Sri Lanka. That is the real basis for the national unity government. No party politics or partisan interests could or should trump the popular mandate of the people.

3. Surely it is about delivering on the current mandate

Prime Minister Ranil Wickramasinghe is currently on public record stating that the alliance of the two major parties is a must for the country’s progress and development. It is fairly clear, that the next generation of economic reforms, addressing the effects and causes of the war and strengthening and solidifying democratic freedoms and institutions requires a degree of consensus between the two main political parties in the country. Frankly it is surprising that so far before a national election, either presidential or parliamentary, that political parties seem highly focused on the national elections of 2020. Some sections of the opposition seem focused on the local government elections and that’s fine. It is natural for opposition parties to be wanting to regularly campaign and keep things on the boil. However, the people of Sri Lanka are much more likely to be focused on what the government elected and mandated in 2015 are doing to better their lives and improve their future. The easy gains of 2015 /16 are now behind and the hard work of the mid-term needs to be attended to. Economic, democratic and reconciliation reforms should be the agenda of the government and not the opposition agenda of a premature focus on the elections of 2020.

By Harim Peiris

(Published in the Island of 14th July 2017)

Recent weeks have witnessed a political debate over the presentation by the Government of the enabling legislation for the enactment of the International Convention for the Protection of All Persons from Enforced Disappearances. Much of the criticisms of the proposed Act, seems to stem from misinformation and a misconception about what the proposed Act is all about and what it seeks to achieve.

1. This is for the future not the past

The first point which much be noted with regard to the enabling legislation for the protection from enforced disappearances, is that it is for the future and not for the past. There is no intent or provision in the law to make it retroactive, the law will only be valid for the future. The intent of the law is to criminalize and prevent enforced disappearances in Sri Lanka as a peace dividend for our people. Accordingly, the argument that the Bill is targeting war heroes or will lead to legal jeopardy for war heroes just does not apply, since the Act will come into force more than eight years after the war is over.

2. Sri Lanka has a problem with enforced disappearances / extra judicial executions

The sad reality in Sri Lanka is that we have had in the past, a significant problem with enforced disappearances, running into the tens of thousands. The Manori Muttetuwegama Commission of the mid 1990s documented over forty thousand disappearances, mostly Sinhala people and largely from the South, in the context of the second JVP insurrection of 1988/89. The missing in the North has not yet been documented, but all these past instances occurred during and in the context of an armed threat to and conflict with the State. Currently there is no such conflict, we are nearly a decade after the guns fell silent and we should refrain from living in peace time like we did during the war. This is not just the absence of bombs exploding but the legal framework as well. A war oriented legal framework does not assist in the transition from a violence and war wracked society to a peaceful and prosperous one. If we don’t have change. there is no peace dividend for our people.

During the period of the conflict, enforced disappearances might have been tolerated by society and perhaps sanctioned or used by the state, or state agents, as a counter terrorism measure. However, today we are not engaged in a war against domestic terror or a civil conflict or insurrection. In the event of any such future, nascent threats, it is best to first try and deal with the problem within the context of the rule of law, both domestic and international, as a society governed by the rule of law, as befits our ancient civilization. We cannot act like a banana republic and expect and demand respect. However, our current laws must meet our current needs and our current context, is post war and our need is a reconciliation driven, durable peace.

Post war, the white van culture and enforced disappearances devoured democratic political dissenters and media personalities, demonstrating the dangers of post war continuation of a war period ethos.

3. This is a domestic process

There has also been much debate in Sri Lanka about domestic processes and foreign judges. This Bill is not about accountability it is about non-reoccurrence.  This particular piece of proposed legislation meets all the high hurdles that detractors of international involvement have preciously made. Firstly, it is clearly and solely a domestic process, a domestic law with domestic jurisdiction. The much talked of extradition aspects is for enforced disappearance crimes committed elsewhere in the world, in other jurisdictions. Only Sri Lanka will exercise jurisdiction for alleged crimes committed in Sri Lanka and will investigate and try such persons in a purely domestic Sri Lankan process. The fear mongering hypothetical examples of our political or military security leadership of the past or indeed the present or future being subject to foreign jurisdiction is palpably false and is misleading based on misinformation. One aspect of Sri Lanka’s counter to the world against any international involvement in our judicial processes is that our justice systems is robust, efficient and a reasonable remedy for wrongs committed. We cannot shirk our domestic responsibilities and concurrently also claim we are taking all domestic measures required to ensure non-reoccurrence of conflict and violence.

Protection of Buddhism could include inculcating Buddhist values

Concurrent with the general debate on constitutional reform has been an animated debate about the foremost place to accorded to Buddhism, as provided for in article nine of the present constitution. Firstly, why there is any debate on it at all, is a mystery because all Government leaders from the President, the Prime Minister and various other leaders have assured and reassured repeatedly and both publicly and privately, that there will be no arrogation or change of the said Article nine on Buddhism.

As part of the protection of the Buddha Sassana, it would be worth exploring ways and means of also actually inculcating Buddhist values of compassion and kindness into our society and policy framework. Bhutan for instance, as a Buddhist Kingdom, seeks to measure “gross national happiness” for her citizens to be peaceful and content. In the context of the protection from enforced disappearances it is worth noting, that the sanctity of life is a fundamental tenant of Buddhist teaching and precept and from it could flow the protection of life, including human life, as a fundamental value and would ensure that Sri Lankans are protected from enforced disappearance and extra judicial executions. The right to life is also a constitutionally enshrined basic right. It was way back in 1978 that Sri Lanka essentially adopted a moratorium on the implementation of the death penalty, the last judicial execution in Sri Lanka being I believe in 1975, a moratorium which has essentially lasted for four decades or for a majority of our post-independence history. It is a pity if the Sri Lankan State which, does not implement judicial execution of criminals, was to sanction and tolerate in the post war period, enforced disappearances and extra judicial executions of her citizens.