Harim Peiris

Political and Reconciliation perspectives from Sri Lanka

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Archive for October, 2018

SB Dissanayake and the caretaker Government

Posted by harimpeiris on October 25, 2018

By Harim Peiris

(Published in the Island of 25th October 2018)

 

Hon.SB Dissanayake, currently member of Parliament from the National List, is easily the most active of the political movers and shakers in the SLFP group of sixteen in opposition. He has since resigning from the Government following the failed no confidence motion against the Prime Minster, been fairly active in seeking to make things happen, rather than allow events to run their course. With the term of office of the President ending in January 2020, we should be in full blown presidential election mode, this time next year. Though Parliamentary elections are only due around August 2020, the constitution does allow the President to dissolve Parliament six months before its term is up, so about a month after the presidential election, the winner of that election may dissolve Parliament and actually would be well advised to do so, whoever he or she, may be.

But the SLFP rebel group and reportedly some of the president’s advisors whose thinking is in line with the opposition grouping of the SLFP, are impatient and desire to bring about changes in the government, a lot sooner than the natural end of the Government’s term. However, the political dynamics which drives these processes, the no confidence motion, the attempted caretaker government, whisperings of seeking to defeat the November budget, all require to be examined in the light of independent Sri Lanka’s political history to make any sense of what is going on.

Sri Lanka, like many parts of the democratic world, especially in the Commonwealth countries of former British colonies, have been governed by a basic two-party system where political power is alternated between two major power blocs through period elections. Often after one term and sometimes after two. Our executive presidential system with term limits has also ensured that though a party may continue in office, the executive president and executive authority will change after two terms.

The elections of 2015 were not a major exception to this rule. The Rajapakse Administration seeking an unprecedented third term via provisions of the now defunct 18th Amendment to the Constitution essentially faced a unified and combined rainbow coalition of the then opposition parties, led by the United National Party and fielded a common candidate, who was incidentally from the incumbent president’s own party. This was a smart tactical move and the choice of candidate had a lot to do with a new fresh face, with no political baggage, who could be a unifying factor for the political elites, that all could rally around. Maithripala Sirisena had been seen for a long time in political circles, but not heard very much and certainly had no political enemies or detractors. Prime Minister Ranil Wickramasinghe believes that if he was the NDF candidate, that the election would still have been and this contention is probably correct. However, it would have been impossible, in a couple of weeks to unify a deeply divided opposition around the then Opposition Leader, who while not exactly polarizing was seen as insufficiently electorally exciting and also it would have offered no incentive for even a small breakaway from the SLFP / UPFA. The rest is history.

A major group of the SLFP did not really break away with President Sirisena, the vast majority joined him after his shock win. Political theory would generally lead to the expectation that the breakaways would gravitate back to where they came from. This was certainly the experience of the UNP as well, which had experienced their own breakaway during opposition days in the form of a rebel group under then Minister Karu Jayasuriya who broke away and supported President Rajapakse, supposedly to help prosecute the war and also pass the 18th Amendment, eliminating checks and balances in government, for good measure. However, Karu and some though not all the UNP rebels returned to the fold.

The essential political forces driving the Sri Lanka Freedom Party / UPFA back towards the Rajapakse political vehicle of the Sri Lanka Podujana Party (SLPP) is political. Essentially the election results of 2015, was  52% for the winner and 48% for the unsuccessful candidate and most of the political constituency amounting to 48% which backed Mahinda Rajapakse in 2015 are essentially returning to the fold. This is the political pressure which the SLFP has been feeling for a while and is the driving force, motivating those like Hon.S.B. Dissanayke to be as active as he is, in trying to make that happen. True believers in challenging the Rajapaksa’s and seeking to have a left of center political force in the current ruling alliance, such as Ministers Mahinda Amaraweera and Duminda Dissanayake are few and far between within the SLFP.

The Rajapaksa’s though have a serious problem and this is what gives the SLFP opposition group and some of the president’s advisers hope. Their problem is which Rajapakse is to be the presidential candidate or a dynastic succession issue within a modern democratic dynasty. Sri Lanka’s historic experience of dynastic succession during our pre-colonial monarchies are bloody, brutal and bitter. For Sri Lanka’s sake, the Rajapakses who are intent on staying in the political game, need to get it right. Mahinda is term barred, Gotabaya is a foreign (dual) citizen as is Basil, Namal is too young and Chamal does not want the job, unless he has greatness thrust upon him. It is in this situation that the SLFP rebels and their senior advisors and activists are exploring the possibility of a second term for President Sirisena in alliance with the Rajapaksa’s as the standard bearer of the center left forces with a Rajapakse as Prime Minster, even Mahinda who is not term barred for PM, under the broad umbrella of the UPFA, leaving 2025 open for a Rajapakse return to the apex. It is a long shot, but plausible and possible, even probable. Stranger things have happened in Sri Lanka. Time will tell.

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A Public Presidential chiding to the Attorney General & Police

Posted by harimpeiris on October 1, 2018

By Harim Peiris

(Published in the Island of 20th September 2018)

 

President Sirisena several days ago disclosed to the media that he had strongly chided the Attorney General’s Department and the Police Department, specifically the CID, with regard to investigations relating to serving military officials. This was preceded by a special cabinet meeting in which he reportedly had also expressed the same sentiments. To the extent that the President of the Republic strongly criticizes the law enforcement, prosecutorial and justice departments of the Government, the obvious parallel would be with US President Donald Trump who also uses his now famous Twitter account, to both chide his own Attorney General, former Senator Jeff Sessions, Robert Muller, the Independent Counsel investigating possible Russian interference in the US election process and at various times both the FBI and the CIA.

The reason for the US President to take to social media, especially Twitter, to express his ire at the justice system, is that in the United States, the criminal investigative and prosecutorial processes are strongly independent of the executive branch of the government. They are overseen by the legislature, the US Congress. The system of government in the United States strongly separates the three functions of state governance, the executive, legislative and judicial branches.

This is not the case in Sri Lanka. The Attorney General’s Department in particular, is the chief legal advisor to the state and in practice this has meant to the government of the day.  However, it is also meant to be an independent prosecutorial office, but the ability of the AG’s Department to be both government legal advisor and a regulator or enforcer of adherence to the law by government, has in the past always been suspect. Now clearly, they are more independent of the executive, which is why the Presidential recourse to non-performance, is political pressure through a public chiding.

The 19th Amendment at work

 

The 19th Amendment to the Constitution of Sri Lanka is the signature achievement of the Sirisena / Wickramasinghe Administration elected in 2015. It was seen as a stepping stone to abolishing the executive presidency, a reversal of the previous Administration’s 18th Amendment and an attempt to strengthen democracy in Sri Lanka through ensuring that we as a nation are governed by laws and institutions and not by populist strongmen occupying the office of executive president.

Accordingly, key appointments are made by the Constitutional Council to a range of Independent Commissions, which administer critical State functions, such as elections and the police, all of which should be independent of the executive. Handing over the management of the careers of police officers, including appointments and promotions from a politicized process to a truly independent Police Commission has eliminated the need for police officers to take orders from politicians to further their own career prospects.  To that extent, the police are free to operate more independently.

Investigating military officers eliminates appearances of impunity

 

A key allegation against the Sri Lankan State and especially its justice system is that human rights violations and state agent violators do so with impunity. Buttressing this argument is that we have a paucity of cases in which Sri Lanka has prosecuted rights offenders and an even lesser number of convictions in that regard. It is therefore a salutary aspect of Sri Lanka’s democracy and a credit to the robustness of our institutions, if no one is deemed above the law, whether from the political, military, or civil service establishments. Also, due process and protection of the rights of suspects should not be a special privilege conferred on suspect military officers alone. It should be extended to all citizens. It is a cardinal principle of natural justice that everyone is treated equally before the law. Due consideration can and should be given to the rights of suspects including their presumption of innocence. Kishali Pinto Jayawardena in her popular most recent legal column states “In sum ensuring that fairness ensures to all citizens in equal measure in criminal investigation and detention procedures is the basic duty of the state”.

The laws delay

 

The substantive issue that drew presidential ire, was not per se that military officers are being investigated but that such investigations have not resulted in charges being laid, thereby leaving room for the allegation that the arrests and detentions are a witch hunt with extraneous reasons or mala fide. The frustrations expressed by President Sirisena at the lack of prosecutions or the filing of indictments (criminal charges) against corruption and human rights violation suspects is a frustration felt by a large segment of those who voted and supported the “Yahapalana” mandate for change of 2015. So even at this late stage, some progress on prosecutions would serve the cause of justice in Sri Lanka.

The long periods taken to investigate cases, must be viewed in the context of the protracted legal process in Sri Lanka, where the average case takes ten to fifteen years to conclude. The Bar Association which is busy opposing free trade agreements, may be better advised to focus on some legal reforms which can ensure a speedier delivery of justice. As the old popular adage goes, justice delayed is justice denied.

The extended period of holding suspects in remand custody should also be considered in the context of the Prevention of Terrorism Act (PTA), due to be repealed and replaced by the new Counter Terrorism Act (CTA). As Attorney at Law Senaka Perera, President of the Committee for Protecting Rights of Prisoners (CPRP) has claimed that there are one hundred and seven detainees under the PTA against whom charges have not been filed and many have been in remand for over nine or ten years. Hence the severe limitation on the period of detention orders in the new CTA. In summation, it may be fair to state, that Sri Lanka requires many reforms to ensure that society receives more effective judicial remedies.

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