Tuesday, July 16, 2024

Judiciary a Democratic Beacon Amid Instability in Sri Lanka

President Ranil Wickremesinghe of Sri Lanka last month postponed the local government elections scheduled for March 9, 2023. “This is the height of absurdity,” explained senior parliamentarian M. A. Sumanthiran. Despite the executive decision to postpone, Sri Lanka’s top court ordered the government to proceed with the delayed local election, overruling President Wickremesinghe, who argued financial inability to conduct the polls.

The Election Commission of Sri Lanka on March 10 declared that the local elections would be scheduled for April 25. There were considerable public protests due to the postponement of elections by an appointed president who had not secured a people’s franchise. The postponement is also seen as a reflection of apparent anxiety among the ruling party members of the Wickremesinghe/Rajapaksa hybrid regime that a clear opposition Samagi Jana Balawegaya (SJB) and National Peoples Power (NPP) victory is in the making. It is no secret that the local election result will be a trendsetter for the next parliamentary and presidential election in Sri Lanka.

The political model in Sri Lanka is unique since the two mainstream political parties from the past have struck a political arrangement, the Wickremesinghe-Rajapaksa model. The UNP grassroots voter base, which competed for votes against Rajapaksa policies, is no more due to the alliance. In this fragile environment, Mahinda Rajapaksa is likely to craft his political maneuvers for a return, as explained by parliamentarian Prof. Channa Jayasumana.

In this political environment, the judiciary has the ability and opportunity to bring back stability to the country. Recently, the Supreme Court took measures to expose the weak decisions of the executive branch and made a sound judgment on the high office bearers of the country. A strong and independent judicial system will positively benefit democracy and push out the autocratic sentiments of the previous regime. People’s power removed the rule of Gotabaya Rajapaksa, and in my recent book Teardrop Diplomacy, I have examined the domestic and external reasons behind the people’s uprising.

Independence for Whom?

Sri Lanka celebrated its 75th Independence Day on February 4. The night before the celebration, police used water cannons to dismantle a protest staged against the rule of the Wickremesinghe-Rajapaksa duo that decided to celebrate independence with a considerably large budget of 200 million (LKR)  when ordinary citizens were facing devastating consequences from a severe economic crisis. According to the World Food Programme (WFP), 36 percent of families are food insecure, and 56,000 children suffer acute malnutrition due to soaring prices.

The logic for the protestors was twofold: The deteriorating economic condition and the same old regime of Rajapaksa continuing behind the shadow of President Wickremesinghe. Political scientist Prof. Jayadeva Uyangoda observes that the enormous spending for the independence ceremony ‘is a case of narrow interests of the ruling elite versus democracy and public welfare.’ This narrow interest has been infested with ultra-nationalism, abused by political authority, and is threatening the individual’s fundamental rights.

Despite the economic hardship to many in Sri Lanka, the rules of the democratic game clearly seem under assault. The draconian Prevention Terrorism Act (PTA) used by the Wickremesinghe regime to arrest innocent protestors was brushed aside by the verdict of the Sri Lankan judiciary releasing a protest leader, the Inter-University Students Federation (IUSF) Convener Wasantha Mudalige, who was detained using PTA by the state. Mudalige, speaking to news media, said the police attempted to assassinate him during custody. He was transferred to various locations during his arrest and was threatened. Days after, another activist and YouTuber, Darshana Hadungoda, was arrested at the airport when arriving in Sri Lanka by the CID for questioning. The regime’s draconian fist used against journalists and activists is visible in Sri Lanka.

In December 2022, the Biden administration imposed sanctions on Sri Lankan hit squad ‘Tripoli Platoon.’ The U.S. State Department sanctions will further pressure the Sri Lankan government on its human rights issues. The Tripoli Platoon was a secret unit of the Sri Lankan Army used as a Rajapaksa hit squad when former president Gotabaya Rajapaksa was defense secretary. There were abductions and assassinations of a journalist such as Lasantha Wickramatunga, the editor of the Sunday Leader Prageeth Ekneligoda, Keith Noyahr, and Upali Tennakoon. The present human rights status and the strong measures taken by the Biden administration will significantly impact the Sri Lankan government at the following UNHRC review in 2023. Also, Gotabaya Rajapaksa, who has applied for U.S. residency, will have a tough call with the accumulated human rights cases against him. The former President was a U.S. citizen who denounced his citizenship when contesting to become Sri Lankan President.

Easter Sunday Judgment

When the political institution is weak and crippled by its politicians violating the fundamental rights of individual citizens, the judiciary has taken a front-row precedence to rectify the political mismanagement. The Sri Lankan judiciary, whom Gotabaya abused to release political criminals, seems to have somewhat gained independence from political interference. The recent Supreme Court judgment on the Easter Sunday Terror attack was hailed by Cardinal Malcolm Ranjith, the Archbishop of Colombo, as “historic.” The ruling was a breakthrough after nearly four years of investigation.

The former President Maithripala Sirisena, his State Intelligence Service (SIS) head, the Chief of National Intelligence, the Secretary of Defence, and the Inspector General of Police were fined by the judiciary on charges of negligence of their duties. The Supreme Court ordered them to pay personally into a victims’ fund of nearly  $ 850,000. The judgment gave two clear signals to the political/executive branch of the government. First, the executive branch has severe flaws and may require amendments, perhaps opening the window to abolish the executive presidency and transfer its powers toward the prime minister. Second, the same judgment citing negligence could be used against other past and present leaders, including Gotabaya Rajapaksa, where people’s fundamental rights were violated. A good example is the people who died waiting for essentials in long queues. The judgment served as a stark wake-up call to the political branch.

The Supreme Court judgment had much more value than merely imposing fines. It refers to a National Security Council (NSC) to be established ‘on a statutory footing and its composition specified with clarity.’ A similar recommendation written with a composition structure in the national defense policy was prepared during this author’s tenure at the national security think tank.

The judgment refers to the administration, which it says ‘shows a lack of awareness and understanding of strategic vision.’ For the first time, the Sri Lankan judiciary pointed out a critical weakness of its lawmakers, where they have leased strategic land to foreign nations and signed multiple agreements weakening its security and foreign policy by different regimes without any long-term strategic vision. The reason the National Defense Policy was approved by the cabinet in 2019 and kept locked inside a cupboard by the Gotabaya regime amounts to clear signs of political interference, inconsistent policies, and not sharing the strategic vision with the people. The people were disengaged with policy making, there was no accountability and transparency, and citizens have still not seen the Hambantota port lease agreement. The message was clear: Strategic vision cannot be built with underhand political deals.

The judgment referring to the Indian intelligence states, ‘Nilantha Jayawardena (Director SIS) cannot put forward a facile argument that the intelligence received on 04.04.2019 was nothing more than mere information’. The Supreme Court has clarified to the nation that this preliminary information was vital and is an essential intelligence. The invaluable judgment further determines that it ‘clearly shows how security mechanisms in the country remained fragile and in shambles.’ Referring to the head of intelligence, the judgment further explains, ‘it is true that the warning signals all arrived at his doorstep. Did he carry out his duties in all earnest? Or did he infringe on the fundamental rights of these Petitioners? We are compelled to observe that he undoubtedly presents the piteous story of a lonely boy on the burning deck with no one coming to his assistance.

The flaws exposed by the Supreme Court in the political and security establishment were observed as a way forward to bring in international assistance, argued Jeremy Laurence, the UN Human Rights official. The UN spokesperson explained the need for the ‘release of the complete findings of previous inquiries and to establish a follow-up independent, thorough and transparent investigation with international assistance’. For this, ‘the full participation of victims and their representatives and to hold all those responsible fully to account’ was requested. The judgment is a clear, encouraging document to the overall human rights record in Sri Lanka without much hope from subsequent governments and a relief to many victims that the judiciary will stand independent and firm in protecting fundamental rights to re-democratize the nation.

Author profile
Asanga Abeyagoonasekera

Asanga Abeyagoonasekera is a Senior Fellow at the Millennium Project in Washington DC and the author of Teardrop Diplomacy: ChinaSri Lanka Foraypublished by Bloomsbury (2023).

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