In just 4 days more, we will commemorate the 6th death anniversary of Darmarathnam Sivaram, who was abducted and killed in Colombo on 28th April 2005.
Known as Siva among his friends and as Taraki in the media field, Sivaram was one of the best analytical minds in Sri Lankan journalism. He was an organic intellectual, with an enviable knowledge of politics and war. The foot prints left by Sivaram in Sri Lankan journalism has outlived his life, and will remain with us for a long time to come. His writings will remain as part of the history of the Sri Lanka Tamil peoples struggle for self rule. Sivaram's writings are fitting proof for the dictum that 'journalists write the first draft of the history.'
He was abducted in front of his colleagues, on a main road in Colombo. The killers were so confident that they carried out this heinous crime without any hesitation or fear of being recognized or arrested. His abduction heralded an era of media suppression which was to continue for years to come.
Today, after six years of his death we are commemorating not only Siva but also many other journalists and media workers who have been killed in Sri Lanka in the years that followed. In the last 6 years at least 35 journalists and media workers have been killed in Sri Lanka. 7 journalists were abducted. Five media houses were set on fire. Number of news web sites were blocked. Hundreds of journalists were arrested, assaulted, threatened and intimidated. Over 50 journalists had to leave the country to save their lives.
There has been no war for the last two years in Sri Lanka. Has the promised liberation and freedom reached the people of Sri Lanka? Are peoples' human rights respected and is democratic governance in place?
For an outsider, the situation in the country may look normal. Elections are being held. According to the IMF, economic indicators are improving. More tourists are visiting Sri Lanka. The political opposition is in disarray. President Mahinda Rajapaksha seems to be holding on to his popularity among the Sinhala majority.
But we all know that if appearances constitute the truth, then there is no need for science and, in this case, for social and political analysis. The North African revolutions have shown us that the superficial appearance of a country does not reflect the actual social – political reality.
Not a single attack against a journalist or a media institution that has taken place during the last 6 years in Sri Lanka has been investigated properly. The culture of impunity that prevails in the country is the iron shield under which murderers and law breakers take cover.
For the media, self censorship has become the unwritten rule. No informed discussion takes place giving different opinions and points of view to the citizenry. The huge state media sector is politically controlled by the ruling party, making them the most partisan media in the country. Thus, citizens are left without the information that would enable them to make informed judgments on matters that affect their lives and the lives of their fellow citizens. That is where the democracy deficit begins.
Civil society is forced to retreat into submission or silence. Trade Unions, local and foreign Non Governmental Organizations have been intimidated, their staff has been attacked, some expatriates have been expelled. Overall, the ability of these organizations to protect and expand peoples rights has been severely curtailed.
The government of Sri Lanka fellows the infamous theory that if you are not with us then you are with the terrorist. In practice this means that anybody who disagrees with the Government of Sri Lanka is considered as an anti national traitor. In the discourse of war, traitors have only one fate – that is an undated death sentence.
The draconian Prevention of Terrorism Act and part of the Emergency Regulations remain in force in spite of the official pronouncement that terrorism has been defeated. Under these laws and regulations, police and armed forces acquire powers that go well beyond natural justice, rule of law and international norms and standards.
In the Tamil majority North and Eastern provinces, both governors are Sinhalese and former military commanders. Even two years after the so-called end of the war, the civilian administration in these areas remains under military control. The military presence is very visibly dominant in these areas. People in the Vanni cannot even have a simple extended family gathering without the knowledge of the military. Recent reports says that even to open a small kiosk, a petti kade, people in the Vanni need to inform the military and get clearance from them. In some areas of the Vanni, the military has officially informed civil groups that it has to be informed of any gatherings, even social ones such as weddings and funerals. Those who were displaced by the war in the Vanni and have now been resettled are living under a strict military administration. The estimate is that there is one soldier for every three citizens. Over 5000 Tamil youth are still held in captivity.
In the Sinhala majority Southern areas too repression is common. Protest demonstrations, marches, rallies and, poster campaigns initiated by those who oppose the government’s policies are subject to attack by pro government gangs . In recent months, these attacks have taken place while the law enforcement officers, the Police, stood by and watched. In the Tamil majority areas this type of political activity takes place very rarely, mainly because of the fear psychosis instilled in them by the huge military presence. Nevertheless, women in the East continue to demonstrate against disappearances, demanding justice for their loss; shopkeepers in Vavuniya continue to protest against extortion.
For the Tamil people of Sri Lanka, and for those in the North and East in particular, in practice, the rule of law and democracy means a political system of self rule, based on genuine devolution of power. The post war Sri Lankan state has failed completely to address this issue. The multilateral consensus reached by the All Party Conference on a political solution to the conflict has been discarded. The 13th amendment to the Constitution remains a dead letter. Instead of peace, development and devolution, what the Tamil people are experiencing is militarization of a unprecedented scale.
The Sinhala majority is being fed with stories about the greatness of the war victory day and night. Whoever wants to question the aftermath of this so-called victory is forced to shut up. Any sign of dissent is suppressed or intimidated. The carrot and stick policy is at work at its best.
In conflict sensitive journalism, we as reporters are encouraged to go beyond the five Ws. The 5 Ws are as you may know Who, What, Where, When, Why: Who is it about, What happened? Where did it take place? When did it take place? Why did it happen?
Going beyond the 5 Ws is to ask What is not reported? Who is not in the story? Why didn’t happen in another way and so on to get the multiple sides of the story. To understand Sri Lanka today we need to ask these very same questions.
Recently I had a skype call with a Sinhalese intellectual cum journalist colleague who is very knowledgeable on the situation in the country. He said, " Machan (Siva would have called most of us in the same way) you will not believe this. but listen. This shows the level of military control in the country." A high profile NGO has sent one of its project proposals for reconstruction of war affected villages to the NGO secretariat for approval. The NGO secretariat is under the Ministry of Defense. So the proposal went to the brigadier in charge of the area. A meeting was called with the NGO office bearers. At the outset the question the Brigadier asked was: what is the reason for selecting more Tamil villages for the project. He said that the proposal was not balanced. The NGO tried to explain that it was a proposal for reconstruction of war affected areas but at the end most of the activities to be carried out in Tamil areas had to be dropped.
This was not reported any where. According to professional media this is not a reliable news. Is there any way to verify this? Will the NGO or the brigadier will answer questions by any reporter? No. The war in Sri Lanka was named as a silent war. Today post war Sri Lanka is experiencing a much more prevalent and deeper silence on rights violations.
To give an example of the intimidation of other voices in Sri Lanka today I would like to make a prediction. I will be branded as a traitor for the nation for speaking here on media freedom and rule of law in the country, in memory of Sivaram.
The practice of branding dissenting voices as traitors who are to be eliminated is still strong and prevalent in Sri Lanka, even two years after the end of the war. It was not long ago that two well known politicians in Sri Lanka were physically attacked for criticizing the government outside the country. Dr. Wikramabahu Karunarathna was attacked at the Airport and parliamentarian Dr. Jayalath Jayawardena was attacked in the Parliament.
Has any one being arrested? No. And no one will be. Speaking on the attacks on Dr. Karunarathna Dr. Jayawardena two ministers made public statements saying that any one who betrays the nation, will be taught a lesson by the people, a people’s justice.
Very recently a notice was posted on the gate of a news web site offfice which said: "Let us carry forward the sacred struggle. Based on needs of foreign forces and NGO Tiger agents, Lanka e-News Sinhalese Tigers are provoking anger and hatred amongst patriots by betraying the great victory of the motherland that was achieved at the cost of tens of thousands of lives of patriots."
Two lawyers who appeared for the news editor of that website when he was arrested and detained were intimidated. This is not the first time that lawyers have been intimidated for defending the rights of the people. It was none other than the Defense Ministry web site that named leading human rights lawyers as traitors at the height of the war. One of them is today a law maker in the country: Attorney at law M.A. Sumanthiran who was thus named as a traitor is today a member of parliament.
Indicators for freedom and democracy for any country are the same. These Rights are enshrined in the Universal Declaration of Human Rights and other international human rights laws and treaties. These rights are the Indicators for freedom in any country. How far a country adheres to and implements these rights is an indicator of the people's freedom in that country.
Last year three UN expert groups on UN conventions on Child Rights, on Economic, Social and Cultural Rights and on Women's Rights, had their sessions on Sri Lanka. They issued their observations and recommendations and requested the government to publish them in all languages in Sri Lanka. So far none of them have been given any publicity by the government. With over 5000 cases Sri Lanka tops the unresolved cases of disappearances listed by UN working group on enforced and involuntary disappearances. Requests for country visits by five UN Special Rapporteurs to the government of Sri Lanka has not been granted for years.
A fundamental principle of democratic governance is separation of powers between the three arms of government: the executive, the legislative and the judicial.
In Sri Lanka today all powers are concentrated in one institution that is the Presidency. Even the checks and balances that were in place to make the President accountable have now been removed. In August 2010 the Parliament passed the 18th amendment to the Constitution and thereby placed the appointment of national human rights commission, judicial services commission, public services commission and election commission under presidential powers. At the same time, the two term limit for the presidency was removed making it constitutionally possible for one person rule the country for his decades. On top of all these powers, the President enjoys total immunity. These changes make Sri Lanka a constitutional dictatorship, not a democratic socialist country as stated in the constitution.
Writing on post war Sri Lanka, the prestigious New Yorker magazine said of the President: "One of his brothers, Gotabaya, is his defense minister; another, Basil, is his chief of staﬀ and minister for economic development; and a third, Chamal, is Speaker of Parliament. His twenty four-year-old son Namal was recently elected to Parliament, and forty-odd additional brothers, sisters, cousins, nephews, nieces, and in-laws hold various other government posts" The same opinion was repeated in the US State Department’s human rights report for 2010.
There has been more disturbing news recently which may affect local government structures throughout the country.
The government is creating a new administrative unit called Colombo Metropolitan Corporation (CMC) which will include the Municipalities of Colombo, Kotte and Dehiwala-Mt.Lavinia, Kolonnawa Urban council and Kotikawatta-Mulleriyawa Pradeshiya Saba. This mega CMC will come under Defense secretary Gotabhaya Rajapaksha. The CMC will be the actual development authority for all these areas by passing the elected local bodies.
In other areas of the country another institutional set up called Jana Sabha (People’s Councils) will be established. These institutions will comprise local leaders and also bypass the elected local bodies in overseeing and controlling central government development projects. 5000 graduates will be recruited on political grounds to run these Jana Sabhas which will come under minister Basil Rajapakse. These Jana Sabas will have wide powers including controlling decentralized budgets.
Protecting human rights is central to any democratic society. An independent Human Rights Commission can play a pivotal role in defending and protecting citizens’ human rights. But today the National Human Rights Commission of Sri Lanka is no longer an independent body. Its members are appointed by the President. The Sri Lankan NHRC has been down-graded by the International Coordinating Committee of National Human Rights Institutions (ICC), first in 2007 and again in 2009. It remains down graded as non- independent.
Until recently there were no commissioners in the NHRC as the 17th amendment to the constitution, under which these independent commissions were appointed, was resting in the dustbin. President Rajapaksha appointed a new Human Rights Commission on 21 February this year under the powers vested in him by 18th amendment to the constitution. This is what the Friday Forum, a collective of eminent persons of Sri Lanka had to say about the appointments:
"First, there is no transparency regarding the process by which the appointees were selected.
We understand that among the five appointees are a former Inspector General of Police (IGP), a former Government Analyst and a medical practitioner. We wish to question what human rights protection experience and credentials they bring to the Human Rights Commission. In short, the criteria that may have been used for selection is highly suspect.
We seriously question the suitability of those who have served in the police or the armed forces to serve as members of the Human Rights Commission. A large proportion of complaints received by the HRC are against excesses by the police or the armed forces. Victims of such excesses may be reluctant to come before the HRC for fear of breach of confidentiality and reprisals and, more importantly, of lack of impartiality. After all, justice must not only be done but must also be seen to be done."
The way HRC was appointed is a clear sign of the way human rights and rule of law is being treated in Sri Lanka. On the other hand the silence of human rights NGOs on NHRC appointments shows the level of intimidation they face.
The fundamental human rights of a citizen are inviolable under any situation. If their fundamental human rights are not protected, people become vulnerable to abuse and misuse of state power. But today the citizens of Sri Lanka have to bargain their Fundamental Rights for freedom form custody.
A printer was arrested for printing a poster which depicted the president as a dictator on 8th September 2010. The printer had undertaken this printing order on behalf of the main opposition United National Party. At about 3 o'clock in the morning on 8 September, police arrested the printer’s wife and her two younger brothers. The police filed a case against the printer Jayampathi Bulathsinhala, and others after they were bailed out.
In turn the printer himself filed a fundamental rights petition against the police for unlawful arrest in the Supreme Court and received leave to proceed His arrest was illegal and his FR petition had sufficient ground to go ahead. But at the end he had to withdraw his FR case as a bargain for the release form the case filed by the police.
A few years ago we couldn’t even think of such thing happening. The culture of bringing fundamental rights violations to the Supreme Court for remedial action was strong. Today the police can drag on the case under PTA, the accused and his family may receive threats and family and friends may be advised to retreat. Earlier printer V. Jaseharan and editor N. Vithyatharan also had to withdraw FR cases filed by them to obtain freedom.
At the outset of the second term of the present President, the Attorney General’s Department, which should be an independent institution in any democratic country, was brought under control of the executive presidency. Recently, the Attorney General withdrew murder charges against former MP and ruling party politician Chandana Katriarachchi while the trial was on going. The AG also withdrew rape charges against Colombo district ruling party MP Duminda Silva, who is also the monitoring MP for the Defence Ministry.
The Chief Justice and the former Chief Justice have openly criticised this practice of the Attorney General. According to them, the AG does not have right to withdrew cases in this manner. Will any corrective measures be taken? Sadly, nothing will happen because of the political power of the accused.
Ruling party politicians can get away scot-free for any crime in the country while an unknown number of Tamil detainees are languishing in prisons for more than a decade, in some cases 14- 18 years, without any charges brought against them. Clearly there are two sets of laws in the country.
Retired Gen. Sarath Fonseka, who was the common opposition candidate during the presidential election of January 2010, received 40% of the votes, namely 4.2 million votes. A few weeks after the elections, he was arrested and tried before a military tribunal and is now in prison. Other cases are pending against him. The way the cases against him are being conducted leads us to believe that this is purely a case of political persecution.
But the law takes a different route when it comes to ruling party politicians. A government minister was cleared form any wrong doing after he tied a government official to a tree in front of media coverage for not obeying his orders. Government accepted his explanation that it was a drama not a punishment! The same minister has taken the law onto himself on several occasions making governance a mockery.
Another minster openly shouted at and chased away a Deputy Inspector General of Police when the officer tried to protect the UN main office compound in Colombo in the midst of a anti UN agitation. The same minster told a TV channel that all three members of the UNSG's expert panel on Sri Lanka was bribed by the Tamil diaspora using money from LTTE coffers.
To commemorate International Womens Day in 2009, the wife of a government minister who was serving a life imprisonment for double murder was released.
Recently TNA MP for Vanni, S. Sri Dharan was prevented form speaking to a visiting Al Jazeera media team by the military authorities; his vehicle was shot at within a week of that incident.
In an appeal to UN Secretary General, the Inter University Students Federations has said that 40 students have been detained and over 300 University students suspended in the recent past. On a number of occasions in the recent past, dozens of political activists of opposition political formations have been detained by police for putting up posters.
On the independence day, that is 4th February 2011, a peaceful march organized by the main Opposition party, the UNP in Colombo was attacked by politically motivated thugs. Even vehicles of opposition MPs were damaged. All these attacks happened in front of the police and they did nothing to stop the attackers. UNP MP Dayasiri Jayasekara submitted a list of names of underworld persons who were employed to attack the UNP march to the parliament. So far no inquiry has taken place on the complaints made by parliamentarians.
Two JVP parliamentarians were also arrested and man handled by Galle police on 15 Aug 2010 for organizing a peaceful march. No action has been taken against the unlawful act of the police.
These are only few examples of how people’s right to association and expression is suppressed in Sri Lanka. The list is long and unending.
On the top of all these violations, the major rule of law challenge faced by Sri Lanka at this moment is the issue of rights violations that took place during the last phase of the war. The Panel of Experts appointed by the UNSG on the issue has submitted its report. The report calls for a independent investigation by UN as well as by GOSL emphasizing that it has found credible allegations, which if proven, indicate that a wide range of serious violations of international humanitarian law and international human rights law were committed both by the Government of Sri Lanka and the LTTE, some of which would amount to war crimes and crimes against humanity. The Tamil National Alliance has already asked the GOSL to implement its recommendations.
The report also has number of short term recommendations with regard to
re - establishing rule of law and democratic governance in the country. But unfortunately the Sri Lankan government has rejected the report in total. Some 6 months ago same fate awaited for the human rights bench marks proposed by the European Union in order to extent GSP plus tax benefits to Sri Lanka.
The unfolding events as follow up to the release of the UNSG panel report will show the world whether Sri Lanka is ready for the paradigm shift that will usher the path of democracy, rule of law and justice or whether it will continue on the beaten path of injustice and autocracy for years to come.
This is an edited version of the Sivaram Memorial speech delivered by Sunanda Deshapriya on 24th April 2011 in Bern, Switzerland.