Lessons to be learnt for national reconciliation

By Shanie | The Island
.............................................................................................................................................................................................

"The quality of mercy is not strain’d.
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest:
It blesseth him that gives, and him that takes.
‘Tis mightiest in the mightiest; it becomes
The throned monarch better than his crown.
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the heart of kings;
It is an attribute to God himself;
And earthly power doth then show likest God’s
When mercy seasons justice."

When Sri Lanka obtained independence from colonial rule, we were far ahead of almost all countries of Asia in all areas of the indices that measure the quality of life. We were a participatory democracy where the citizens had had the benefit of universal suffrage for nearly two decades – something that had not been enjoyed by most countries of the world, including the western democracies. Our literacy rate was not only well over Asian standards but over most countries of the world as well. This was because education was freely accessible to all with good schools available in all regions. Similarly health services were freely accessible to all with state hospitals and dispensaries in towns and villages throughout the country.

Co-operative stores throughout the country provided food items at reasonable prices, basic items like rice, rationed and subsidised, available to all citizens. A network of roads, railways and waterways connected all parts of the country. We had an enviable postal system that delivered mail to almost all parts of the country within 24 hours.

But above all these tangible indices, there was ethnic harmony and national integration. The Jaffna Tamil trader had his cigar boutique in the deep south; the Matara Sinhala baker opened his business in the far north and was almost the sole supplier of bread to the Jaffna citizen. Tamil and Muslim traders were able to do business in Kiribathgoda and Sinhala industrialists were able to set up plants in the north and east. Public servants of all ethnic communities served in all parts of the country with great acceptance. They learnt the language of the district and were able to communicate and serve the people of the villages where they served. Teachers of all ethnic communities taught children of all communities in all parts of the country. They were not those who merely taught in the English medium. Sinhala teachers taught Sinhala to Tamil students at Jaffna Hindu College and in many other schools. Similarly, Tamil teachers taught Tamil to Sinhala students at Ananda College Colombo and in other schools.

But where have we taken Sri Lanka in sixty years of self-rule? Over these years, we have destroyed all that was precious in our culture of pluralism and tolerance. The blame should go not just to the politician for whom any means is justified to acquire and retain power. The greater blame lies with the intellectuals, the media and the religious and civil society leaders who really create public opinion. They have been shamelessly willing to compromise their consciences and sacrifice principles of justice to seek favours from politicians in power for their personal advancement. Nothing is more symbolic of this attitude of mind than the harassment of Sarath Fonseka. Irrespective of what opinion we may have of the qualities of the former Army Commander, there can be no doubt that he has been the victim of abuse of power.

Rule of Law and the Public Interest

The last bulwark we had in the slide downwards in governance over the sixty years was an independent judiciary. The public service has been becoming increasingly politicised since the nineteen seventies; it was to check this alarming trend that public opinion, expressed through the JVP, formulated the Seventeenth Amendment which sought to depoliticise key areas of governance. Unfortunately, the seventeenth amendment became a dead letter, despite it being a part of the constitution until the eighteenth amendment was passed, since President Mahinda Rajapaksa took office. We were back to a politicised public service, etc.

The Friday Forum is an informal group of public-spirited citizens who wish ‘to contribute to the future development of Sri Lanka within a framework of democracy, social justice and pluralism.’ Recently they have issued two excellent statements on current issues that concern all those wanting to see Sri Lanka move towards democracy and good governance. The most recent were their submissions to the Lessons Learnt and Reconciliation Commission. But what we are concerned now was their earlier statement on the issue relating to the Attorney-General’s Department. From the very inception, the Department came under the purview of the Ministry of Justice. But after the recent General Election, and the consequent formation of the new cabinet, the subjects allocated to the various Ministries were also re-assigned. The Attorney General’s Department has been taken away from the Ministry of Justice, and not being assigned to any specific Ministry, automatically comes under the direct purview of the President. The significance of this re-allocation is seen in the number of prosecutions being brought against Sarath Fonseka, the principal opponent of the President at the last election.

On the issue of the taking away the Attorney General’s Department from the Ministry of Justice, the Friday Forum had this to say: "That in a democracy, the Attorney-General should not only function but must be seen to function in an independent manner cannot be emphasised more. The Supreme Court of Sri Lanka has, in no uncertain terms, recognized and affirmed the independent role of the AG (Land Reform Commission v. Grand Central Ltd. [1981] SLR 147).

The AG is the custodian of the Rule of Law and of the public interest in a democracy. The functions of the AG must always be informed by no other factor or consideration than the upholding of the public interest and the Rule of Law. Even in countries where the Attorney-General is a political appointee, there is an expectation that the holder of that office must act independently of the Executive, especially in prosecutorial functions, because to do so otherwise would negate the preservation of the Rule of Law and the public interest.

If the Attorney-General, in discharging the functions of office, provides legal advice to the government or engages in the prosecutorial function in a non-independent manner, moved more by political and partisan considerations, the Rule of Law is defeated and the public interest stands desecrated."

Needless to add, it is the duty of the Attorney General to defend the rule of law and the public interest, irrespective of whether his department comes under the purview of the President or the Minister of Justice or any other Minister. For democratic governance and in the interests of justice, the Attorney General General must maintain the highest standards of independence and integrity in the discharge of his functions. And more, he must only be independent but also seen to be independent.

Justice for political opponents

The prosecutions that keep mounting against Sarath Fonseka will offend the sense of justice of all except the perverse. To the credit of Sarath Fonseka, he has borne all this with quiet dignity in the same way that Sirimavo Bandaranaike bore the deprivation of her civic rights after the sham of an inquiry by a hand-picked Commission by the then UNP Government of J. R. Jayewardene. It must not be forgotten that JRJ was not content to deprive his principal political opponent of her civic rights but then went to see the principal supporters of his opponent at the following Presidential Election was incarcerated in prison under emergency regulations. These included Vijaya Kumaratunge and Ratnasiri Wickramanayake.

The Friday Forum has stated that the functions of the Attorney General must be informed by no other factor than the upholding of the public interest and the rule of law. We also do not need to remind all state prosecutors of the wise words of a former Attorney General that the duty of the Attorney General’s Department is not to win every case for the State but to help the Judge arrive at the correct decision.

Many religious and civil society and political leaders have petitioned the President that Sarath Fonseka should be pardoned. But the President are reported to have stated that the President would "consider" a pardon only if an appeal came from Sarath Fonseka or his family. Fonseka has quite rightly rejected this. If the President is unwilling to accept the pleas of those who have petitioned him, Sarath Fonseka seems willing to bide his time as Sirimavo Bandaranaike did in the eighties. History has given its verdict on the perversion of justice that deprived Sirimavo Bandaranaike of her civic rights. History will also no doubt give its due verdict on the incarceration of a former Army Commander and now a principal political leader and the deprivation of his seat in Parliament.

‘Mercy is above the sceptred sway;
It is enthroned in the heart of kings;
It is an attribute to God himself;
And earthly power doth then show likest God’s
When mercy seasons justice.’

© The Island