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A Publication
on The Status of
Adivasi Populations
of India




Time To Rebuild Sri Lanka: Basil Fernando


18 January, 2015

W. J. Basil Fernando is a Sri Lankan jurist, author, poet and human rights activist. Having been a lawyer engaged with human rights issues, he had to flee Sri Lanka decades ago. After that he became a legal adviser to Vietnamese refugees in a UNHCR-sponsored project in Hong Kong before joining the United Nations Transitional Authority (UNTAC) in 1992 as a senior human rights officer for Cambodia. He also served, later, as the Chief of Legal Assistance to Cambodia of the UN Centre of Human Rights (now the UN High Commissioner of Human Rights office). He is associated with Asian Human Rights Commission and Asian Legal Resource centre, based in Hong Kong since 1994. He was executive director of the organization for almost two decades.

Here is an interview that DIGNITY (erstwhile RCT) of Denmark did with Basil Fernando on regime change in Sri Lanka

1. What is your reaction to the opposition winning the election in Sri Lanka?

It is an enormous relief to see the Government of Mahinda Rajapaksa defeated. It was the most repressive and corrupt government we have had since the beginning of our independence in 1948. What is even more encouraging is that the opposition contested this election with a promise that within 100 days of their coming into power they will repeal all the undemocratic and obnoxious clauses of the 1978 Constitution including the 18th Amendment to that Constitution which conferred absolute power on the Executive President. We at the Asian Human Rights Commission (AHRC) have been campaigning for the last 20 years against the 1978 Constitution as it constitutionally created an environment to displace democracy and the rule of law. The period from 1978 - till the last election held on 8th January 2015 - has been one of extreme violence and state sponsored conflicts. The world mostly came to know the ethnic conflict which developed into a military conflict of wartime proportions in the first decade of the 21st century. Descending of this conflict into a brutal armed conflict was a result of the then government to inflame internal conflicts with the view to prevent democratic challenges against government.

These few decades have created an extremely deep wound in the body of the nation. The Rajapaksa regime refused to follow a political strategy of reconciliation and instead, resorted to triumphalism claiming that the President was the hero who defeated terrorism. Every aspect of the rule of law was seriously undermined. The parliament and the judiciary was brought under the grip of the Executive President and all public institutions such as the policing service, the civil service, and the election commissioner’s office were brought under the political control of the president and his party. Civil society was intimidated by killings of journalists or causing them other forms of bodily and psychological harm. Such violence created a situation of internal self-censorship. All state media was used for blatant political propaganda from morning till night. Thus, people had no access to information and were unable to distinguish what is factually correct or false. There was neglect of every aspect of life such as education, health and the environment. There was room for every kind of illegality as a result of which, the drugs and narcotics trade flourished, and money laundering, and other forms of illegalities became the normal way of life. There were direct threats to all human rights defenders and to the victims of human rights abuse. Everyone was expected to endure their sufferings silently. The intelligence services were used for surveillance against the people and were involved in many forms of extrajudicial killings including enforced disappearances, and torture became quite a common phenomenon. This in short, is what the opposition victory in the January 8th election was meant to bring to an end.

Immediately after the elections the feeling of relief at the dissolution of this widespread repressive apparatus can be felt. Further, people are looking forward to quick constitutional changes in order to restore democracy once again by empowering the parliament and the judiciary and creating an environment within which public institutions can effectively function - within an overall framework of the rule of law.

2. What’s your biggest hope for the new government?

My biggest hope is that all the undemocratic aspects of the 1978 Constitution will be repealed thus making it possible for the judiciary and the parliament to function independently and for the civil society to function without fear of any reprisals. My hope is that there will be an upsurge of democratic involvement of the people in the public life in the country, creating an environment to resolve some of the most deep rooted problems. My hope is also that the minorities and the majority will enter into a dialog for resolving their problems instead of having to fall back into violent means to achieve their ends. In fact for the first time after four decades it has become possible to entertain hopes and that itself indicates the nature of the possible transformations to come.

I have also one further hope which need to be fulfilled immediately - which is that the tremendous damage caused to the Sri Lankan judiciary by way of political removal of the former Chief Justice Dr. Shiranee Bandaranayake - should be rectified. This means that the present Chief Justice - who was placed there politically and who ever since, has been openly playing the role of a political ally of the former regime – be removed and thereby create the space for the independence of the judiciary to bounce back again. In fact, a lot will depend on this being achieved as soon as possible.

3. What should be their highest priority?

As I mentioned, the highest priority should be to undo all undemocratic aspects of the 1978 Constitution and thereby prevent the possibility of the enormous abuse of power which Sri Lanka has witnessed for nearly 40 years. Together with this the government must make necessary budgetary allocations to revive and modernize the criminal justice apparatus of Sri Lanka so as to make it possible for the rule of law to prevail again. These will create the environment to undo the great evils such as widespread use of torture and ill-treatment and enforced disappearances and other forms of extrajudicial killings.

4. And why?

The kind of abuse of power with the president’s family virtually taking over all aspects of governance was made possible by the 1978 Constitution which was designed to derail the rule of law. The scholars interested in the study of modern forms of repression should study Sri Lanka as a unique example of how a government, elected through a democratic process, subverted that very process with a view for the president to hold on to power as long as possible. For this purpose, all restraints that were available under the earlier Constitution of 1978 were systematically removed. Without correcting these constitutional provisions, that paved a path to the Executive President exercising absolute power, it is not possible to take a single step to progress towards a democratic state as well as to resuscitate the rule of law.

5. How do you rate Maithripla Sirisena’s chances to make a viable government?

At the moment Maithripala Sirisena’s direct supporters in the Parliament are still a minority. However, within the last few days we have seen significant changes as his former opponents have agreed to support him to put into effect the proposed changes to the constitution and other measures that he has promised to undertake within the coming 100 days. It is very likely that after this initial period the parliament may be dissolved and there will be an election of the new members of the parliament. Due to many factors it is possible to assume that the coalition of parties that support the President could acquire a safe majority. Thus, there are no reasonable grounds to doubt his possibility of making a viable government so long as he honours the promises he has made to revive the traditions of good governance and to eliminate corruption. Perhaps, the surest grounds for a viable and a stable government would be the creation of a genuine corruption control agency which could function independently. In my view, this the most important condition for Sri Lanka to achieve stability and pave the way to resolving the other issues. If this is to be achieved, Sri Lanka becoming a prosperous economy like that of Singapore and Hong Kong is quite likely. Strict corruption control will also pave way for resolving the so called ethnic conflict because it is the instability created by the abuse of power that has been used by both parties to this conflict to inflame violence. In fact, the “ethnic conflict” degenerating into violence created an environment for extreme forms of corruption. If all parties cooperate to bring about a genuinely effective corruption control agency and it is provided with the necessary budgetary allocations, Sri Lanka will soon walk into one of the best periods in its history. The Asian Human Rights Commission some days back, wrote a letter , to the newly appointed Minister Finance urging him to give priority to the allocation of adequate funds for corruption control and the modernization of the Sri Lankan police.

6. Will he be able to live up to his promises about reducing corruption and the power of the president?

As mentioned before, the test of his capacity of living up to his promises to end corruption and abuse of power by himself is the creation of a genuinely competent and efficient agency for the elimination of corruption and providing adequate resources for it to function. If he fails in this task, he will fail in all of his promises. However, there is a great likelihood that many sectors across the society such the business community and the civil society will bring enormous pressure on him to stick to his promises and to bring about an end to the massive corruption. The revival of the free media will also contribute to expose corruption and to challenge the abuse of power. When all the factors are weighed, it is very likely that there will be considerable social pressure to support the President to keep his word, about the promises he has made.

7. How should the new president deal with the human rights violations of the past?

The President should naturally, deal with all the past violations of human rights. However, the President can do this only, if the criminal justice process which has been seriously undermined during the last 40 years is revived and modernized. A bad criminal justice system cannot effectively investigate into past nor present violations of human rights. The paralysis of the criminal justice system was manipulated to cause very large scale human rights abuses including enforced disappearances, torture and ill-treatment and expropriation of the properties of minorities in particular.

The weakness of the criminal justice apparatus also gave rise to a type of religious terrorism where some unscrupulous religious leaders tried to manipulate the majority to go against the minorities. This whether the past and present abuses of human rights will be investigated and prosecuted will depend of the measures that the president must now take to strengthen the country’s criminal justice apparatus; that simply means the country’s policing service. The President has already taken measures to assure the police that all political interferences into their functioning which was a common feature of the earlier regime is brought to an end. I trust that he will take all other measures necessary by providing the required budgetary allocation for the functioning of the criminal justice apparatus.

8. Do you think that there’s hope for real change in Sri Lanka?

Yes, after 40 years of hopelessness now, there is a real chance for hope in Sri Lanka. First of all, as I mentioned earlier all undemocratic aspects of the 1978 Constitution, must be abolished. If this happens, Sri Lanka has the possibility of bouncing back as a strong democracy as well as a prosperous country. In fact, before 1978 there was a very common prediction the world over that Sri Lanka is likely to be achieving significant and economic and social development, as it then had all the ingredients necessary for that purpose. Now, it all depends on the peoples’ capacity to stay active in political life to ensure that the President and the government will stay on the path that they have promised to travel.

9. You’ve decided to go back for the first time in 8 years, why?

I could now see the dismantling of the apparatus of repression and surveillance. The kind of hunting down of people through secret lists and the use of intelligence and security services for illegal clandestine operations which was the hallmark of the defeated regime, has come to a halt at this moment in time. In fact this is the moment that the people themselves created at great risks to themselves. We, ourselves as the AHRC advocated the very changes that the government has now promised to bring about and we did so almost for the past 20 years under trying circumstances. That impels me to build a closer link to the affairs of my country and to be a part of that change.

10. Are you not worried that it might not be safe for you?

While the Mahinda Rajapaksa regime was in power I have worried about the safety of all those who fought for democracy , human rights and the rule of law and much of the work of the Asian Human Rights Commission was to document attacks against them and to support them in whatever way we could. With the end of that regime, ends also their repressive apparatus. Now, the task is not to allow such an apparatus to raise its head again.

11. What will be the first thing you’re going to do when you get there?

Well, naturally I will want to meet all my friends who have played an active part in bringing about this great change. I will try to obtain a firsthand impression about what has happened and try to gauge what are the likelihoods for rule of law and human rights in the years to come. I also have some family obligations to visit the graveyards of those who are no more and pay my respects, even belatedly.






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