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Sri Lanka: Under Rajapaksas' Watch, Rule of Law Suffers the Onslaught of Politics
Sri Lanka: Under Rajapaksas' Watch, Rule of Law Suffers the Onslaught of Politics
Sri Lankan opposition party workers erect a cutout of their presidential candidate Maithripala Sirisena in the north central town of Polonnaruwa on 30 November 2014. AFP/Lakruwan Wanniarachchi
Report 272 / Asia

Sri Lanka Between Elections

Sri Lanka’s 17 August parliamentary elections will test the country’s fragile democratic opening. With the hardline Sinhala nationalism of ex-President Mahinda Rajapaksa challenging the “good governance” agenda of the United National Party and President Sirisena, the outcome will affect chances for reconciliation and lasting resolution of the country’s long-running conflicts.

Executive Summary

A half year after Maithripala Sirisena’s stunning defeat of President Mahinda Raja­paksa raised hopes for democratic renaissance, the complexities of partisan politics, and Rajapaksa himself, have returned to centre stage. Sirisena’s initial months with a minority government led by the United National Party (UNP) have opened important political space: robust debate and criticism have replaced the fear under Rajapaksa, and important governance reforms have been made, but much remains undone. By initial steps on reconciliation, the government set a more accommodating tone on the legacy of the civil war and the ethnic conflict that drove it. But divisions within government and Sirisena’s failure to take control of his Sri Lanka Freedom Party (SLFP) prevented deeper reform and allowed Rajapaksa and his supporters to mount a comeback. With Sirisena opposing Rajapaksa’s return, the 17 August parliamentary elections will test the continued appeal of the ex-president’s hardline Sinhala nationalism and give a chance for the fresh start that lasting solutions to the country’s social divisions require.

Before running out of steam in June, Sirisena’s first six months saw notable achievements. Most important was parliament’s April passage of the nineteenth amendment to the constitution. Largely fulfilling the central pledge of the joint opposition campaign, it considerably reduced presidential powers and established independent oversight commissions. Though the original draft was watered down, the amendment is a welcome move away from authoritarianism and could assist in re-establishing the badly-damaged rule of law. As promised in their election manifesto, Sirisena and his UNP partners also launched scores of investigations into alleged major fraud and abuse of power by officials of the former government. While the unprecedented scale of the anti-corruption drive raised public expectations, the lack of indictments thus far has fed rumours of backroom deals and growing doubts that the institutional and political obstacles to effective prosecutions can ever be overcome.

The bright hopes of the government’s initial months were increasingly tarnished by unclear, ad hoc policies, frequently contradictory policy statements and missed deadlines for pledged reforms. As parliamentary elections, originally promised for June, were postponed, the coalition that elected Sirisena began to fragment. While the UNP and smaller parties urged him to dissolve parliament and hold elections after passage of the nineteenth amendment, he spent months trying and failing to win over the SLFP, whose nominal leadership he assumed after winning the presidency, following a decade of Rajapaksa at its helm.

The SLFP, which has a large majority in parliament, resented Sirisena’s unprecedented experiment with a “national government” dominated by its arch-rival UNP. Many SLFP parliamentarians remain loyal to Rajapaksa; others see the ex-president as the party’s best chance to retain its majority in the next parliament, given his popularity among Sinhala voters. After months of resisting Rajapaksa’s selection as the prime ministerial candidate of the SLFP-led United People’s Freedom Alliance (UPFA), lack of support in the party forced Sirisena to yield in early July.

Sirisena has since made it clear he opposes Rajapaksa’s candidacy and will not appoint him prime minister, even if the UPFA wins an unlikely majority. The ex-president’s opponents within the SLFP, along with smaller parties, have joined a new version of the UNP-led coalition that brought Sirisena victory in January, now re-energised by the threat of a Rajapaksa comeback. With the UPFA arguing the UNP threatens national security and supports Tamil separatism, the election will test the strength of Rajapaksa’s brand of Sinhala nationalism, as well as the depth of public concern over corruption and abuses of power. Even if he cannot become prime minister, Rajapaksa’s leadership of a large Sinhala nationalist bloc in parliament could make it harder for a UNP-led government’s to act as promised on reconciliation and accountability.

The Sirisena-UNP government set a new, less Sinhala triumphalist tone on ethnic issues and took some steps for reconciliation: releasing a number of Tamil political prisoners and limited amounts of military-occupied land in Tamil areas, while reducing the presence, though not size, of the military and its involvement in governing the north and east. Despite growing frustration among many Tamils, larger moves have been put off until after elections, as has action on alleged war crimes by both the military and the defeated Tamil Tigers. The government promises a credible domestic inquiry that meets international standards, but doubts about its willingness and ability to tackle institutionalised impunity and prosecute war crimes are widespread and well founded. Successful prosecutions require significant legal and institutional reforms and management of resistance from military leaders and nationalist parties.

The UN Office of the High Commissioner of Human Rights (OHCHR) is due to deliver its long-awaited war crimes report to the UN Human Rights Council (HRC) before it meets in September. At that session, the newly-elected government should commit to the legal reforms needed to effectively prosecute serious human rights violations suffered by all ethnic communities, including war crimes; to pursue prosecutions with adequate witness protection and international involvement; and to consult widely with victims, survivors and community groups on its longer-term program of transitional justice, including a possible truth commission. To be effective, these processes will require consistent international scrutiny and participation, including OHCHR assistance to investigations and continued monitoring and reporting to the HRC.

The parliamentary elections offer voters the chance to renew the mandate for change they gave Sirisena and the UNP in January. A strong showing by the Raja­paksa-led UPFA, however, would complicate the president’s plans to form a broad-based “national” government between the UNP, smaller parties and the reformist wing of the SLFP and place obstacles to further progress on much-needed governance reforms and reconciliation. Sri Lanka’s chance to finally start on the road to a sustainable resolution of the country’s decades-long ethnic strife, including a negotiated political settlement, depends on the outcome.

Colombo/Brussels, 12 August 2015

Op-Ed / Asia

Sri Lanka: Under Rajapaksas' Watch, Rule of Law Suffers the Onslaught of Politics

Originally published in The Wire

The politically-motivated Presidential Commission of Enquiry has been distorting politically-connected criminal suspects into victims, and investigators and legal reformers into criminals.

Sri Lanka, long-plagued by political violence and near-complete impunity for crimes by the state and pro-state forces, now faces a new assault on justice and the rule of law. There is a systematic attempt to rewrite the history to make politically-connected criminal suspects into victims, and investigators and legal reformers into criminals.

The unprecedented efforts of the government of Gotabaya Rajapaksa – most strikingly through his presidential commission of enquiry into so-called “political victimisation” – threatens to do more than just eliminate the possibility of justice in the specific cases it is considering. These specific cases relate to that of political allies of the state, and in instances where Rajapaksa family members are being rescued from prosecution. In doing so, it risks distorting judicial and police procedures, by which the very existence of a meaningful justice system is cast into doubt.

International human rights watchdogs have understandably expressed concerns about the return of the Rajapaksa family to power, given the grave crimes committed during the years of Mahinda Rajapaksa’s presidency from 2005–15. A year into the presidency of his brother, Gotabaya, however, the signs suggest that the threat to dissenting voices and political opponents will, at least at first, be through more subtle means than the murders, assaults and enforced disappearances used to silence critics during their first regime. Legal attacks and legalised lies – not bodies in the street – seem likely to be the preferred means of destroying their opponents. The world needs to be alert to this and to find ways to respond.

International human rights watchdogs have understandably expressed concerns about the return of the Rajapaksa family to power.

Entrenched Impunity

From the first of its multiple post-independence insurrections in 1971 through to the end of its horrific 26-year war with the separatist Liberation Tigers of Tamil Eelam (LTTE), Sri Lanka suffered the gravest of crimes and political violence by state and non-state forces alike. Scores of political leaders were assassinated, hundreds of suicide bombings and massacres, tens of thousands of enforced disappearances and tens of thousands of civilians were killed in the final few months of fighting the Tamil Tigers.

While some LTTE members were prosecuted for terrorist attacks over the years of their failed separatist struggle, just a handful of cases involving police and military and pro-government paramilitary forces have ever been successfully prosecuted.

There were promises – and some limited hopes – that this would change when a new government came to power in January 2015, following the surprise defeat of president Mahinda Rajapaksa by his former ally Maithripala Sirisena.  The government Sirisena formed with the backing of his prime minister Ranil Wickremesinghe – the leader of Sirisena’s long-time opponents, the United National Party (UNP) – pledged to its own citizens and to the United Nations that it would rebuild the independence of the police and judiciary and end institutionalised impunity.

While no progress was made on the most controversial proposal – a criminal tribunal with international assistance to prosecute crimes committed in the final years of the civil war – a whole host of investigations into other high-profile political crimes, long-stalled in courts or buried in police files, began to move.

Released from its former political restrictions, the Criminal Investigation Department, along with other specialised units of the police, vigorously pursued scores of high-profile cases of murder, abduction, disappearances and large-scale fraud committed during Mahinda Rajapaksa’s presidency.

Strong resistance from the military, whose intelligence units were implicated in numerous of the so-called “emblematic cases”, skilful legal manoeuvres by the Rajapaksas, and various alleged behind-the-scenes political deals ultimately left the most important cases unfinished by the time Gotabaya Rajapaksa was elected as president in November 2019.

Facing a major challenge from multiple high-profile cases implicating the family, their allies and police and military units under their commands, the new administration chose the bold path of directly challenging the reality of powerful and widely publicised evidence.  The government launched a campaign to discredit the evidence first by carefully cultivating public opinion through accusations of nationalist Buddhist monks and family-backed media outlets, who accused key investigators of being foreign collaborators, in the pay of NGOs.

Then on 22 January 2020, President Gotabaya Rajapaksa appointed a quasi-judicial body, Commission of Inquiry, to probe alleged political victimisation of members of the armed forces, police and public service between 2015 and 2019. The Commission has been chaired by a retired judge of the Supreme Court, whose previous conduct was examined by the apex court itself, and found worthy of disciplinary action. The other two members are another retired judge and a retired inspector general of police who served as an advisor to former President Mahinda Rajapaksa, who is now Prime Minister under his brother, President Gotabaya Rajapaksa.

Several international watchdog groups, including Amnesty International and Human Rights Watch, have drawn the attention of the United Nations Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence to the adverse impact of the commission on judicial proceedings against those charged with “serious human rights violations”.

To read the full article, go to The Wire


Senior Consultant, Sri Lanka
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K. Mudiyanse (Pseudonym)
Sri Lankan researcher and rights activist