Date : 2014.08.04

Dr. Nimalka Fernando. President of IMADR, contributed to the national news column in Sri Lanka titled “Civil society: The greatest bugbear, the greatest hope?” .

FULL TEXT

Mahinda Rajapakse knows the power and impact of civil society because he worked with us – Dr. Nimalka Fernando, lawyer and activist

The young Parliamentarian from Hambantota was trying to board a plane bound for Geneva on 11 September 1990, when he was intercepted by an Assistant Superintendent of Police by the name of Kudahetti.The senior Policeman wanted to search the MP’s baggage for fabricated documents likely to be “prejudicial to the interests of national security or promote feelings of hatred or contempt” towards the ruling Government of the day. The Parliamentarian refused to submit to the search and called up his boss instead. After a brief telephone conversation with Opposition Leader Sirimavo Bandaranaike, the MP threw his bags at the Police officers and submitted them to the search.Digging through the leather bag, the Police first encountered rice, dhal, chillies, dry fish and a few tins of salmon, or jack mackerel. This was not unusual, since the Parliamentarian would be camping out at a well-wisher’s apartment in the Swiss city of Geneva, money for the trip being sparse and his mission uncertain.

Under the rations, Police found 11 bundles of papers containing photographs and particulars of missing persons, among these a bundle of pictures of dead bodies. After a two-hour hold up, the MP was allowed to board the plane, but his documentation had been confiscated. They were returned to the MP only about a month later.

A few months later, the SLFP Parliamentarian filed a fundamental rights application accusing Kudahetti of violating his freedom of speech and unlawfully arresting him. Appearing on his behalf was President’s Counsel R.K.W. Goonesekere, who also appeared for Bandaranaike when the J.R. Jayewardene administration stripped the former Prime Minister of her civic rights.

Mahinda goes to Geneva

Mahinda Rajapaksa, the SLFP politician from Hambantota was enroute to the then UN Human Rights Commission, to attend the 31st session of Working Group on Enforced or Involuntary Disappearances being held from 10-14 September 1990. He was carrying 533 documents containing information about missing persons and 19 pages of photographs.

In his petition to court, Rajapaksa said the documents photographs and forms he was carrying pertained to the deaths or disappearance of and injuries caused to certain persons, which he was taking to be produced at a conference in Geneva. These documents, Rajapaksa, the petitioner says, were not “offensive or subversive, but intended to be used to promote the protection of human rights in Sri Lanka”.

With no invitation to speak at the sessions, Rajapaksa and his travel companion, Vasudeva Nanayakkara, only had day passes to enter the Palais des Nations in Geneva, which had housed the UN since 1946. The passes had been procured for the travelling Sri Lankan MPs by Tamara Kunanayakam, then a human rights officer at the UN Centre for Human Rights.Kunanayakam, the daughter of a former Sri Lankan LSSP leader, was happy to put the two politicians up for the duration of their stay in Geneva. Under the Mahinda Rajapaksa presidency, Kunanayakam would serve a brief term as Sri Lanka’s Permanent Representative to the UN in Geneva, before being transferred and leaving office in high dudgeon.

For years, Kunanayakam had been lobbying the UN on Sri Lanka and its record of torture, illegal arrests and disappearances. As the UNP Government in Colombo brutally cracked down on the JVP insurgency, disappearing and killing thousands of young people, Kunanayakam was passionate crusader against State abuse and was easily sympathetic to the Rajapaksa-Nanayakkara duo and their cause.

“Treachery?” raged Mahinda Rajapaksa the younger in Parliament in 1991, when UNP Government members accused him of betraying the country to foreigners. “We have a right to tell this to the world. Tears of innocent grieving mothers compel us to tell their story of pain and sorrow to the world. We will do it today, tomorrow and always,” he charged angrily to John Amaratunga, who was faulting him for internationalising Sri Lanka’s problems.

Disappearances crusader

For two days, standing in the corridors of the session room, MP Rajapaksa lobbied delegations, explaining what was happening in his countries, detailing atrocities perpetrated on the people by the Ranasinghe Premadasa administration. He was filled with righteous anger about the plight of the people in the South and he still believed in the power of the UN. Tireless human rights campaigners like Dr. Nimalka Fernando, who stood beside the young SLFP MP in his campaigns to bring justice to scores of people killed or disappeared during the UNP regime, recall that Rajapaksa entered the UN in the 1990s to bring his case before the world, wearing an INGO badge to gain access into the building. As a member of Sri Lanka’s opposition, MP Rajapaksa could not gain accreditation to speak or enter the main hall of the UN building as a member of the Government delegation. His only option was to go through a recognised and accredited NGO. Ananthi Sasitharan, the TNA Provincial Councillor also used this mechanism to address the UNHRC in March this year. In the 1990s, Mahinda Rajapaksa obtained this pass through the Quaker Peace and Social Witness organisation that maintains an office at the UN in Geneva.

Mahinda Rajapaksa waged his UN campaign against the Government at a time when the UNP’s power was at its zenith, abuse of presidential power was rampant and the space for opposition and dissident movements were shrinking rapidly. Journalists were being murdered, the executive was all powerful and impunity reigned. Those were terrible times and they brought out the activist in MP Rajapaksa. He appeared ready then, to join hands with anyone – even the UN and NGOs, to change the political situation in Sri Lanka.

Fast forward 23 years. The UN Working Group on Enforced and Involuntary Disappearances, that Mahinda Rajapaksa was so anxious to lobby in 1990, has been trying to gain access into Sri Lanka for the past three years. His Government has denounced the UN for interfering in the affairs of a sovereign state and trying to destabilise a democratically elected regime. Under the Rajapaksa presidency, the space for civil society to operate has been shrinking for years, and last month his Government declared full-on war against the NGO community. The battle, like so many wars fought after the separatist conflict ended in 2009, is being waged in the shadows and by stealth.

The war against civil society has been a long time coming. Inch by inch, the Government has reclaimed spaces that were once open, forcing NGO registrations and shutdowns, sowing suspicion and resentment of civil society organisations from their political platforms. The NGO circular, issued by the National NGO Secretariat earlier this month, was intended to strike a death knell for civil society movements. Since war time, the NGO Secretariat has functioned under the Defence Ministry, and so it has remained long after the guns fell silent. The new circular forbids NGOs from going ‘beyond their mandate’ and holding ‘press conferences, workshops and disseminating media releases.’

Under siege

The NGO sector is under siege today as never before. Laws are being drafted to bring Non-Governmental Organisations still operating as private companies under the Companies Act, under the net of the NGO Secretariat. The official and private bank accounts of prominent civil society activists are presently being perused, without authorisation or court order.

From the regime perspective, the NGO sector is an easy target. For years the stage has been set with propaganda and vilification campaigns. NGOs, with their foreign aid sources and love of ‘Western’ values, are obvious stakeholders in the grand international conspiracy against Sri Lanka. After years of rhetoric against civil society, even moderate sections of the populace view the NGO sector with a degree of suspicion and scepticism. Civil society activists are perceived as agents of the West, liaising with diplomats at cocktail parties and striving to keep the situation in Sri Lanka on the international radar, so as to keep attracting donor funds. This new war therefore, may prove a popular one.

Since May this year, unruly mobs of protestors have disrupted training workshops for journalists from the north and east, in Colombo and other parts of the country. Transparency International’s Sri Lanka Chapter had two workshops shut down in Giritale, Negombo and Colombo. The Free Media Movement met the same fate last weekend when it attempted to conduct a training for Tamil journalists on digital security at the Sri Lanka Press Institute (SLPI) in Colombo.

The vehicle the journalists were travelling in was stopped at three checkpoints, including Omanthai, where Police ‘discovered’ a packet containing marijuana near the driver’s seat. The journalists counter-accused an Army soldier of having placed the packet on the seat in full view of at least three scribes. The journalists were detained and the driver was arrested, but as soon as they were released, the scribes resumed their journey to Colombo. Cue the mobs outside SLPI, to disrupt the workshop.

Useful ‘protestors’

These ‘protestors’ have become useful tools for the regime, mobilised at an instant and operating with impunity against individuals or causes unfriendly towards the Government. They are able to gather in high security zones and airports, they have the power to stop trains and private human rights festivals. They have an uncanny way of discovering flight and event schedules, including the place, time and participant lists. The Police never have the power to disperse them or order them off personal property.Finally fearing for the safety of the Tamil media personnel, FMM Convenor Sunil Jayasekera called off the workshop. Shortly before he addressed the media to explain what had transpired, Jayasekera himself received a threatening telephone call, urging him to call off the press briefing or face the consequences. Jayasekera went ahead. FMM Convenors have a history of being forced into exile under the Rajapaksa administration.

Post-war Sri Lanka is full of beautiful facades. Paved walkways, perfectly-manicured parks and restored colonial buildings. Lurking under the new ‘beautified’ Sri Lanka is a much darker reality – militarisation of the north, cruel crackdowns of dissent in the south, saffron terror squads waging war against religious minorities and the complete politicisation of the Judiciary.

Oppressed and fearful, the southern polity has remained mostly silent about this other post-war reality. Opposition parties have been weakened by the power of the presidency or through vicious infighting. The media fraternity has been taught brutal lessons about the importance of colouring inside the lines. Trade unions are struggling to stay in existence, student leaders are being expelled and incarcerated.

Forefront of every battle

Against this silence of the majority, civil society and activist groups – shrinking and small – have been at the forefront of every battle against the regime. Against the impeachment of Chief Justice Shirani Bandaranayake, activist lawyers formed umbrella groups that now function under the ‘civil society’ label. Journalists and media activists have also grouped under civil society banners to be able to pressure and lobby the Government. Citizen movements have joined mainstream NGOs and organisations to crusade for good governance. Where impunity rages and the rule of law is severely eroded, the Bar Association of Sri Lanka under its activist President and firebrand lawyer, Upul Jayasuriya, has tried to step in to fill the gaps.

In a country where the dominant narrative as dictated by the ruling powers goes against so-called Western values of human rights, democracy, transparency and individual liberties, civil society dangerously and vociferously persists in championing them. These organisations openly submit grant proposals to Western Governments and societies to promote these same values in Sri Lanka.

As the Government faces censure internationally over its appalling human rights record, civil society and NGOs still openly engage with the international community, collating and passing on valuable information and publicly addressing multilateral forums to highlight violations and abuse in Sri Lanka. Opposition political parties run scared of the subject, but civil society activists insist on placing the human rights debate in context, in defiance of the Government’s conspiracy theories.Under an increasingly intolerant regime, the situation could not be allowed to continue. Civil society, even persecuted and significantly poorer in resources and manpower, is proving too large a threat to ignore indefinitely. It was really only a matter of time.

Abolition campaigns

Yet, in a strange twist, as people continue to lose confidence in politicians and political parties, the greatest hope for change has also emerged from a civil society movement. The face of the National Movement for Social Justice (NMSJ) may be the moderate scholar monk Maduluwawe Sobitha Thero, but the organisation has attracted top constitutional lawyers, academics, journalists and civil society activists.

Working quietly and tirelessly behind the scenes, lawyers like Jayampathy Wickremaratne PC and J.C. Weliamuna have been instrumental in working out the modalities and legislative amendments to abolish the executive presidency. Last week, at the New Town Hall, Sobitha Thero, Wickremaratne and Co. unveiled their roadmap for the abolition, moving the debate out of the abstract months ahead of a likely presidential poll early next year.

The NMSJ is proposing a return to the parliamentary system of governance within six months of the presidential election. Still scarred by promises of abolition made and broken by candidates at the 1994 and 2005 elections, the framers of the NMSJ platform have determined that the still unnamed common candidate will have no discretion in deciding on the timeline for abolition. The legislative draft, amending the constitution to remove the presidency will be included as part of the candidate’s election manifesto. Wickremaratne explained that specific dates for the step-by-step process would also be drafted into the manifesto.“Within six months of assuming office, the presidency will lapse automatically, allowing Parliament to appoint a nominal president,” Wickremaratne said. The manifesto will also include a specific date – exactly one month after the date elections are held – for the constitutional amendment to be presented to Parliament, he added.The first proposed constitutional changes will include the Abolition of the Executive Presidency, the establishment of a Parliamentary system of government and the reinstatement of a strengthened 17th Amendment to make key institutions free of political interference.

The event convened by Sobitha Thero attracted a veritable glitterati of the Opposition, from former President Chandrika Kumaratunga to Sarath Fonseka and even ousted Chief Justice Shirani Bandaranayake. The TNA, the JVP and even the JHU, which is a Government ally, participated in the event, which also drew media groups, student leaders and academic trade unions, raising hopes that the platform could successfully bring together all these mostly dissident groups.

Common candidacy vs. common candidate

Wickremaratne insisted during his remarks that the Opposition movement for the abolition of the Presidency would focus not on a common candidate, but a common candidacy. The idea being that the issue was to be bigger than individuals in the game. Tellingly, no politicians addressed the event. Academics like Dr. Deepika Udugama and veteran Editor of the Ravaya, Victor Ivan made remarks about constitution drafting and nation building. Ivan made colourful and insightful remarks during his speech, noting that after he defeated Velupillai Prabhakaran in 2009, President Rajapaksa became gigantic in political stature, reducing all of his opponents to ‘angutumitto’ or midgets by comparison.“How do midgets take on a giant? Perhaps if they all stand upon each others’ shoulders, they could come close to putting up a fight?” he quipped.

Yet, despite the NMSJ’s hopes about candidacy vs. candidate, a grim political reality remains. There is a reason for the palpable public and media excitement at the sight of Kumaratunga or Sobitha Thero or even JVP Leader Anura Kumara Dissanayake whose popularity has shot through the roof in recent times, even amongst the urban elite. These leaders are mobbed by people and journalists alike, wanting to hear their thoughts on the present system and how change can be effected. The people are desperately seeking alternatives to the status quo, but an undisputed, trustworthy choice is yet to emerge.

The Sri Lankan electorate will seek out individual magnetism to rival Mahinda Rajapaksa in choosing their next president, even when it comes to the president that will do away with the system. Against the monumental cult of personality that is the Rajapaksa brand, ‘candidacy’ alone will stand no chance. It remains paramount therefore, that while intellectuals continue to frame the abolition debate and construct its modus operandi, their sights are also set – and quickly – on a personality with the acumen and skill to mobilise popular support in a matter of months and sell abolition to the electorate.Magnetism and personality remain important to the common Opposition campaign, because the burden will rest on the Opposition to frame the contours of the presidential contest in this next round. Lacklustre, easygoing prospective contenders will stand no chance against the Mahinda Rajapaksa charm offensive and people power.

Hope remains

Despite the challenges ahead, hope remains. In 1994, against all odds an apolitical movement, made up of journalists, lawyers and civil society activists propelled Chandrika Kumaratunga, untested and unknown, into high office. The ‘Chandrika wave’ came about because of and in spite of the awesome power of the executive presidency.

History has already proven that abolition can be a valuable rallying point, with Opposition political parties becoming mere conduits necessary to garner grassroots political support. If this political battle at the next election is waged and lost, the movement for abolition will continue, perhaps lying dormant until the next time it can occupy space in the political mainstream. It takes extraordinary circumstances to bring intellectuals, academics and civil society movements to this point. It takes intolerable abuse of power and systemic breakdowns. Democracy movements coalesce and mobilise in these constricted spaces. It happened in 1994, after the country had lived through 17 years of corrupt UNP governance.

Once again, civil society activists and dissidents are living through terrible times. Again, presidential power is at its zenith, abuse of power is rampant and impunity reigns. It is perhaps at these times that their light shines brightest; the last, best hope to give grievance a voice, when all others are silenced. As Dr. Nimalka Fernando pointed out in her scathing and insightful critique of the NGO circular from the Ministry of Defence, President Rajapaksa knows this power. He channelled it himself once, 20 years ago.