Special Courts, Special Prosecutors and Constitutional change in the Real Country

8 June 2016 12:00 am - 0     - {{hitsCtrl.values.hits}}


“What we have said is that there would be a judicial mechanism that will be established with an independent special counsel.”
–Mangala Samaraweera 
(Sunday Times, June 5, 2016)

The UNP leadership is accelerating on two tracks: accountability and constitutional change. Will the political ammo dump explode?

The Prime Minister summoned the military brass and informed them that the government was to commit itself to an investigation with local judges. What he didn’t make clear is that the local judges would be for a Special Court. Thus the term ‘local mechanism’ is a subterfuge, a diversion. By drawing attention to the adjective ‘local’, the Government seeks to divert attention from the noun ‘mechanism’. What is sought is a new and special mechanism for accountability. Minister Samaraweera has confirmed that there will also be what he calls an “independent special counsel”, which means an office other than the A-G’s Dept. 

The question is why a new mechanism; a Special court? Why a “special” counsel? Why not try those suspected of crimes, according to the existing laws and institutions, namely the Attorney General’s Department and the normal courts--which have been rendered independent by the 19th amendment? Why take exceptional measures?

Let’s not allow anyone to fudge what this means. This means that a bunch of people who (with one or two notable exceptions) in the years of this country’s hour of gravest danger, collaborated with or appeased the fascist Tamil Tigers, or didn’t fight the fascist Tigers or didn’t resist them effectively, have decided to create a Special Prosecutor’s office and Special court to try under a special law, and punish those who stood up for the country, who put themselves on the firing line. Would France have allowed the wartime behaviour of those who fought in the patriotic resistance against fascism, to be decided by those who collaborated with Nazi fascism? If the argument is that the antifascist resistance in France was a foreign, invading force, not a fraternal enemy, and that in Sri Lanka we were fighting a fratricidal war, we may pose the same question of Spain and Italy, where the anti-fascist struggle was a civil war. Would postwar Italy have allowed the anti-fascist partisans of the Garibaldi brigade to be tried for having extra-judicially hanged Mussolini and his mistress?

The world knows what horrors were spawned when Germany was placed under the punitive burden of the Treaty of Versailles. At least there was a semblance of logic there, because Germany had lost WW I. Here, in the Sri Lankan case, the winning army, the winning side, will be hauled up before Special Courts, a.k.a. the ‘local judicial mechanism’. To switch the historical metaphor it is as if, after WW II, the war-winning Allies, especially those of the Soviet Red Army, were sought to be hauled up before the Nuremburg War Crimes trials for excessive force in the battle of Stalingrad and heavy civilian casualties in the liberation of Berlin in 1945!  

The fact that the Special Courts will have local judges and will be set up by a Sri Lankan government only means two things: the blowback too will be internal—in a country that has a propensity for bloody internal conflict-- and will be aggravated by the erosion of the government’s ‘national’ character and legitimacy, because it is in manifest collusion with unsympathetic, hypocritical external entities and susceptible to pro-secessionist, pro-Tiger Tamil Diasporalobbies.   

What the UNP leadership and its external patrons do not seem to understand is that the Sri Lankan armed forces, including veterans, are far more deeply rooted socially, are far more organic, than the government. Every opinion poll for years shows that the military is more popular than any political entity. The Long War has contoured consciousness across generations. The war of national liberation and reunification has far more legitimacy, a historic legitimacy, embedded in the collective psyche of ‘deep Lanka’—the real country—than this government ever will or can.  

A high powered accountability process will reawaken memories of the war on both sides of the ethno-regional divide (what my father used to call ‘the Cadjan Curtain’). It will entrench the enemy image of the (ethnic) Other.

As if the accountability track weren’t dangerous enough, the UNP leadership is trying to rush through a new Constitution under the guise of Constitutional reform, which is what the parliamentary resolution of March 9th has mandated. Going by the recommendations of the Lal Wijenaike Committee report, which the UNP leadership is unsuccessfully plugging as a road-map for the use of the Parliamentary Steering Committee on the Constitution, the PM’s projectis not only to smuggle through those provisions of the original 19th amendment which were struck down by the Supreme Court and carved away by the parliament in 2015, but to effect a deep revision in the foundational ‘Social Contract’ itself.   The crucial article 3 of Chapter 1, setting out the Principles of the 1978 Sri Lankan constitution states: “In the Republic of Sri Lanka sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise”. The Lal Wijenaike recommendations, while making scattered and tangential references to the sovereignty of the people, removes it from its foundational place and substitutes instead the notion of the supremacy of the Constitution.Now the latter concept is fine in moderation and in its place, but it cannot displace popular sovereignty as the most important founding and guidingprinciple. 

In a Republic, the people are supreme and sovereign. What Mr.Wickremesinghe’s UNP is seeking to do is to bury the inspirationalethos of President Jayewardene and Prime Minister R.Premadasa’s UNP, namely the Gaullist model. The late AJ Wilson, Professor Emeritus of Political Science, was correct when he defined the second Republican Constitution of 1978 as “the Gaullist model in Asia”. This model was naturally inspired by the French Republican tradition which ultimately rests on Rousseau’s notions of popular sovereignty and the General Will. 

The current UNP leadership hopes to displace and marginalize the people from the heart of the state. It hopes to overturn the robust French republican tradition and substitute for it instead the Anglo-American tradition of liberal democracy with its inherent suspicion of the people and popular sovereignty. The Anglo-American tradition strives to straitjacket popular sovereignty. Thus the Wijenaike recommendations call for a Westminster parliamentary model (UK) and the supremacy of the Constitution and inter alia the Supreme Court (US).  

The recommendations of the Lal Wijenaike Committee have an even deeper ontological implication. The overwhelmingly larger community on this island speaks one of the world’s most ancient languages and exists as an ethno-lingual collective only on this place on the planet, while facing an existential and geopolitical threat merely 19 miles away. The Wijenaike recommendations will disintegrate the State structure and political order needed to guarantee the legitimate position that the majority on this island is demographically and democratically entitled to.

Is it for this that our soldiers, and we as a society, a citizenry, resisted Prabhakaran’s Tamil totalitarianism and fought and won a war?  It is as if those who resisted terrorism, separatism and Tamil fascism are being politically penalized for having prevailed while those who supported terrorism, separatism and Tamil fascism are being constitutionally compensated and rewarded. What a ghastly ethical inversion and moral travesty! There is still a peaceful democratic option to defeat this subversion and robbery, andcrush this existential threat from within. Any Constitutional distortion and dismemberment can be challenged in the Courts and decimated at a Referendum.People will not split along party lines on a major national issue.They will register a protest vote. As the Latin Americans say: “The People United Will Never Be Defeated!”

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