A Popean caution and the counter-terror comedy of errors

In one respect, there may be a smidgen of truth in former President Mahinda Rajapaksa’s bitter lament in the immediate wake of his election defeat in 2015.

Continuation of sordid political bargains

He complained that he was ‘set on the wrong path’ at the urging of certain prominent political figures close to him who craftily crossed to the Maithripala Sirisena faction when they realized that his Government was doomed. In particular, he blamed the Jathika Hela Urumaya (JHU) for the disastrous alienation of Sri Lanka’s Muslim community following the Aluthgama riots and other calculated measures aimed at dispossessing Sri Lanka’s minority Tamil and Muslim communities.

In part, this was a convenient washing of hands. The elevation of the militant Bodu Bala Sena (BBS) and the protection it got from the reach of the law despite virulent hate speech was due to the singular chauvinism and chicanery of his Presidency, powered by powerful sources closer at home, despite frequent denials of the President’ brother and former Secretary to the Ministry of Defence, Gotabhaya Rajapaksa.

Notwithstanding that fact, the pressure exerted by others outside the immediate Rajapaksa family cabal in that sordid bargaining for power was also undeniable. And it is the continuation of that mindset on the part of those persons influential in the coalition Government which explains why it is committing the very same mistakes as its Rajapaksa predecessor, now roaring for a comeback.

A preposterous tango on the CTA

The twin issues of garbage and counter-terror provide good examples. Perceptive political observers will notice exactly who in President Maithripala Sirisena’s Cabinet is insisting on the Government using a heavy hand in dealing with people rightfully protesting regarding the dumping of Colombo’s garbage on their lands.

So too, the shouting from the rooftops that former Army Commander and Field Marshal Sarath Fonseka should be vested with overall authority to ‘handle’ trade union protestors, released for maximum irony just a few days before May Day. This led to the merciless lampooning of the President no less, with one depiction showing him casting off his civilian clothes and marching towards a military uniform. The point is that, irrespective from where these asinine ideas originate, they rest on the shoulders of the Head of State, attracting wrath from all quarters.

A similar dynamic prevails in regard to the Government’s preposterous tango with the European Union (EU) regarding a proposed Counter-Terror Act to replace the decades old Prevention of Terrorism Act(PTA). As observed last week, the stealthy smuggling in of once discarded offences of espionage et al in the CTA draft approved by the Cabinet masked in deceptive language gives rise to misgivings that this was to mislead careless readers. The Cabinet approval came just before the European Parliament rejected a motion called to defeat the pending approval of restoration of the EU GSP Plus trade facility. Several contradictions in law and the sheer arbitrariness of the draft were examined last week. The insistence is on ‘terrorising’ any person writing or talking in a way that ‘harms’ unity, irrespective of the fact that this draws absolutely no logic from the law and unacceptably chills freedoms of expression. Here too, the insistence can be sourced to the very same points of nationalistic influence that once prominently featured on the Rajapaksa stage.

A pattern of woeful blunders

And the damning culpability of the EU in this regard is undeniable. Indeed the blunders were simple. First, it put a weak Government buffeted by wickedly nationalistic forces including from within its own ranks, into an impossible position. This was to formulate controversial legislation on counter-terror which would ‘balance’ the security of the State and individual rights even though a child could have assessed the fact that the environment was scarcely conducive to such an exercise. And the apparent collusion of in-country representatives of the EU in ‘clearing the CTA sans tough vetting of its contents for compliance to international human rights standards and indeed, Sri Lanka’s own judicial precedents on protection of civil liberties was unforgivable.

Second and unpleasantly so, civil society pressure on governance reform had been weakening from 2015 itself. Very early on, it was warned in these column spaces that a sanguine belief in the Sectoral Oversight Committee to ‘correct’ a deeply flawed CTA was naive. Now, we see the Tamil National Alliance (TNA) helplessly wringing its hands and bewailing that ‘consensus’ reached within that Committee had not been reflected in the Cabinet approved CTA. But its culpability in watching meekly as the pro-governance impetus stumbled and staggered with each and every compromise arrived at is clear.

For the same regressive elements in the old Rajapaksa regime were undermining the Sirisena-Wickremesinghe combo from day one itself. Crucially important factors were bypassed in ‘sunshiny’ equations of Colombo’s EU office dazzled by ‘yahapalanaya’ rhetoric. Warning signals issued by visiting UN Special Rapporters on Torture and the Independence of the Judiciary were disregarded. The bedazzlement was such that the fundamental condition of a consultatively public process in finalizing the draft CTA was not insisted on.

Classic example of ill-informed interventions

Added to this is the enormous culpability of the UN. Its performance is a lesson on how not to intervene in highly sensitive processes absent a proper understanding of local complexities. Seemingly it was on the insistence of certain UN agencies that the draft on counter terror by the Law Commission of Sri Lanka was deemed insufficient for the purpose and discarded. This led to ‘hawks’ in the establishment capturing the process with the end result being this draft CTA, now to be foisted on the people for their manifest sins.

Indeed, the whole sorry process illustrates exactly how adherence to international treaties should not be negotiated between international agencies and a Government. Well intentioned interventionists rushing in ‘where angels fear to tread’, as the satirist Alexander Pope couched it in his inimitable style centuries ago, can make matters worse, not better.

Let this be categorically asserted. If enacted in its present form, the CTA raises grave possibilities of abuse under regimesto-be or (even) under this Government if it wraps the garb of anti-democratic defensiveness around it. But this is not a reality that UN ‘experts’ or the EU will need to confront at any point. Instead its impact will be directly on people unfortunate enough to live here.

The draft CTA came about through a comedy of errors even as Sri Lankans who will potentially be most affected, watched fascinated, furious and powerless. Certainly that mistake must be corrected at least now before it results in irreversible harm.