November 2023

Late But Still Not Too Late - Jehan Perera

Jehan Perera Colombo TelegraphThe government is coming up with many new laws, some of which have been positively viewed and others negatively. Among the positives have been the new anti-corruption law and the truth commission bill with the latest being the Office for National Unity and Reconciliation (ONUR) bill. The negatives, however, outnumber the positives with the Online Safety bill and the Anti-Terrorism Act heading the list. They are both meant to suppress protests, both verbal and on the ground. There are other controversial laws hovering in the background, including the NGO control bill and the electoral reforms bill that are still to be presented to the general public or to parliament. What is common to these laws is that they have been prepared without transparency by unknown figures who keep to the background.

The ONUR bill which saw the light of day about a month ago has come without any fanfare. This law should not be confused with the proposed truth commission that the government has been promising to establish for about a year. The ONUR bill is a very broad one encompassing ethnic, religious and social harmony issues. The office that is set up will be mandated to make necessary recommendations to the government and relevant authorities towards achieving national unity, reconciliation, and durable peace in the country and formulate a national policy and national action plan on reconciliation and coexistence. By way of contrast, the truth commission that has been proposed would be focused on the period of the three decade long internal war that was fought most of all in the north and east of the country.

The ONUR bill proposes to establish an office with eleven members. The office will consist of one ex-officio member not below the rank of an Additional Secretary to a Ministry and ten others based on the recommendations of the Ministers. All members are to be appointed by the President. Any individual who wrongfully resists or obstructs any person attached to the office from carrying out duties or willfully provides false information to the office will be considered to be committing an offence of contempt against the authority of the office, according to the bill. Where the Reconciliation Office has reasonable grounds to believe that a person has committed the offence of contempt against the authority of the Reconciliation Office, the Reconciliation Office shall report such matter to the Court of Appeal. The problem is that the members appointed to the office will not be independent by the fact of being selected by government ministers and appointed by the president. 

Partisan Appointments
As a result, those who will be selected to be ONUR members can be politically partisan individuals who will use the plethora of powers they are entrusted with for highly partisan purposes. The proposed ONUR office follows the recent pattern of new institutions being created in which those who will head them are to be appointed by the president at his discretion. The Online Safety bill has provision for the five commissioners to be selected by the president at his discretion. They were to be empowered to decide on what constitutes hate speech and causes injury to people and whether they need to be subjected to punitive action. This power of appointment has been challenged in the supreme court where petitioners have sought that the power of appointment be given to the Constitutional Council rather than to the president. 

The constitutional council was established to ensure that those selected to the positions of state authority should be politically independent to the extent possible. When it was first established under the 17th Amendment the concept of the constitutional council was welcomed unanimously by parliament. However, when successive government leaders found that the arbitrary powers they once wielded with regard to making appointments to high offices of state was taken away from them, they tried their utmost to undermine the constitutional council. As a result, the 17th amendment suffered repeal on two occasions but has been brought back by the 21st Amendment. Unlike previous governments that repealed the laws that set up the constitutional council, the present government is more subtle in seeking to make its existence superfluous by ignoring it. 

It is an unfortunate possibility that even laws that could be used to do good, such as the ONUR bill, can end up being used for partisan purposes. This is what has happened in the case of the ICCPR Act. This was a law that was meant to give effect on the ground to the world renowned International Covenant on Civil and Political Rights. However, the manner in which this law has been used is a travesty to human rights that the ICCPR was meant to protect. In Sri Lanka it has been used to persecute writers, journalists and actors who have dared to question the ethnicised Sri Lankan state that gives priority to the majority community. Those who have been victimized by the ICCPR Act have spent months and years in jail without bail on the grounds that they crossed the threshold of hate speech prohibited by the ICCPR Act.

The members selected under the ONUR Act need to be non-partisan as envisaged by the 21st Amendment. There is a possibility of the ONURAct, which gives the Office of National Unity and Reconciliation broad powers, being abused to harass those who are political and ideological opponents, in the manner that the ICCPR Act has been abused. There are many potential flashpoints that could lead to ethnic and religious tensions unless they are handled judiciously. The possible flashpoints include the archaeological sites that are being discovered in the north and east of the country, with the pressure to turn them into living religious sites, even though hardly anyone of that religion live in the area.

The conflict in Kurundi in the north over a Buddhist temple being built on top of an archaeological site has caused sufficient tension that a judge has fled the country for trying to stop this encroachment. There is also the tension surrounding the issue of grazing lands in the east of the country which are now being claimed by those who come from outside. There have been images of cattle lying slaughtered in the fields, while their owners mourn the loss of their economic assets. It is important that the government takes steps to prevent a recurrence of the past, where those fields became human killing fields in the course of the three-decade long war.

Despite the president having made his position clear on these issues that plague the country, there is no follow up. The president has said that private individuals and organisations have no right to encroach on lands that do not belong to them. However, the problem lies with the lack of implementation. Unfortunately, the president himself undermines his own good intentions by not adhering to the constitutional norms such as respecting the right of the constitutional council to make appointments to high state offices. This serves to undermine the independence of state institutions, the rule of law and the justice this would afford to all. Instead of trying to act on his own, the president needs to forge a multi-partisan consensus with the opposition political parties and civil society to ensure good governance in the country. It is late in the time remaining, but still not too late.