The Asian Human Rights Commission urges prompt action from IGP on the case of missing journalist, Prageeth Ekanaliyagoda

 Prageeth Ekanaliyagoda has been missing since the 24th of January 2010. His wife made a statement to the police on the 25th and sought their intervention and investigation into the matter. She has also made complaints to other Sri Lankan authorities. She made a further statement to the Human Rights Commission of Sri Lanka. A complaint has also been made on her behalf to the United Nations Working Group on Disappearances. However, up until now, there is no significant action taken to find the whereabouts of Mr. Ekanaliyagoda by the police or any other Sri Lankan authority.

The following are the actions any police authority would usually take in the case of complaints relating to missing persons, which the Inspector General of Police (IGP) can also take at least now.

1. Appoint a special unit of inquiry from the CID to investigate this matter and to make a report to the IGP on an urgent basis.

2. Cause public notices to be exhibited through radio, television and all other avenues, informing the public to provide the police with any information that they may have or come across about this person or incident.

3. As this is a case of a well-known journalist whose publication Lanka E-News has been subjected to political attacks and he has himself written articles relating to political matters, the IGP should seek a special report from director of the intelligence unit as to whether he has been detained or otherwise taken by any intelligence unit, paramilitary unit or an underground unit for whatever reason.

Prompt action on the part of the Inspector General of Police and any police unit that should usually deal with such complaints are needed when complaints are made about disappearances of persons. We urge the Inspector General of Police to take these actions and to keep the public informed about all the developments relating to this investigation.

Source:IGP urged to act promptly in Ekanaliyagoda’s case

“Ekanaliyagoda’s family constantly told the investigating authorities and the public through the media that they do not suspect any other reason for his disappearance except for political revenge.”

The disappearance of Pregeeth Ekanaliyagoda, a political analyst, journalist and visual designer, attached to LankaENews; the arrest of Chandana Sirimalwatta, the editor of the Lanka newspaper and the assassination of Chandaradasa Naiwadu, the JVP Urban Council member at Ambalangoda are among the acts of violence reported during the election for the executive presidency in Sri Lanka. They were all persons who supported the joint opposition campaign on behalf of the retired army commander, Sarath Fonseka. The issue of violence in the election was raised at a press conference organised by the Commissioner for Elections this week. His explanation was that since the adoption of the 1978 Constitution the type of politics seen during the election is quite normal and that even in future elections a similar pattern of violence will continue. There has not been any attempt by the government to investigate any of the incidents mentioned above or any other acts of violence.

All three persons mentioned above are, or were, intellectuals who represent different points of view and are persons who dared to express their opinions even in the midst of a very intense culture of political violence. What is most saddening in the suppression of such voices which are trying to rise up against a general climate of violence and demoralisation and trying to develop a discourse on politics by expressing their own points of view for the consideration of the electorate. The case of the journalist and political analyst, Pregeeth Ekanaliyagoda clearly demonstrates the kind of violence that is used against the voices of reason.

“Sarath? Mahinda? Or us?”

Pregeeth Ekanaliyagoda wrote several articles in LankaEnews in the months prior to the election on the 26th January. He tried to engage his readers in a discussion on issues which were part of the public debate on the forthcoming election. In November 2009 he wrote an article entitled, “Sarath? Mahinda? Or us?” In this article he tried to enter into the debate that was taking place at the time about the entrance of the retired general, Sarath Fonseka as a candidate for the election. By using the debate that was taking place at the time he tried to demonstrate that the issue was not really about the two prominent candidates which were the incumbent president, Mahinda Rajapakse and Sarath Fonseka. He tried to highlight that the election was about ‘us’, meaning the people. He tried to reason out that what is at stake for us, the people in the election and the best ways of serving the interests of the people through the election. He tried to raise the discussion on the presidential election beyond personalities and into the issues that should concern the people.

He tried to engage in a discussion on dictatorships which was one of the issues of the election. One of the speculations against the retired general, Sarath Fonseka entering into politics was that, he being a military general, could turn out to be a dictator if he came into power. Ekanaliyagoda did not dismiss the argument lightly. He tried to bring in discussions about political experience from around the world to discuss the issue of dictatorships. He spoke of two types of dictatorships; one where the military establishes a direct dictatorship and another where the government elected through democratic means adopt the practices of a dictatorship. The issue for the people was to avoid the actual practice of dictatorship and for that they should look into the indicators of a dictatorship.

By examining dictatorships in Burma, Iran, Indonesia, Libya, the Sudan and Somalia he tried to bring to notice some of the practices of the dictatorial regimes. He identified the following: the lack of respect for public opinion and the law was one of the factors he identified in a dictatorship. He also indentified a lack of respect for the parliament and the judiciary. He further identified the lack of space for people to express and organise themselves as trade unions and other organisations furthering the interests of the people and the freedom of the civil society to actively participate in the life of society.

Having identified these factors as common experiences in countries that are ruled by a dictatorship, whether they are dictatorships which were brought about by the military or by governments initially elected democratically, he pointed out that all the features of a repressive society are present in Sri Lanka now. He pointed out that there is no respect for public opinion or the law within the country. He further pointed out the absence of the space for parliamentary democracy within the Sri Lankan context. He went on to enumerate how there is repression against people who engage in normal activities of furthering the interests of the people such as trade unions, opposition political parties, civil society organisations, those who engage in human rights work and the like.

Thus, he returned to the original question of what was at stake for the people of this election. He argues that what is at stake is to defeat these practices and to bring back the freedom which gives people the space to participate in political life which guarantees media freedoms and opens space for civil society to engage in resolving societal problems.

In this manner he tried to take the arguments between military dictatorships or democracy, not purely by those who claim to be democrats but on the basis of the policies that they advocate and the policies that are needed for society at this time. As an analyst and an intellectual he was trying to engage society on an intelligent discourse on the issues they should try to resolve in the coming elections.

He concluded his article by stating that Sri Lanka does not need a wretched dictatorship like Burma and dozens of other countries which have those kinds of regimes. Sri Lanka also did not need the Mahinda Chintanaya or any other kind of dictatorship.

“ Sensitive Leader”

In an article written in December Ekanaliyagoda tried to discuss an advertisement that was commonly used on television at the time which stated that people should vote for the sensitive leader, meaning Mahinda Rajapakse, the incumbent president. In this article Ekanaliyagoda tried to analyse what was meant by a ‘sensitive leader’.

First he tried to elaborate on the concept of sensitivity and insensitivity in political life in terms of the sufferings of the people. He began with the issue of the tsunami which affected Sri Lanka badly and pointed out that during that time one of the most saddening aspects was that there were people who were willing to steal from the victims. He said that the exhibition of this tendency during this great tragedy point out a tremendous insensitivity to the suffering that had become part of the Sri Lankan psyche. The capacity, even to rob from people in a natural calamity he saw as an exhibition of tremendous breakdown of morale within Sri Lankan society. Then he went on to discuss the very serious illnesses such as dengue fever, swine flu and other epidemics that affect the young. Accompanied with such tragedies is also the revelation of fraud and attempts to earn commission from the purchase of medicines and other basic needs of the people.

That again was a manifestation of an enormous morale breakdown within society and this is reflected in the behaviour of the ministers and others who engage in such practices on behalf of the government. Dealing with such questions of insensitivity was something very much needed within the country.

Then he discussed the common news items which appeared often of suspects who are killed in custody under the pretext that while they were being taken by the police to show where they had hidden their loot they attacked the police who had to defend themselves. Such a blatant use of violence within the policing system itself and the tolerance shown to such stories by society was a clear manifestation of the insensitivity that has developed within Sri Lanka. He discussed the insensitivity in the enforcement of the law and the disregard of the courts which has become quite an entrenched part of the behaviour pattern within the country. He showed that on matters that involved huge sums of money there does not seem to be any kind of sensitivity or patriotism exhibited by the political leaders of the country.

He then went on to examine the killings of media personnel on orders from those in power and the fake condemnations of such killings without taking any steps to ensure that justice is ever done in these cases. Mentioning such killings such as the assassination of the well known journalist, Lasantha Wickrematunge he mentioned that the behaviour towards the media and the critics is almost like that of Caligula in the Roman Empire. Journalists are killed or assaulted in broad daylight or otherwise intimidated and this was not a climate of sensitivity. He also discussed the foreign debt and other issues of serious financial frauds that had taken place in the country as an indication of the absence of a political sensitivity. Thus, Ekanaliyagoda tried to develop a discourse on political sensitivity speaking of what should, in fact, be the behaviour of a sensitive political leader towards the suffering of the people within his country and what is actually found in the country.

“Should Mihina’s government have an extention”

His third article was in early January where he discussed the issue as to whether Mahinda Rajapakse’s government should have an extension. He discusses the work of the present government, particularly on the issue of the main allegation against the government which is corruption. Giving details of the ever increasing corruption within the government and that all aspects of national life being involved in these affairs he argued that the country would not benefit from a further extension of the government as it would only mean a continuance of the pattern of corruption that is entrenched within the country.

He argued that no plan of action has been put forward by the government with the promise to end corruption. No legal measure has been proposed in order to deal with the problem. Instead the entire machinery of the state has been made ineffective against any act of corruption and this was contributing to a climate of corruption within the country. Unless this trend is stopped it will damage the economy and the future of the nation, was his main argument against allowing the existing regime to continue in power.

Creating political discourse

The three articles that this political analyst has written within the last three months before his abduction indicates an attempt to involve the public in a political discourse on issues that he considered to be important.

A political discussion within a country cannot take place unless there is space for thinkers, writers and analysts to put forward their views and for the readers to have various views to consider. Having such serious minded analysts enhances the capacity of others to have different views and thereby to deepen the political discourse within the country.

The silencing of analysts and thinkers would only strengthen the argument made by such people that a climate for proper development does not exist presently . That development requires the serious participation of the thinking elements within society, in order to give their points of view on all aspects of life, so that an enlightened approach could prevail i to support the betterment of the conditions of the people.

Ekanaliyagoda’s family constantly told the investigating authorities and the public through the media that they do not suspect any other reason for his disappearance except for political revenge. Under these circumstances there is even greater obligation for the government to investigate this disappearance and other acts of violence that is taking place in the country. The election commissioner has warned that other elections in the country are likely to repeat the same pattern of violence.

It is now the government’s turn to demonstrate its capacity to change the course of the violence and it is the duty of the international community to raise the issues of the disappearance and violence and request serious investigations and redress for victims of such violence.

Source:Disappearance of a political analyst critical of the president

On the 26th January the election for the position of Executive President was held in Sri Lanka and the election commissioner declared the incumbent president, Mahinda Rajapakse, as the winner. The common candidate for the opposition, retired general Sarath Fonseka, rejected the results stating that the announced results were false due to the prevalence of violence, electoral fraud and tampering of the counting process itself. The commissioner while announcing the results to the nation in a televised message stated in strong terms that he was subjected to severe pressure and humiliation to an extent that he was unable to bear it any longer. All commentaries on the election commissioner’s speech interpreted it to indicate that he was not satisfied with the conditions under which he had to carry out his duties in conducting the election in a free and fair manner.

Very clearly, the question as to whether Sri Lanka is any longer capable of conducting a free and fair election has been raised in this election. It is not only the electoral process that is under challenge but the very process of receiving, preserving and counting of the ballot at the commissioner’s office itself which is the issue that has been prominently raised. Besides this, the enormous abuse of state resources by the government for its electoral purposes and particularly the blatant abuse of the state media for direct propaganda to request people not to vote for the opposition candidate, in defiance of the commissioner’s direct interventions, have all contributed to the creation of the overwhelming impression that the conditions for a free and fair election were not observed during this election.

The problem of the difficulties in ensuring a free and fair election was recognised previously. In 2001 the amendment to the Sri Lankan Constitution of 1978 was passed in the parliament with rare unanimity which, among other things, created a Constitutional Council in order to ensure proper appointments to several important public institutions with the view to preserve professionalism in the government service. This was the result of a widely held realisation that political interference which had crept into the public service since the introduction of the executive presidential system in 1978 has contributed to the deterioration of standards in all public services and this deterioration was referred to as ‘politicisation’. This simply meant direct interference by the executive president and his agents into the running of the public service to an extent to make it impossible for it to function professionally.

Among the institutions that were recognised as being polluted by ‘politicisation’ was also the department of the commissioner of elections. Under Article 3 of the Constitution an amendment was introduced regarding the election commissioner. Under this article it was legislated that ‘there shall be an election commission consisting of five members appointed by the president on the recommendation of the Constitutional Council, from among persons who have distinguished themselves in any profession or in the field of administration or education. The President shall on the recommendation of the Constitutional Council, appoint one member as its chair.’

The governments since 2001 have refused to comply with this constitutional provision. The present commissioner of elections who was appointed to the position before this amendment was passed reached his retirement age in 2002. However, as no election commission was appointed according to the new provision he had to continue in office due to the absence of a substitute. On several occasions he publically requested permission to retire and as there was no satisfactory response from the government he even went before the court and sought permission to retire. The court refused his request on the basis that until a substitute was appointed under the constitutional provisions he had to remain in his post. Even the courts did not intervene to ensure that the government complied with the constitutional provision to appoint an election commission.

The failure on the part of the government to appoint an election commission consisting of five members nominated by the Constitutional Council has been perceived by all observers as a ploy to prevent the conduct of free and fair elections without political interference into the working of the election commissioner’s office. It was this situation which has led to the final outburst of the commissioner in which he voiced his frustrations to the entire nation in announcing the election result on the 27th January. Several of his comments are reproduced here due to their importance on any future discussion on this issue. (Translated from Sinhala by Roshan Fernando, quoted from Lanka Guardian).

“Under the empowerment of the Elections Commissioner as indicated in the 17th Amendment to the Constitution, I issued specific guidelines to the state media that were duly ignored. I then installed a Competent Authority for the state media who was completely disregarded. I then met the heads of state media but to no avail. I realized that this was a hopeless cause and so I had the Competent Authority removed.”

” I was able to note that during the election, many state institutions operated in a manner not befitting state organisations.”

“Some blamed me saying that my task was to ensure that the ballot boxes were safe and to ensure that the counting was done right. But under the circumstances I faced today, I could not even ensure the safety of even one ballot box. I did my duties during this time under great duress and mental agony.”

” I hereby state that the situation has reached a dangerous level that is beyond me. I am also advanced in years and have served in this capacity for eight long years so I only ask that I be released from this thankless duty.”

“It is impossible for me to work in peace under the circumstances – I am constantly under stress and find that I may fall sick and have to face consequences of such an illness.”

“Regional leaders harassed my team and I in several areas such as Puttalam, Anuradhapura, Matala Districts, they even bothered the counting centres. This is not a good trend. In fact, it reached an uncontrollable level of verbal abuse directed at Presiding Officers and Asst Elections Commissioners. “

“I have been accused of favouring one party in the process of carrying out my duties. I regret that it is no longer possible for me to suffer such indignity and insult – I am not able to do so physically or psychologically.”

Quite clearly, until the electorate is assured that the process of elections is not abused by violence, by the use of state resources in favour of the party in power, by the abuse of state media and without the tampering of the ballot in the process of receiving, preserving and counting at the commissioner’s office it would not be possible to create public confidence in a free and fair election. However, this cannot be done until a commission of elections is appointed in compliance with the 17th Amendment to the Constitution.
On the 26th January the election for the position of Executive President was held in Sri Lanka and the election commissioner declared the incumbent president, Mahinda Rajapakse, as the winner. The common candidate for the opposition, retired general Sarath Fonseka, rejected the results stating that the announced results were false due to the prevalence of violence, electoral fraud and tampering of the counting process itself. The commissioner while announcing the results to the nation in a televised message stated in strong terms that he was subjected to severe pressure and humiliation to an extent that he was unable to bear it any longer. All commentaries on the election commissioner’s speech interpreted it to indicate that he was not satisfied with the conditions under which he had to carry out his duties in conducting the election in a free and fair manner.

Very clearly, the question as to whether Sri Lanka is any longer capable of conducting a free and fair election has been raised in this election. It is not only the electoral process that is under challenge but the very process of receiving, preserving and counting of the ballot at the commissioner’s office itself which is the issue that has been prominently raised. Besides this, the enormous abuse of state resources by the government for its electoral purposes and particularly the blatant abuse of the state media for direct propaganda to request people not to vote for the opposition candidate, in defiance of the commissioner’s direct interventions, have all contributed to the creation of the overwhelming impression that the conditions for a free and fair election were not observed during this election.

The problem of the difficulties in ensuring a free and fair election was recognised previously. In 2001 the amendment to the Sri Lankan Constitution of 1978 was passed in the parliament with rare unanimity which, among other things, created a Constitutional Council in order to ensure proper appointments to several important public institutions with the view to preserve professionalism in the government service. This was the result of a widely held realisation that political interference which had crept into the public service since the introduction of the executive presidential system in 1978 has contributed to the deterioration of standards in all public services and this deterioration was referred to as ‘politicisation’. This simply meant direct interference by the executive president and his agents into the running of the public service to an extent to make it impossible for it to function professionally.

Among the institutions that were recognised as being polluted by ‘politicisation’ was also the department of the commissioner of elections. Under Article 3 of the Constitution an amendment was introduced regarding the election commissioner. Under this article it was legislated that ‘there shall be an election commission consisting of five members appointed by the president on the recommendation of the Constitutional Council, from among persons who have distinguished themselves in any profession or in the field of administration or education. The President shall on the recommendation of the Constitutional Council, appoint one member as its chair.’

The governments since 2001 have refused to comply with this constitutional provision. The present commissioner of elections who was appointed to the position before this amendment was passed reached his retirement age in 2002. However, as no election commission was appointed according to the new provision he had to continue in office due to the absence of a substitute. On several occasions he publically requested permission to retire and as there was no satisfactory response from the government he even went before the court and sought permission to retire. The court refused his request on the basis that until a substitute was appointed under the constitutional provisions he had to remain in his post. Even the courts did not intervene to ensure that the government complied with the constitutional provision to appoint an election commission.

The failure on the part of the government to appoint an election commission consisting of five members nominated by the Constitutional Council has been perceived by all observers as a ploy to prevent the conduct of free and fair elections without political interference into the working of the election commissioner’s office. It was this situation which has led to the final outburst of the commissioner in which he voiced his frustrations to the entire nation in announcing the election result on the 27th January. Several of his comments are reproduced here due to their importance on any future discussion on this issue. (Translated from Sinhala by Roshan Fernando, quoted from Lanka Guardian).

“Under the empowerment of the Elections Commissioner as indicated in the 17th Amendment to the Constitution, I issued specific guidelines to the state media that were duly ignored. I then installed a Competent Authority for the state media who was completely disregarded. I then met the heads of state media but to no avail. I realized that this was a hopeless cause and so I had the Competent Authority removed.”

” I was able to note that during the election, many state institutions operated in a manner not befitting state organisations.”

“Some blamed me saying that my task was to ensure that the ballot boxes were safe and to ensure that the counting was done right. But under the circumstances I faced today, I could not even ensure the safety of even one ballot box. I did my duties during this time under great duress and mental agony.”

” I hereby state that the situation has reached a dangerous level that is beyond me. I am also advanced in years and have served in this capacity for eight long years so I only ask that I be released from this thankless duty.”

“It is impossible for me to work in peace under the circumstances – I am constantly under stress and find that I may fall sick and have to face consequences of such an illness.”

“Regional leaders harassed my team and I in several areas such as Puttalam, Anuradhapura, Matala Districts, they even bothered the counting centres. This is not a good trend. In fact, it reached an uncontrollable level of verbal abuse directed at Presiding Officers and Asst Elections Commissioners. “

“I have been accused of favouring one party in the process of carrying out my duties. I regret that it is no longer possible for me to suffer such indignity and insult – I am not able to do so physically or psychologically.”

Quite clearly, until the electorate is assured that the process of elections is not abused by violence, by the use of state resources in favour of the party in power, by the abuse of state media and without the tampering of the ballot in the process of receiving, preserving and counting at the commissioner’s office it would not be possible to create public confidence in a free and fair election. However, this cannot be done until a commission of elections is appointed in compliance with the 17th Amendment to the Constitution.

Source: The country’s capacity for holding free and fair elections in doubt

 The election for the Executive President will take place on the 26th January. This election will test the sovereignty of the people as enshrined in the Constitution and the possibility of genuine election in Sri Lanka as required by the International Covenant on Civil and Political Rights.

Article 25 of the International Covenant on Civil and Political Rights provides the right of the people to vote to be election at genuine and periodic elections which will be by universal and equal suffrage and shall be held by secret ballot guaranteeing free expression of the will of the electors.

In terms of Article 3 in the Constitution of the Democratic Socialist Republic of Sri Lanka, “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.” Voting for the formation of a government needs to be genuine. Genuineness would be that the people would have the complete freedom to exercise their franchise without fear and thereby to express their political will as they wish. An election that is not genuine is not an election at all.

The very notion of the sovereignty of the people which is the foundation of the constitutional framework of Sri Lanka also presupposes the capacity of the people to genuinely participate in exercising their right to vote. The sovereignty of the people would have very little meaning if the people cannot exercise their freedom in a genuine manner.

Therefore the problem of an election in the Sri Lankan context could be reduced to the problem of whether the freedom to vote can be exercised genuinely. In a situation where there is a functioning democracy the use of the ballot in a genuine manner can be taken for granted. However, in a situation where for decades now there has been an attempt to close the electoral map the question of the genuineness of an election cannot be taken for granted.

Ever since the 1978 Constitution was promulgated the possibility of a genuine election has been put to the test. The architect of the Constitution, J.R. Jayewardene also had the grand plan of closing the electoral map. Therefore the question of the sovereignty of the people and the scheme for closing the electoral map has been in constant conflict. As Sri Lanka has already established a tradition of exercising a ballot for the choosing of representatives the scheme of closing the electoral map was not an easy task. The idea that the people have the right to elect their own representative has sunk into the consciousness of the people in a very deep manner. It can easily be said that the belief of the power of the vote and the capacity to elect representatives is very much in the deep subconscious of the people of Sri Lanka.

Thus, when the architect of the 1978 Constitution contemplated the scheme of closing the electoral map he knew that it was not possible to do so by merely denying the possibility of having elections. It was not possible for him to legislate that the people will no longer have the right to elect their representatives. As he could not achieve his scheme through legitimate means the architect of the 1978 Constitution had to use his political shrewdness to find a way to achieve this by other means. Therefore the idea of closing the electoral map had to be accompanied by schemes to deny the genuineness of elections.

Developing the ways to have a façade of an election, while at the same time denying its genuineness, was experimented on in many elections. The elections conducted during the rule of J.R. Jayewardene with the stout support from his then Prime Minister, Premadasa, were enormous experiments of electoral violence and fraud.

The political scheme to deny genuine elections began with the scheme to deny civil rights to the best known political opponent of the then ruling party, the leader of the Sri Lanka Freedom Party, Mrs. Sirimavo Bandaranaike. The sole purpose of litigation against Mrs. Bandaranaike and some of her closest associates was the first most comprehensive attempt to deny the genuineness of elections. Having achieved this, still it was not possible to achieve the entire aim of closing the electoral map.

There was an example of how the electoral map was to be closed which was followed in Singapore. This was by creating the impossibility of the opposition parties functioning in a democratic manner by many schemes adopted within the Singaporean system. However, it was not possible to achieve this same aim within Sri Lanka where the habit of voting and electing representatives has become so much a part of the culture of the people.

Forced disappearances to intimidate voters

That was the problem J.R. Jayewardene and his colleague Premadasa had to deal with over a long period of time. The adoption of a referendum in order to extend the life of the parliament and thereby denying the people the right to vote for their representative was one such scheme. However, by 1988 all these schemes were failing and the large scale disappearances which were practiced in the period immediately before the election was also a scheme for denying the possibility of genuine elections. The reports of the commissioners on forced disappearances clearly indicate that the highest numbers of disappearances occurred in the periods closer to the elections. By using the political unrest that prevailed during the time and creating intense political propaganda it was possible to create the impression that the disappearances that were caused during the time were unrelated to the elections. However, closer scrutiny demonstrates that they elections and the forced disappearances of the time were, in fact, deeply connected.

In the period that was to follow the conflict with the LTTE provided the pretext for enormous violence during elections. This violence provided the excuse for denying genuine elections. The political violence and fraud that happened during this time were little noticed because of the greater preoccupation of the people with the problems of violence associated with the violence of the internal civil conflicts.

It is, in fact, the first presidential election outside a period of political violence that is taking place in Sri Lanka now in 2010. The LTTE internal conflict ended in May 2009. The present election takes place in an atmosphere where there does not exist a pretext for the massive use of electoral violence or easy attempts at electoral fraud. Unexpectedly the election has become one in which the ruling regime has been seriously contested. Unexpectedly enormously political contests have developed within the country indicating once again the hidden forces of society in which the tradition of electing representatives has been deeply imbedded in the people’s consciousness and political culture.

The contest so far has not been conducted in a peaceful atmosphere as required within a democracy. Four people have already been killed and large numbers of electoral violence incidents have been reported by the monitors. The greatest reflection of the absence of an atmosphere of genuine elections is the fact that the election commissioner himself has been forced to complain openly that he has not been allowed to conduct his duties in a free and fair manner. The enormous dissatisfaction expressed by the commissioner himself is now a well-established fact.

The failure to appoint an Election Commission in terms of the 17th Amendment to the Constitution was also a reflection of the attempt to deny the genuineness of the election. In the overall scheme of things the idea of the closure of the electoral map still remains. Genuine constitutional provisions for a free and fair election do not operate even now.

The conflict between the schemes of the 1978 Constitution for having an absolute power for an executive president who could rule as long as he wished by closing the electoral map still remains a problem for the people of Sri Lanka. Today a contest exists between a deeply established tradition among the people embedded in the political culture to want their representatives to be elected freely and fairly and the scheme to close down the electoral map. The future of this contest is to be seen in the days to come

Source:Testing sovereignty through a genuine election

“The responsibility for this situation is clearly with the government and particularly with the President himself. It is not enough for the head of the state to make statements supposedly to condemn the violence without taking direct command of the situation himself.”

According to reports, the election commissioner has expressed his frustration about the failure on the part of the government to comply with the instructions that he has issued for the purpose of carrying out the presidential election.. He has complained about the issue of state resources and the failure on the part of the state media in particular to carry out his instructions relating to the non-misuse of the state media for electoral purposes. Expressing his intense dissatisfaction he has told representatives from political parties that he will not continue in his office once his election duties are over.

The spokesman for the government when questioned about this matter by a member of the press did not deny the situation that has arisen. He merely stated that it is not only the government that is not complying with the Commissioner for Elections but also the opposition. Accepting allegations against the government spokesman did not even deny the fact that the orders of the election commissioner have been openly flouted by the government.

Trying to excuse the President from the responsibility the government spokesman stated that, as for the President, he has instructed everyone to obey the law and to participate in the election in a peaceful manner. The implication was that despite of the instructions of the President himself, the supporters of the government are not complying with the law and there seems to be nothing that the president himself, can do about this matter.

Meanwhile the number of deaths related to the election increased and throughout the country there were serious incidents of violence between the government supporters and those of the opposition. There have been many instances of stones being thrown at opponents. The police have clearly failed to restore the law and order and to create a climate for peaceful elections.

What has become visible in the Sri Lankan streets in almost all parts of the country is a situation of visible lawlessness. The election is being conducted in this atmosphere of lawlessness where even the highest officer in charge of the election has to express publically that he is unable to carry out his own duties as required by law.

The responsibility for this situation is clearly with the government and particularly with the President himself. It is not enough for the head of the state to make statements supposedly to condemn the violence without taking direct command of the situation himself. The command responsibility for ensuring law and order in the country is his and his alone. He has at his command the police and the armed forces. It is the lack of political will on the part of the President to ensure a situation of law and order that is visible even when very senior officers of his own government openly flout the law by engaging in various kinds of political activities to support the president. What is obvious is that a situation of lawlessness is being deliberately maintained in order to create a climate of fear which the government is hoping to utilise in its favour.

This election has brought to light the problem of the collapse of public institutions and the loss of the rule of law in Sri Lanka, even to the extent of the inability to hold an election within the conditions required by law. It is the duty of all Sri Lanka’s citizens to intervene at this stage in order to force the government to ensure that the election will be conducted in a peaceful manner. It is the duty of the population to support the Commissioner of Elections and ensure that he is able to carry out his duty in a manner required by the law. It would be too late for the international community if it does not intervene at this stage to ensure that this election will be held in a peaceful manner.

Source: President’s duty to stop lawlessness

“What is this election for and what kind of political office that requires this kind of violence are questions that any rational person should ask themselves. However, there seems to be no room for any kind of rational discourse in the ethos of this election.” 

Four people have now been killed due to election violence during this presidential campaign. This campaign is for electing the highest political officer in the nation. The very fact that the election for the highest political officer for the nation has become one beset with continuous violence and killings itself is perhaps a crystal clear indication of the level of absurdity to which the political system of Sri Lanka has fallen.

Ever since the executive presidential system was introduced elections have been marked by intense violence. Somehow winning the election has become the goal of the contest which in the real sense is not a contest at all. To get to the office that has no limits to its power the path has been set that also has no limits at all in terms of violence or anything else recognised within a civil society.

What is this election for and what kind of political office that requires this kind of violence are questions that any rational person should ask themselves. However, there seems to be no room for any kind of rational discourse in the ethos of this election.

In a democracy an election is the expression of the political will of the people. The Sri Lankan Constitution is based on the idea of the sovereignty of the people. Therefore it would have been quite normal to expect that it is the sovereign people that become visible during the period of an election. However, it is not the sovereignty of the people that is seen in the streets of Sri Lanka during an election campaign. It is actions that are done to intimidate the people and actions that are done to keep the people at home when some others decide the fate of an election that is made visible during this time.

What then is this very notion of the sovereignty of the people? Some kind of a mockery is written into the Constitution itself where a sovereign people are made to elect, in an atmosphere of violence and intimidation, another sovereign that has no limits to its power. A monstrosity that is borne of a violent election will in the course of time devour all the rights and resources of the people. This, in Sri Lanka, is called the sovereignty of the people.

The notion of the sovereignty of the people was born in struggles of the people against the sovereigns who held all power and who controlled all wealth to the detriment of the people. The people rose in revolt and took the power in their hands and developed the ways of ruling where a sovereign, in the way it was understood in the past, would not have existed anymore.

The new sovereignty which called itself the sovereignty of the people meant that all persons are subjected to the same rules and laws. No one is above these rules and laws. Thus, the sovereignty of the people, in essence, meant the supremacy of the law and the rule of law. The sovereignty of the people meant the absence of the sovereignty of the monarchs and the lords.

However, in Sri Lanka the sovereignty of the people has come to mean the election of an executive president who is above the law and who could control the people without any constitutional restraints, without the restraint of the parliament, without the restraints of the judiciary and without the restraint of the popular will. The present presidential election reflects the very absurdity on which the entire system of politics is based on in Sri Lanka.

The sovereignty of the people means that the political will of the people will prevail on all issues relating to their society and their lives. That means that the popular will must prevail over the manner in which the Nation’s resources are used and managed. After all, the popular will has very little meaning if the resources of the nation, which in modern circumstances mean the financial and material resources which belong to the nation, if such resources are not under the control of the people. The Sri Lankan political system does not give any room for the popular will of the people to prevail on the issue of the management of the resources of the nation.

In the management of the resources of the nation for the benefit of the people some of the most primary requirements would be that the people’s right to food, health and education are given priority. Beggars cannot claim themselves to be sovereigns. The people who cannot make claims for proper medical care cannot claim themselves to be sovereigns. The people who do not have even a say in the way in which the basic rules relating to arrest, detention and the manner in which trials are conducted cannot claim themselves to be sovereign.

In Sri Lanka today, the people do not have any of these rights. Somebody who is called the Executive President holds sovereignty over all these matters. The president has the privilege of deciding whether the people should die of dengue fever or by swine flu. The president also decides through his minions whether a person should remain without bail and for how long.

The president also decides who should be killed by extrajudicial means. The president can practically deny the right of fair trial to people by delaying the entire process, though denial of resources for the proper judicial process and by denying any other facility such for example as even the right of the lawyers to function in an independent fashion. Such is the way the sovereignty of the people is exercised in the country.

Under these circumstances it is no surprise that more people are being killed in the process of the election of a sovereign. And that more inconvenience is caused to the people in order to force their votes out of their hands so that the sovereign elects himself by his own means of power rather than by popular will.

Source: Electoral violence and the sovereignty of the people

“Re-establishment of the authority of public institutions, including that of the election commissioner, and the regaining of the constitutional process within a system that effectively recognizes the separation of powers principles, would require understanding of the recent problems in a different manner.”

The groups engaged in monitoring into the election have reported about flagrant violations of election laws, use of state assets illegally and the use of violence, noting that in Sri Lanka today the collapse of the electoral system on an unprecedented scale is taking place. The election commissioners own comments about the absence of cooperation between him and the government have also been very widely reported.

None of these observations would come as a surprise to anyone who has been an observer of the constitutional process in Sri Lanka. The collapse of public institutions has taken place over a long period of time and the whole debate on the 17th amendment to the constitution is merely a reflection of the extent of this collapse. The source of the collapse is the very nature of the constitutional arrangement in the 1978 constitution, which has placed all power in the hands of a single person who holds the office of the Executive President.

The collapse of all public institutions, including the electoral process, is the necessary result of the political process initiated through the introduction of the executive presidential system. The existence of the executive presidential system in Sri Lanka and any form of democratic government, or even a rational government, are incompatible.

In the years to come when the actual impact of the 1978 constitution is reviewed in a reasonable manner it will become obvious that what is usually spoken of as the known history of Sri Lanka, in recent decades, needs to be re-written.

The very nature of the conflict with the minorities, which is now easily spoken of as a conflict with the LTTE and a matter of dealing with terrorism, would reveal itself as rather a process of disintegration of the state through the operation of the executive presidential system which necessitated a situation of unrest within society. This was achieved both in the south, as well as in the north and east, by various kinds of conflicts, which prevailed. The escalation of some local conflicts into intense violence and into huge military conflicts was in fact a process which may not have taken place, if not for the existent of the executive presidential system.

In understanding violence in Sri Lanka as well as the resulting anarchy that is today experienced, the role played by the first Executive President of Sri Lanka, mostly for his own survival, needs to be more carefully and minutely documented than has been done up until now.

Knowing very well that the absolute power that he took upon himself would be challenged by many forces that were within Sri Lankan society, President Jayawardhane diverted what may have become political challenges to his rule into all kinds of violence throughout the country by igniting these conflicts and pushing them to a point of no return from a democratic point of view. When one conflict was not sufficient he then ignited more and each of these conflicts, in their own terms, had dialectics of their own thus the dialectics of violence, initiated by the head of the state itself, penetrated into all corners of the country until the discourse became one of arms and violence.

With that igniting of conflicts and the use of propaganda machinery by the state the interpretation of virtually every problem within Sri Lanka took a different turn to what the real problems were. The need to re-interpret all these events in a more rational manner is now felt more than ever if the democratic process is to regain root In Sri Lanka.

Re-establishment of the authority of public institutions, including that of the election commissioner, and the regaining of the constitutional process within a system that effectively recognizes the separation of powers principles, would require understanding of the recent problems in a different manner.

The loss of separation of powers within Sri Lanka is the root cause of the instability of public institutions in Sri Lanka including that of the election commissioner. This loss is mostly felt in the area of the independence of the judiciary. The judiciary today is a destabilized institution which has been undermined severely from every point of view by many kinds of politicizations that have taken place in Sri Lanka.

Thus, today the country is facing critical times in every area. However, none of these problems could be resolved without dealing with the issue of the executive presidential system, which needs to be displaced as the first step towards the beginning of even the possibility of stability within the country. That process of re-establishment will also require re-interpretation of recent history from that same point of view.

Source:The crisis of the Electoral Commission

A Statement by the Asian Human Rights Commission

The presidential election will take place on the 26th of January. The campaign leading to the election took a bloody turn yesterday (13th of January 2010) with the killing of Kusumawahi Kurupuarachi at Hungama in Tangalle in Hambanthota district, and another very violent conflict being led by some senior politicians of the government at Polonaruwa town centre. The two locations were far apart: one in the deep south, and the other in the north central provinces, suggesting a deliberately designed pogrom being carried out in different parts of the country.

Sri Lanka has been witnessing periods of intense terror continuously since 1971. Particularly since 1978, all elections, particularly the election for the executive president, have been accompanied with massive-scale violence. In the election campaign on 1988, there was an intensely violent campaign which resulted in the deaths and disappearances of thousands of persons. The subsequent investigations showed that the highest numbers of acts of violence, including the disappearances, took place closer to the date of the election.

The designed use of terror during an election campaign is to achieve the purpose of intimidating the opponent in order to prevent opposition supporters from going to the polls. It also facilitates the large-scale rigging of elections. The present escalation of tension has all the marks of the previous experiences of interference with free and fair elections by generating terror.

Under these circumstances, the statement made by the election commissioner also indicates the atmosphere of interferences into the elections to an extent that the conduct of the election as required by law seems to be becoming impossible. The Daily Mirror reported as follows:

Elections Commissioner Dayananda Dissanayake threatened, yesterday, to withdraw from his duties related to the Presidential Election asserting that the authorities concerned had not aided him by adhering to the guidelines and regulations issued by him to create an atmosphere conducive to a free and fair election.

Mr. Dissanayake, at a meeting with the representatives of political parties, expressed his disgust and disappointment over the failure of the government to cooperate with him in this respect.

However, he withdrew his threat after the political parties assured him that they would abide by the election laws in the run up to theelection. Mr. Dissanayake had reportedly told the meeting that the Competent Authority appointed by him had been humiliated by the state media.

The Asian Human Rights Commission wishes to alert all the citizens of Sri Lanka and the international community to the danger of another period of terror emerging in Sri Lanka in the coming days. It is the duty of all democratically minded persons to make their interventions in order to prevent the possibility of such a situation and to ensure a peaceful atmosphere within which the citizens of Sri Lanka can exercise their franchise. The safety and security of the lives of all persons should be the prime consideration at all time. All measures must be taken to prevent the re-emergence of the type of violence that Sri Lankans has encountered continuously in recent decades.

Source:Will the coming 12 days become another period of terror? An early warning

Four Tamil prison inmates in Jaffna Prison were hospitalised today, 11th January, after they had fallen seriously ill due to a hunger strike they had undertaken for their release from detention under the Prevention of Terrorism Act. They are among thousands of Tamil detainees in several prisons who have been held under the PTA for a long period now. The prisoners detained under the PTA in Sri Lanka have undertaken a hunger strike which has lasted for a considerable time now demanding that they be released or that legal action be taken against them before court following the due process of law.

The government has so far failed to take effective action in order to ensure justice for prisoners arrested under the Prevention of Terrorism Act although the war against the LTTE has been declared to have been brought to an end by the middle of May, 2009.

Even after the defeat of the LTTE large numbers of suspects were arrested on the basis that there was evidence of connections they had had with the LTTE. However, no reports have been filed in courts about the details of any such involvement or of any legal action that the government is proposing to take regarding these detainees.

During the period of the hunger strikes by detainees under the PTA they have been several occasions in which there were complaints of assaults and the use of violence against some of the prisoners. There are also allegations of the deaths of some prisoners.

Many international human rights organisations have demanded that proper legal action should be taken against these suspects and if no legal action is to be taken they should be released forthwith. However, there does not seem to be any response to such demands from the government.

The parents of the suspects who are now in critical condition have been visiting the human rights organisations in Colombo requesting that immediate and urgent action be taken on behalf of their relatives.

The Asian Human Rights Commission condemns the continuous neglect of the prisoners held under the Prevention of Terrorism Act. The AHRC launched an online petition which was signed by thousands of persons and forwarded to the President of Sri Lanka for the release of prisoners under the PTA if there is no evidence for taking legal action and for the lifting of the PTA altogether.

The AHRC particularly demands that all appropriate action be taken to ensure the safety and security of the prisoners who are now in critical condition. Further action should be also taken to deal with the demands made by them on their behalf and those of others.

Source:Four PTA prisoners in critical condition

The Sri Lankan customs department has detained a series of books on human rights sent for free distribution to libraries. The books sent by the Asian Legal Resource Centre to the local human rights organization, Janasansadaya (Peoples Forum), are books relating to the basic human rights issues and matters relating to the rule of law. These are well known books that have been distributed in many countries in Asia. The list of books consists of around 100 titles.

The Customs Department has not given any reason for the detention of these books. Representations have been made for their release, however, the Customs Department have not replied to any of the letters sent so far.

The secretary of Janasansadaya, Chitral Perera stated that initially, the Assistant Director of Baggage of the Customs Department received these books and was unwilling to release them. He stated that if the books were to be released it may be a threat to his job. When asked as to why this should be the Assistant Director was not able to give any explanation. Thereafter the matter was referred to the Director of Customs who in turn has referred it to his Director General. Without making a decision on the matter the Director General referred the matter to the Director of Information.

While the making of a decision for the release of the book has been passed from one officer to another, none of the officers have been able to explain as to why they were detained in the first place.

There appears to be a fear of political repercussions to anyone making the decision to release these books for reasons which are not being explained.

“The prevalence of such a system is indicative of some serious defects within the Customs Department. A political culture has developed that regards freedom of information as being detrimental to the democratic freedoms”, said Basil Fernando, director of the ALRC.

Under the article 14(1) of the Sri Lankan Constitution the right of publication, which includes the right of distribution of information, is a fundamental right. The books that have been detained are books relating to the rights that are recognised under the Constitution of Sri Lanka. The right of information implies the right of the Sri Lankan citizens to receive books and other material and their right to read such books. The limitations regarding this right should relate only to matters that are related to national security issues. None of the books that have been detained have anything to do with any matter relating to national security. In fact, they are academic writings and other publications which are of a general nature dealing with the basic rule of law issues that are particularly affecting the less developed countries.

The arbitrary detention of published material which is for distribution to the public is a denial of the fundamental rights of the organisers who wish to provide these books to the public, as well as a denial of the rights of the public themselves to have access to proper documentation on the matters affecting their rights.

As the representations made to the Customs Department have not been answered the organization concerned will take this matter before the court.

A lawyer representing the organisation said, “On previous occasions, issues relating to the detention of printed material have come before the Supreme Court of Sri Lanka. During the time of President Premadasa the customs authorities seized a printing machine which was sent for the purpose of printing books for the public. When this matter came before the Supreme Court the court held that the importance of the right of persons to have access to information overrides any other issues such as valuation relating to such matters and ordered the printing machine to be immediately released.” The lawyer went on to say that that this detention is completely arbitrary and against the law.

Freedom within democracy requires a free availability of reading material to the public. Both the right of publication and the right of readership are connected. No democracy can function without an atmosphere of freedom to receive books and the freedom to read and discuss issues contained therein.

“The present culture that is prevalent within the Customs Department regarding this issue is shocking and undemocratic,” said Mr. Fernando.

Source: Human Rights books detained by the Customs department in Colombo