Constitution should reflect real needs
Posted on October 11th, 2016

By Shivanthi Ranasinghe Courtesy Ceylon Today

At a seminar organized by young professionals, “Geneva and You”,Dr. Dayan Jayatilleke observes that Sri Lanka is in a perpetual cyclical pattern. First, we prepare, learn from our mistakes and achieve a significant victory that could change the course. Yet, we are unable to maintain our victory. The third phase is a ‘period of appeasement and unilateral retreat’. However, in the final phase we are back on the path of “recovery, resistance and victory”.

We are, he identifies, currently at the third phase. He cautions that unless we quickly move to the fourth phase and roll back the ‘ill-advisedly co-sponsored’ Geneva Resolution, “the political stability that we require for foreign investment, reconciliation and a stable peace will be seriously jeopardized.” This exacerbated crisis will lead to a “renewed cycle of political conflict”.
However, this time, if a conflict – political or otherwise – were to erupt, it might not be so easy. The reason being, the military is now under intense investigation for alleged irregularities and excesses that had supposedly taken place during or after the final war against terrorism. The pressure on the government to address these allegations is relentless.

Military intelligence

The resulting much publicized arrest of military intelligence (MI) officers and personnel being detained for over a year without trial is bad enough. Withholding their remuneration has put their families into severe economic hardship. The trauma is multifold with the public parading of these personnel to and from Courts in cuffs and chains, as common criminals.

Major General Kamal Gunaratne warns at an interview with “Ada Derana 360”, that MI will be rendered useless if fear is instilled into them. Our intelligence is one of the highest ranking in the world. This is exemplified in the manner they captured the Liberation Tigers of Tamil Eelam’s (LTTE) remaining senior-most leader, Kumaran Padmanathan, on foreign soil and returned to Sri Lanka. It took years and much experience to build our intelligence to this superior level, he explains. They will be demoralized if current situation continues and it will take years more to rebuild their confidence. By then, events would have proceeded.

General Daya Ratnayaka agrees. “Everything revolves around the intelligence system. That’s why we can’t have anyone with a criminal mind frame. The Army never tolerates any criminal behaviour and have always weeded such persons out. Many times, soldiers have been sent home, sentenced to prison or given even the capital punishment.”

‘Road to Nandikadal’

The fourth chapter of Major General Gunaratne’s book, Road to Nandikadal , describes the strict steps the Army took to deal with conduct contrary to their code. The incident was while manning a polling station during the 1983 referendum. A skirmish with the terrorists there killed this conflict’s first soldier. Enraged, a rampant group of soldiers destroyed property and even killed a civilian. When a large group of soldiers protested in solidarity against the termination of those who gave leadership to the rampage, all the officers who were present at camp that day – even those who were about to go on leave – were immediately sacked.

“When after detaining these officers for so long,” says General Ratnayaka referring to the MI officers currently in custody, “and if still nothing concrete has been found to proceed, then what does it mean? I feel, there is an unseen force that is behind this whole thing, preventing a proper conclusion from being reached.”

Commenting on the pivotal importance the MI plays in national security, he comments, “This should have been handled much more discreetly. If the MI has committed any irregularity, other intelligence bodies – as in the Air Force – should’ve been tasked to investigate.”

However, in 2015, Army Staff Sergeant Sunil Ratnayake was found guilty for the murder of eight civilians in Mirusuvil, Jaffna and was sentenced to death by the Colombo High Courts. In 2016, the same Court found former Lieutenant Wimal Wickrema guilty of causing the death by negligence of an LTTE suspect who was attempting to flee military custody in 1998. Though both convictions come after over 10 years of trial, public perception, rightly or wrongly, is that the incumbent administration is responsible for the ruling. The public do not accept the judgments as fair and just as seen by their sympathy.

Indeed, if the military loses faith in the State and fears that law would haunt them eventually for actions they were compelled to take in extreme conditions, then the nation’s security would be at tremendous risk. This is the same premise the current British administration holds regarding the British soldiers accused of human rights violations that may amount to war crimes. Despite 1,500 allegations of abuse in Iraq and 550 in Afghanistan, the British are unwavering in their solidarity.

Johnny Mercer, MP for Plymouth, Moor View and former captain in the Royal Artillery states it best when he says, “We cannot ask our fighting troops to adhere to European Human Rights law, which was designed in good faith for civilian life in Europe. PM May needs to grasp that our attitude towards looking after this Afghanistan and Iraq generation of servicemen will define this nation’s relationship with its military for the next 50 years.”

Fundamental difference

There is a fundamental difference between the situations the British troops and the Sri Lankan troops find themselves. The former was engaged in what was essentially an invasion of not one, but two sovereign nations. The latter was engaged in protecting the territorial integrity of Sri Lanka – which every soldier undertakes to uphold – from a secessionist group that grossly violated human rights to coerce the Sri Lankan Government into their demands. The threat perceived to British citizens that led to the military intervention in oil-rich countries was purely theoretical and has since proved to be false.

Yet, the same pressures that exonerate the British troops are exerting on the Sri Lankan Government to investigate.

This is despite, observes

Dr. Jayatilleke, a pro-West government being in power. “If the resolutions were merely a pressure tactic to bring us into line for geopolitical reasons, then logically now that there is a pro-Western government in place in Colombo, the pressure should be lifting.” It is not for, “when the West looks at the world it’s not just geopolitics in a strategic sense. There are certain communities, nations and parts of the world that they somehow view as unreliable, hostile or inimical”.

That is why, “there is an attempt to change the deep structure of the Sri Lankan State. That’s the attempt to federalize, as well as the attempt to effect what is known as “security sector reforms”. One of the targets is the Sri Lankan Army, because it’s seen as the most patriotic of the services.”

Nation’s sovereignty

Against this backdrop, how can the very force that protects the nation’s sovereignty and civilians their lives protect it from being hounded, humiliated and eventually dismantled? General Ratnayaka explains we are in this vulnerable situation, because of our Constitution’s inherent weaknesses.

“We must all have a proper understanding of war,” he states, “because war means national security.
“In ancient Sri Lanka, we revolved around three pillars: the royal decree, agro-economy and Buddhist civilization. This was destroyed by colonial forces and now we are struggling. They replaced our caste system with a class system, and introduced the democracy we have today.
“In 1948, we should’ve characterized that democracy to Sri Lankan way of life. The issues we have today are because we failed to do so. There are certain characteristics that had worked for us for thousands of years. For instance, we always had one rule.”

In the aftermath of the victory against terrorism, some elevated President Mahinda Rajapaksa to the status of King. That acceptance of him as such indicates a society that misses their King – even 200 years later. The Asian countries, that were similarly colonized but stand successful today, are those that had gone back to one-rule leadership – even under the guise of democracy. Countries like Iraq and Libya, where such rule was rudely taken out, are absolute wrecks today. Sri Lanka has been oscillating from one major party to the other and has nothing to show beside empty pockets.

Strength of family

“The other thing we don’t talk about much is that in our culture, our strength is our family. As individuals we developed ourselves as individuals to look after the country. That had been our ingenuity. Then we, even our kings, drew strength from our large families. People might deride this as family rule.

“If family members are put into position in blind nepotism, then it’s a problem. But if qualified family members are placed, then they become the ruler’s strength. The Gandhi family is one example out of so many. The main reason MR could win this war was his family. From this side, Gotabaya Rajapaksa was fighting the war and from the other side, Basil Rajapaksa was managing the economy.

“We have got all these things mixed up. We not only don’t have a proper National Security Act, we don’t have a Constitution that reflects our needs. If our Constitution cannot keep our country together, fails to fit in all segments of society and frequently changes, then it’s not the right Constitution for us.

“In the post-independent era, we have faced so many challenges, which were all new experiences to us. But we won the war after we developed a comprehensive master plan to lead to a holistic solution. We put physical fighting, international relations, psychological operations, media campaigns and so on all together in place. We used all the elements of national power together for this transformation.

Political stability

“Political leadership then came with political stability and above all, there was political courage. As all these came together GR was there to coordinate it. The three commanders and field commanders were battled hardened and had come up with the system. So people supported and became part of the masterplan. When pressures came, we had a leader who absorbed that pressure, never allowing it to permeate to the field level. That’s how we became successful.”

As per Dr. Jayatilleke’s observation, we could not hold on to our success.

“That shows the inherent weaknesses of the present Constitution,” says General Ratnayaka. “These issues we face are not isolated, and indicate to have been designed by some other force. This highlights that our Constitution has little understanding of domestic, regional and international aspects.

“When fighting against terrorism, we are forced to go beyond the normal boundaries and practices of law and order. If we had acted within the Prevention of Terrorism Act at the time, but in the post-conflict, we are to be tried under normal law and order, then something is radically wrong. To try an extreme situation under normal circumstances is like fitting a square peg into a round hole.

Post-conflict era

“The events that happened in the post-conflict era are beyond the call of war. Things happened in rapid form as various elements tried their best to destabilize us. It’s not that we didn’t know their agenda, but the threats were too huge to counter before we could fully exploit the success of winning the war and achieve social, economic and political stability.

“People were promised good governance. Now, good governance is the extreme level of democracy. But first as a society we need to be disciplined, and then developed. Then only democratic policies can be developed. In Sri Lanka, we are trying to achieve this in the reverse order. Nowhere in the world had any country achieved top-class, five-star democracy, then development and finally discipline.

“If soldiers have committed certain acts with good intention, you can’t blame the legal system, or thePolice or the soldiers for what they’ve done when there’s a mismatch in all these things.”
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