Ruki Fernando is a human rights activist based in Colombo, Sri Lanka.
This interview has been edited lightly.
Maithripala Sirisena came to power more than two years ago, yet most of the government’s plans – pertaining to constitution-building, economic reform and anticorruption efforts, among other matters – haven’t been implemented. How would you rate the government’s progress thus far? Did you expect that more would be accomplished?
Some significant steps were taken in 2015, and hopes were high more would follow. But since 2016, progress has been very slow, very little, very disappointing, very frustrating. And prospects of real progress, radical reforms, appear very bleak now in 2017.
The coalition government is built upon an awkward power-sharing arrangement between the United National Party (UNP) and the Sri Lanka Freedom Party (SLFP). Historically the two parties have been rivals. How would you describe the alliance? Do you expect it to stay together in the coming years?
It’s an achievement that the alliance is still intact, although there appears to be very little agreement on crucial matters that affect the life of Sri Lankans today and in the future. I hope, and believe, the alliance can survive until 2020 at least, though it’s looking more and more fragile. The president and prime minister, together, could still command two-thirds of the parliament.
The alliance still offers a rare opportunity of a progressive new constitution, reconciliation with justice, accountability. But if the alliance breaks up, we may again descend into chaos and authoritarianism. In reality it’s only a part of the SLFP (headed by President Sirisena) that’s in alliance with the UNP. The other part headed by former strongman Mahinda Rajapaksa still has significant popular support.
The 34th session of the UN Human Rights Council (HRC) ended in late March and another country-specific resolution (largely dealing with human rights and transitional justice) was passed on Sri Lanka during that time. Consequently, the HRC will monitor Sri Lanka’s transitional justice process for an additional two years. Did anything about the HRC session surprise you? Are you satisfied with the outcome?
The Sri Lankan government had made some constructive commitments through the October 2015 resolution, but had fulfilled very little of them by the time this new resolution was being negotiated. And there are no signs of commitments being fulfilled in the near future. On the contrary, what we see is public statements by the president and prime minister refusing to fulfill commitments made. None of these realities were reflected in the resolution that was adopted.
The March 2017 HRC resolution appears to be disconnected from ground realities in Sri Lanka. It didn’t seem to reflect the life situations, feelings, grievances or aspirations of many civil war survivors and families of victims of human rights violations. When the HRC’s 34th session was in progress and the resolution was being negotiated, there were widespread protests in Sri Lanka. Workers were protesting in Colombo demanding permanent employment. Students were protesting in Colombo demanding guarantees of right to healthcare and education. In the North, families of disappeared persons were on the streets, some fasting, demanding to know what happened to their family members -- some of whom were last seen surrendering to the army [during the end of the war]. Others in the North, were camping out day and night outside army and air force camps, demanding release of their traditional lands which the army and air force have been occupying since the end of the war.
[Prevention of Terrorism Act] PTA detainees were still languishing in jail, even I have remained under investigation under the PTA for more than three years. These issues have been brought to the attention of the Sri Lankan government and member states of the UN repeatedly, but it appears that they didn’t want these ground realities to be reflected in the resolution. It showed that neither the Sri Lankan government nor member states of the UN were ready to honestly acknowledge the ground realities in the country.
It is positive that the resolution in March 2017 promises to fulfill the commitments made in the October 2015 resolution, without watering it down, and with a mandate for the UN Office of the High Commissioner for Human Rights (OHCHR) to monitor the situation and report back to the HRC. But given the extreme delays, backward steps and contradictory statements from the Sri Lankan government in relation to the October 2015 resolution, even a progressive resolution on paper generates little hope amongst survivors and victims’ families -- especially as there is no timeline or roadmap with benchmarks. It also makes the monitoring mandate given by the HRC to the OHCHR even more challenging. But given the fact that resolution was negotiated with the Sri Lankan government, I thought this was almost inevitable, however disappointing and frustrating it is.
In a host of areas, the government appears to be struggling. Regarding reforms, what do you see happening this year?
Well, sadly, I don’t think many meaningful reforms will be happening this year. I hope I’m proved wrong. I hope that the after more than nine months wait, the president will have the courage to sign off on the decree to set up the Office of Missing Persons, without any further attempts to weaken the legislation that was passed.
I also hope legislation for all other transitional justice mechanisms will be passed through parliament this year. And, of course, I hope practical things like justice for political prisoners, release of lands occupied by the military and sustainable economic empowerment programs will be launched. These can definitely happen if there is political will.
How optimistic are you about the country’s constitution-building project? Do you expect that a new constitution will eventually be put to a referendum? Do you think a political solution to the ethnic conflict is viable at this point?
I think a new constitution is likely. I think it should be put to a referendum and that’s also likely. But I’m not optimistic that it will be much better than the present one. It’s likely to be majoritarian – where the rights and dignity of numerical minorities and disadvantaged groups will be held hostage to the whims and fancies of the majority.
Most Sinhalese are likely to oppose substantial power sharing (autonomy) for the North and East. Appeals of the Malayaha community to be recognized as a distinct community, and not just as “Indian origin/Hill Country/Plantation/Estate Tamils” is doubtful. Discriminatory personal laws like Muslim Marriage and Divorce Act may still be privileged over constitutionally and internationally recognized rights. Most Buddhists are likely to oppose an equal position for numerically smaller religious communities and insist on Buddhism being given the foremost or some form of privileged position above other religions.
Most heterosexual men and women will oppose explicit rights and recognition to people with different sexual orientations and gender identities. Most citizens may not support expansive rights to noncitizens, especially asylum seekers and refugees. There is even opposition to the inclusion of justiciable socioeconomic rights. So, what’s likely is that drafters will prepare a draft that will get the support of more than two-thirds of the parliament, and more than 50 percent of the population at a referendum. Which means this new constitution is likely to be a constitution in favor of market forces, male, heterosexual, Sinhalese, Buddhists and other dominant groups. Numerical minorities and disadvantaged groups may have no choice but to accept and live with this.
But with this coalition of two major political parties, and some degree of space for free expression, assembly and association, I think this is the best and possibly last opportunity for a long time, to have a meaningful political solution to the ethnic conflict and radical democratic reforms. But what we may get is a new constitution that’s marginally better than what we have now.
The recently passed HRC resolution (basically an extension of an October 2015 resolution) outlines a solid transitional justice agenda, including the creation of offices to deal with disappearances and reparations, a judicial mechanism to address abuses which occurred during the war and a truth commission. Yet we’re still waiting to see when these mechanisms might become operational. What do you think will happen in the next year or two?
I’m increasingly skeptical of the government keeping its promises on transitional justice. Even as desperate survivors and victims’ families are on the streets for months, the president appears to have stated that we’ll see a new constitution first and transitional justice later -- implying an artificial separation of the two. I think the Office of Missing Persons may become operational this year.
The legislation for a truth commission and an Office of Reparations may be passed this year, but they may not be established this year. Given the rhetoric of both the president and the prime minister, I feel it’s unlikely even legislation for a judicial mechanism along the lines of what was promised may happen this year. Probably, it may never happen. But I still hope. And it would be a mistake to give up on things the government had committed to, and we have campaigned for — for long time at great risk and cost.
Rajapaksa was elected to parliament in August 2015 and certainly seems keen on returning to power in some fashion. How worried are you that the former president will impede future reforms? Do you see anyone in his family eventually being held accountable for high-level corruption?
Although Rajapaksa family members have been questioned and detained, I think it’s unlikely any of them will be convicted or even prosecuted. Although Rajapaksa appears to be still popular, I think it’s unlikely they will come back into power. But I’m more worried about the president and the prime minister not being serious and proactive in engaging with the population, especially Sinhalese, about commitments made, and also their statements backtracking on official commitments -- rather than Rajapaksa impeding reforms.
What’s the best way for international actors to engage with Sri Lanka right now?
In the case of the latest draft of the counterterrorism act of the Sri Lankan government, the drafts and process has been shrouded in secrecy, with the government reported to have shared the document with the EU and the UN, while hiding it from us citizens. UN officials and foreign governments should denounce and distance themselves from such secret processes, instead of being complicit. In the end, the leaked draft is deeply problematic, not much better than the existing draconian PTA. It’s effectively a license for extrajudicial executions, enforced disappearances, torture, prolonged detention and limiting free expression, with massive powers to the military, police and executive, with very little checks and balances and protections – and this appears to have been endorsed by the UN and the EU.
To take another example, the U.S. has appeared to have ignored the illegal occupation of traditional Mullikulam village [in Mannar district] by the Sri Lankan Navy, which has resulted in the displacement of people. This happened when the U.S. Ambassador [Atul Keshap] participated in the passing out parade of U.S.-trained Sri Lankan Navy Marines in Mullikulam -- just a month before the displaced persons launched a protest to regain their lands.
The international community should be more sensitive and acknowledge the cries and aspirations of survivors and victims’ families, and support them in their struggles. The international community should highlight their situation and demands, such as the protests that have been going on for more than 100 days in the North, by families of the disappeared and those whose lands are occupied by the military.
As we Sri Lankans struggle to hold the new government accountable to commitments it had made, the international community should also hold the government accountable --demanding the government fulfill its international obligations in terms of human rights and more importantly, all commitments made to the Sri Lankan people, during the elections and afterwards.
Principled engagement on human rights should not be sacrificed for more cordial international relations, trade and investment.