By Kalana Senaratne
“This is the way the world ends,
Not with a bang, but a whimper.” (TS Eliot)
Sarath Fonseka’s emergence as a politician was of immense political benefit to a number of politicians and political parties in Sri Lanka; not necessarily for good reasons though. ‘Sarath Fonseka’ was, for those who stood to benefit from his (imagined) success in politics, a mere political plaything. This is something that many, including Sarath Fonseka, ought to have realized a long time ago.
The above point is raised not with the slightest intention of justifying the horrendous ‘fate’ that has befallen Sarath Fonseka today. While this writer was no supporter of Sarath Fonseka’s Presidential ambitions, Fonseka’s swift and sudden arrest, detention and imprisonment showed the callousness with which the present regime could act if it truly wanted to end a political career of a political opponent, a perceived political threat. In that respect, the imprisonment of Fonseka is truly a most unfortunate and disturbing development (even though much that has happened in this regard, since January 2010, and even much that could happen in the future, has and will not be surprising).
Yet, the point here is that Sarath Fonseka was, and is, an interesting plaything of the politicians and there is much to be gained politically, especially if he remains in prison. For the drowning JVP, ‘Fonseka’ is the last straw that it can clutch at. More significantly, Sarath Fonseka’s arrest and imprisonment has been of immeasurable political value to Ranil Wickremasinghe and the UNP.
For Ranil Wickremasinghe in particular, ‘Sarath Fonseka’ was an object that had to be handled carefully, on all occasions. There was a time when Ranil Wickremasinghe believed that Fonseka could emerge victorious (or did he think it was not possible, and was that why he so readily endorsed Fonseka as the ‘common candidate’?); and Fonseka’s victory would have saved the UNP, saved Ranil and saved a depleted Opposition. Today, (as The Island editorial quite correctly pointed out), it is Ranil who has emerged as a possible ‘saviour’ of Sarath Fonseka.
But more importantly, the entire episode of Fonseka being imprisoned and Ranil having to lead the fight as the leader of the Opposition (a fact which Ranil does not forget to stress these days) helps him divert attention from the problems he is facing within the party. It is not just the diversion of attention that is crucial here. It is the opportunity he gets to act as the Leader of the Opposition that is more important. And he uses this opportunity in the best manner possible, to drive home the message that he is the leader and no one else; in case anyone had any doubts about it.
It is also for this reason that Ranil, having rejected the 18th Amendment, rushed back to nominate TNA MP, MA Sumanthiran as his nominee to the Parliamentary Council set up under the 18th Amendment. Before the local press, Ranil tried to come up with a politically bizarre and comical argument to the effect that he was trying to make the 18th Amendment unworkable, just like the 17th Amendment. But then, one always noticed that Ranil’s real motive was different.
It was to show that he is still in control of the Opposition, that he was indeed the leader of the Opposition, and because he was the leader of Opposition, he was nominating Sumanthiran – since the leader of the Opposition is required to do so, under the 18th Amendment. Having avoided the debate on the 18th Amendment, Ranil seems to have suddenly realized that it is not the 18th Amendment which is the problem, but not acting as the leader of the Opposition as per the provisions of the 18th Amendment that would be the problem.
All of this is quite apparent, and is not a mystery. This is why witnessing the mere presence of Ranil Wickremasinghe in any one of the protest campaigns carried out in defence of Fonseka evokes in one a sudden guffaw; uncontrollable at times, but saddening, none the less. He is here, there and everywhere nowadays, as he needs to act as a leader of the Opposition.
However, there are more serious matters that the opposition and all these politicians would need to face in the future. They should very well know that all this chest-beating could come a cropper sooner or later. A more mature understanding of the whole process and what is to come next in this Fonseka episode seems to be conveniently forgotten; for it needs to be remembered that a Presidential pardon could be of little value, if there is no guarantee that Fonseka would not end up in prison again.
There are a number of cases which have begun already; one being the ‘White-flag’ case, wherein Fonseka appears to be charged on three counts under the Criminal Procedure Code and the Emergency Regulations (sec. 28 and 29). Under these circumstances, the demand for Fonseka’s release should not be based solely on the punishment meted out by the court martial. Given these facts, it is rather unfortunate to note the rather immature, emotive and politically motivated plea made by Ven. Maduluwawe Sobhitha Thero. If 100 monks are ready to go to prison to save Sarath Fonseka, how many more would be needed to save him if he is imprisoned again? Such pleas just add more humor to what should not be a humorous matter.
The possibility of Sarath Fonseka being imprisoned by the civil courts on a future date should not be written off so easily. At least, the government seems to be acting in a way that shows that it is confident of Fonseka going in again, or that more years will be added to his current term in prison. Members of the government keep stressing the fact that a Presidential pardon could be expected only if the plea is seen to be coming from the correct channels (i.e. through the family members of Fonseka). But why should the government, or President Rajapaksa, show any willingness to pardon Fonseka, after having done so much to ensure that he is convicted and jailed? Surely, this would show that all is not over yet. Surely Ranil would know this too.
One important reason why this fact of ‘imprisonment’ should not be taken lightly is due to the implications that arise when a Member of Parliament is imprisoned. The imprisonment of Fonseka means that sooner or later, one would need to asses whether or not Fonseka would be able to enter Parliament through an election as per the provisions contained in Chapter XIV, Article 89, of the Constitution, and if he is able to, when that could happen. That is why the imprisonment of Fonseka means so many things to so many people.
For the current administration, it is a sure way of ensuring that he does not pose a threat of any sort, even on the issue of war-crimes in the future. For the likes of Ranil, this ensures that the man, even if released, would not easily return to Parliament for quite some time. Hence, pardoning Fonseka is certainly not in the interest of President Rajapaksa or Ranil Wickremasinghe. But they still don’t lose much, if on a later date, the civil courts imprison him once again. Therefore, the fate of Fonseka’s political career seems to be somewhat clear, and all what the politicians are engaged in seems to be a mere political act.
Given all this, Sarath Fonseka is stranded. Under these circumstances, one wonders where his erstwhile supporters are, one being former Chief Justice Sarath N. Silva. One cannot forget the way in which Sarath N. Silva defended Fonseka, quoting so eloquently, inter alia, the provisions of the International Covenant on Civil and Political Rights (ICCPR) to assert that Fonseka’s fundamental civil and political rights were violated. But much could have been done by the Opposition to exert some pressure, had there been no doubt on Sri Lanka’s status concerning the First Optional Protocol to the ICCPR. Sarath Fonseka, having exhausted all the domestic remedies available to him (as required under the Protocol) could have approached the Human Rights Committee to obtain its views if he had felt that his fundamental rights had been violated. These views could have been used by the Fonseka campaign internationally, which would have undoubtedly been of some persuasive value (even though they would not have any legally binding effect).
But then, this is not possible, since it is former CJ Sarath N. Silva who held, in the Singarasa judgment in 2006 that Sri Lanka’s accession to the ICCPR Optional Protocol was inconsistent with the provisions of the Constitution, and that the accession does not have any legal effect within the State. Therefore, at a time when one would have just expected Sarath N. Silva to step forward and try to rescue his ‘friend’, Sarath N Silva goes missing. Unfortunately, he too seems to have played the political game and ditched Fonseka (on a related note, it is also no wonder as to what the fate of the ICCPR Optional Protocol would be under these circumstances, and quite ironically, the government seems to have been ‘saved’ by Sarath N. Silva’s judgment).
Is this then the end of Sarath Fonseka’s political career and who are his political friends? When would he come out, or could he? Is his release of any genuine concern to those politicians leading the Fonseka-campaign today? Whether all this would matter much, one does not know. For, who was Sarath Fonseka to them but a mere plaything with which they could play little political games whenever the necessity arose? That was perhaps why the man who was one day branded unfit to lead even a Salvation Army according to some, was suddenly good enough to lead the country the next day.
(Kalana Senaratne, LL.B., LL.M. (University College London) is currently a postgraduate research student at the Law Faculty of the University of Hong Kong)