Examining the international war crimes cry

by Kishali Pinto Jayawardene

(June 14, Colombo, Sri Lanka Guardian) So here we are, caught once again in the debilitating cross fire of international calls for a war crimes investigation on the one hand and on the other, (internally) by the misdeeds of a remarkably conscienceless administration. Is this a vicious circle that we can never free ourselves from? This question attracts discussion at several different levels.

A question of strategy

First, it appears to make only mischievous sense to engage in calls for international war crimes investigations on precisely the first year anniversary of the ceasing of active conflict in Sri Lanka. What do such actions hope to achieve? Are we so naïve as to think that well meaning outrage at the atrocities of the conflict at the best or diasporic pressure at the worst will result in an international inquiry against Sri Lanka, given the realpolitik of the day? Do such calls improve the lot of the internally displaced persons of Tamil ethnicity coping with unbelievable hardships in the northern and eastern parts of this country? Or is their plight secondary to the seemingly overwhelming urge on the part of some to engage in counterproductive rhetoric from comfortable capitals overseas?

Peculiarly, it is precisely at the very points at which some stirrings of discontent are evidenced domestically against this government, that we hear calls for international investigations. The inevitable result is, (almost miraculously it seems), renewed public support for an administration that is still perceived internally as having stood up to archetypical bullies in going against the LTTE. At such points of time, I am inevitably reminded of the reactions of a reasonably level headed Middle Eastern watcher and a good friend of mine, who is by no means a supporter of the government but who turns almost incandescent with rage each time that the international war crimes call is reiterated. The reasons for his anger are many, Iraq and Afghanistan being only some of them.

But the point is not the most obvious double standards that this debate engenders or even the most sensible counter argument that what is wrong in one situation does not make it right in another. Rather, it is the political capital that such unwise interventions can afford to an authoritarian regime bent on not only subjugating a minority but also changing the Constitution to perpetuate one party and one family rule. Each time that there is domestic credence to the perception of international double standards, there is added impetus to this administration's push to take back precious libertarian reforms that have been won through decades of political turmoil and with great difficulty.

Standing up for courage

The judicial process is, of course, central to this discussion. There are many relative newcomers to the complexity of Sri Lankan politics who continue to be under the misapprehension that the evil began and will most probably end with Rajapaksa rule. This is most certainly far from the truth. The constitutional reforms that this government are playing around with, including the subordination of the Attorney General's Department, have had their most distinctive precedents in the seventies and eighties, though it is sought to be said otherwise now by key players at that time.

Again, in her time, then President Chandrika Kumaratunge was responsible almost single-handedly for the near total subversion of the country's judicial systems in her obstinate determination to appoint then Attorney General Sarath Silva as Chief Justice in 1999, a decision that she came to regret later at a point when it became inconvenient for her. The damage done to the system was however far more incalculable than the damage done to one individual as a result of what may only be termed, (somewhat kindly), as chronic insecurity. We are still living with the results, if not the diabolical consequences of these actions.

And in a sense, what has happened to the judiciary now marks a clear departure point from the past. Even with the worst of government intimidation in the past, we had strong public support for an independent judiciary and an independent bar. But do we have that now? When judges or state lawyers take bold positions in challenging the government, who is there to support them? This is a question that we should ask ourselves as citizens.

Rule of Law and GSP Plus

Yet this is not to say that the government has been totally successful in enveloping all dissent in the usefully protective banner of pro-LTTE and anti-patriotism sentiment. The debate surrounding the GSP Plus trade facility is one good example. Notwithstanding waves of propagandists attacks in the government friendly newspapers, (and by this is not meant only the state media), that this too was part of a diabolical pro LTTE effort, the truth of the matter was that the investigation was primarily on Rule of Law concerns including the politicization of the judiciary and continuing deficiencies in the legal protection of rights. It had become abundantly clear that there were cause for concern.

The government's earlier obdurate stance in demanding this trade facility appears to have given way to a far more conciliatory approach. To this end, it is little secret that the pardoning of journalist JS Tissainayagam and the relaxation of some aspects of emergency laws was not due to the magnanimity of the current administration. Whether the GSP Plus suspension will be lifted, made permanent or extended in August remains to be seen. For the sake of the thousands of women garment workers who will be directly affected by the formal withdrawal of this trade facility, it is hoped that a positive outcome will be evidenced.

However, as much as these sporadic actions may be put forward as evidence of this government's bona fides and change of attitude, the fact remains that constitutional protections against authoritarianism are in a worst state than ever. The only credible political challenger to the Rajapaksa Presidency appears not only to be facing a court martial but also public execution by all accounts and it seems almost certain that the 17th Amendment to the Constitution will be wholly scrapped. And are we being asked to put our faith in glossy training manuals for the police when the police itself remain even more politicized than ever?

Confronting an authoritarian government

This column has repeatedly emphasized the fact that the travails faced by this country should essentially be ours to confront and to overcome.

It is to this end that shortcomings in our legal systems, our judicial institutions and our prosecutorial processes have been exposed through substantiated study and rationally discussed. And it is with this objective that a full frontal and beautifully unapologetic attack has been made on asinine Commissions of Inquiry that this government and others before, have seen fit to appoint. This applies to the latest such effort. What is the meaning of Truth? What is the meaning of Reconciliation? Does it make sense to establish a Commission of Inquiry with such grandiose objectives without the basic precondition of an acknowledgement of atrocities that have occurred? This was core to the South African experiment after all, which, by the way, was singularly unsuccessful in some other African countries which tried to follow suit.
Putting an end to the vicious circle

We need a strong body of informed public opinion which rejects these face saving exercises. This is however easier said than done when societal changemakers such as professional bodies, academic bodies and trade unions have become complicit partners in this game. Not so long ago for example, the majority among those who accepted unconstitutional Presidential appointments to the earlier independent commissions on the police, the public service and others were lawyers and judges.

However, as difficult as this process of change is, it is in this way and this way alone that slowly but surely an authoritarian government can be confronted in its tracks, not by rhetoric from international capitals. In effect, the responsibility remains ours, collectively and individually. Yet as long as this vicious circle of international war crimes and domestic reaction continues, the people of Sri Lanka will have bleak choices indeed.