Sweet logic and commissions of inquiry

by Kishali Pinto Jayawardene

(October 24, Colombo, Sri Lanka Guardian) The sweetly logical and more than faintly aggrieved protestations that we hear from government spokespersons, including in particular, the Minister of External Affairs, implore us to give Sri Lanka’s Lessons Learnt and Reconciliation Commission the benefit of the doubt rather than prejudge it unfairly.

Doubtless the more charitably inclined among us would like to believe these protestations against all odds. Yet, for such beliefs to be encouraged, much more needs to be heard than mere words. Can there indeed be lessons learnt or reconciliation without justice in this country? And by justice do we mean only superficial and weary promises, for example, that language would no longer be an issue in the North and East in the dealings of people of minority communities with government offices and officials?

Recommendations regarding language rights

From the 1977 Sansoni Commission downwards, we have been hearing this promise with no actual impact on its ground reality. The Sansoni Commission was one of the earliest bodies to recognize the fact that language was a root problem associated with communal unrest. Commissioner Sansoni’s assertion was that the Tamil language should have been recognized as a national or ‘even as an official’ language before 1978 (see the Sansoni Commission report, Sessional Paper No. VII, July 1980, at p. 73).

Writing the report in 1980, Commissioner Sansoni preferred to believe that this problem had been remedied by the 1978 Constitution’s express recognition of Tamil as a national language (Article 19) while further providing for its use as a medium of instruction, as a language of legislation, administration and of the Courts. (Articles 21 to 25). He exhorted the government to take steps to implement these provisions without delay lest it be thought that the recognition given to the Tamil language is ‘an empty thing.’

But what is the actual reality of the implementation of this policy? As studies by the Official Languages Commission themselves have shown, the language issue remains of troubling concern, even decades later. In an interview published in this same newspaper in 2009, the practical impact of two circulars issued in early 2007 in regard to the implementation of the language policy have been found to be negligible (see interview with Mr Raja Collure, ‘Official Languages Policy - mere rhetoric?’ The Sunday Times, 05.07.2009).

Concessions to the minorities and past Commission exercises

In any event, are we supposed to believe that victims of the conflict that had ravaged Sri Lanka for so many decades would be happy if some concessions are thrown to them, out of the benevolence of the majority community and let it rest at that? Let us look at the reality and see why cynics react so harshly to government protestations that Commission exercises are intended genuinely.

In 2006, when the Udalagama Commission of Inquiry was established to look into particular cases of serious human rights violations, this columnist, among others, predicted that the entire exercise would be a total waste of time, energy and money. Then, these same protestations were heard. We were informed that we were not even giving this Commission a chance.

But what happened thereafter was predictable. The failed interaction of the Udalagama Commission with the team of international observers headed by former Indian Chief Justice PN Bhagwati, was only part of the unpleasant drama that dogged this Commission. Though government propagandists sought hard by conveying the impression that the observers were anti Sri Lankan, (with the impression that they were pro-LTTE), this was actually far from the case.

Many of these observers were well known and respected jurists in the field of international human rights law who were aware of Sri Lanka’s juristic reputation in past decades in the Commonwealth and were certainly not ill intentioned towards Sri Lanka at all.

Yet due to a lamentable lack of diplomacy if not open hostility on the part of those representing the government in dealing with them, resulting in equal antagonism in return, the Commission itself was unable to keep the peace ultimately and open warfare erupted resulting in the observers pulling out.

Even if one were to take this fiasco entirely out of the reckoning, the fate that befell the Udalagama Commission was telling. In 2009, it was compelled to disband ignominiously with a considerable proportion of its cases still remaining uninvestigated, when its term was not extended by the Presidential Secretariat. As was commonly accepted at that time, this was a Commission exercise intended to placate the international community and assuredly not to bring at least some measure of accountability to the table.

Cynicism apparent at different levels

Insofar as the current situation is concerned, it is not merely the past history of these Commissions of Inquiry that underscores as to why very few people do not believe in these exercises. The cynicism that greets such Commissions in Sri Lanka is heightened for very basic and commonsensical reasons.

Simply put, we have the Office of the Presidency consolidating more and more power in itself, as evidenced by the wholesale disposing of the Constitutional Council. This means that even if the long suffering constitutional commissions on the public service, the police and elections and the National Human Rights Commission, among others, are established within the coming months, public trust in their independent and credible functioning will be greatly diminished. No doubt we will have lawyers and retired judges rushing to accept appointments to these bodies in the same way that they did when President Mahinda Rajapaksa disregarded the mandatory conditions of the 17th Amendment and made his own appointments some years back. However, the mere establishing of these bodies without the necessary ingredients of independence and credibility will accomplish very little. Surely even a first year law student would realize this?

Then again, we have amendments to the local government laws being contemplated that will centre more authority in the ruling party presently holding the electoral reins. We have a pending proposal to convert the Colombo Municipal Council into a private authority ostensibly on the argument that the entity would be run more professionally. We have the Department of the Police continuing to be situated under the aegis of the Ministry of Defence, (surely a most startling proposition in peacetime, whatever the arguments there may be during the conflict). The Office of the Attorney General functions under the President with attendant negative implications on its independence and credibility.

Learning lessons from the past

In such a context which speaks not to democracy and the rule of law but to the exact converse, namely blatant authoritarianism, is it feasible to believe that a body such as the Lessons Learnt Commission is a genuine exercise? Attempts by government spokesmen to liken this Commission to the South African Commission on Truth and Reconciliation are laughable. The mandate and context of the South African body and the Sri Lankan Commission are substantially different so as to virtually belong in two different worlds and deserve detailed analysis elsewhere than in a newspaper column.

Even with the best of will and taken at its kindest interpretation, we may even believe in the idea of a Lessons Learnt Commission in a post war Sri Lanka, (and perhaps the bona fides of the Commissioners themselves), but assuredly not in the bona fides of the government in having the political will to make this Commission exercise different from its predecessor. Sweet words and injured protestations will not suffice to disprove this inevitable cynicism. If this government is keen on actually learning lessons from past history and in promoting reconciliation, it does not need yet another imaginatively termed Commission. Rather, it should peruse the numerous reports of past Commissions of Inquiry from the 1950s headed by reputable and committed Sri Lankans which have handed down concrete and carefully thought out recommendations on achieving truth, justice and reparations not only for the minority communities but for Sri Lanka’s majority community as well. The recommendations handed down by these Commissions are presently confined to the paper on which the reports are written. These recommendations should be immediately implemented.

Perhaps then we may justifiably welcome Commissions of Inquiry, (on Lessons Learnt and Reconciliation or otherwise), with a little less natural mistrust.