The faults lie in our political leaders

by Kishali Pinto Jayawardene

(February 13, Colombo, Sri Lanka Guardian) There is an artfully embroidered line of reasoning advanced by some that Sri Lanka’s Commissions of Inquiry went wrong in the past due to the faults of those Commissions themselves. Consequently, as this reasoning appears to suggest, if a particular Commission of Inquiry (say, for example of Lessons Learnt and Reconciliation) functioned perfectly well, that would be reason enough to believe it would lead to fruitful results. We could then rest complacent that we have done our civic duty.

Fundamentally faulty Commissions

This is, of course, dangerously fallacious reasoning in that it states only half the truth. The logic that Commissions themselves were fundamentally faulty is unreservedly true of some past efforts. Good examples of this were the Commissions established by Presidents R.Premadasa and DB Wijetunge during 1991-1993 in reference to the killings and disappearances of suspected Sinhalese militants during the UNP terror era, the reports of which have not even been made public to-date.

A more recent example of a Commission report that has similarly been hidden from public gaze is the 2006 Udalagama Commission of Inquiry constituted by President Mahinda Rajapaksa to examine violations during the war with the LTTE, regarding which Commission much has already been said to the extent that nothing more is left to be remarked upon.

In similar vein, the incongruously named 2001 Presidential Truth Commission on Ethnic Violence brought into being by former president Chandrika Kumaratunga was denigrated this week as a ‘rent seeking exercise’ from within the ranks of government (see Prof Rajiva Wijesinha, The Great War Crimes Game- 3, The Island, February 12 2011). Thus ‘…far from seeking the Truth, it turned into yet another mechanism to distribute money to victims and supposed victims of the riots.’

Despite its name, this spectacularly ineffective ‘Truth’ Commission headed by a retired Chief Justice of Sri Lanka was a mockery of the profoundly meaningful truth and reconciliation experiences of South Africa, as has repeatedly been said earlier in these column spaces (see for example, Focus on Rights, November 5, 2006). On occasion however, overhasty defenders of this administration have thought otherwise as was evidenced in a panel discussion on Commissions of Inquiry during the course of last year when a state law officer who assisted this ‘Truth’ Commission appeared to feel that the payment of paltry sums of money to victims of the July 1983 riots sufficed to absolve the Commission of any further responsibilities in that regard. It is good to know that this blanket defence is departed from in some quarters.

Let us not forget the good efforts

But were all past Commissions this ineffective? Let us take Kumaratunga’s 1994 Disappearances Commissions Reports as fitting examples to prove this point as these did far more than issue death certificates and trace missing persons. Despite impractical time limits, insufficient resources and a host of other logistical problems, these Commissions resisted political pressure from the Kumaratunga regime to engage in a witch hunt against political figures of a previous administration and presented impressively detailed and soberly reasoned recommendations which, if implemented, would have gone a long way towards redressing the deficit of justice that this country faced in later years.

The Commissions persistently reiterated the need for an Independent Human Rights Prosecutor to be established as an institution similar to the Commissioner of Elections and the Auditor General with funds provided by Parliament. Significant changes were recommended to the law relating to the burden of proof. Superior officers were recommended to be held criminally liable for violations committed by subordinates under their command in appropriate instances. The establishing of legal aid services and citizens’ assistance bureaus were suggested. Virtually all these recommendations were ignored. Instead of taking even incremental steps to make the Office of the Attorney General independent, Kumaratunga unpleasantly distinguished herself by irreversibly politicizing the institution of Sri Lanka’s judiciary.

Recommendations in regard to reparations were also ignored excepting (again) in the payment of measly sums of money to family members of the ‘disappeared.’

The turning of a nelsonian eye

Overwhelmingly, Sri Lanka’s lessons are that Commissions have failed not due to their own defects but owing to the singular hypocrisy of political rulers who have used these bodies to shrug away their own responsibilities. This indictment should be levelled against President Mahinda Rajapaksa as much as it should be against former President Chandrika Kumaratunga and indeed, her predecessors.

We should be equally harsh of the current political leadership in its hypocrisy towards establishing a Commission of Inquiry purportedly on reconciliation while the report of the immediately preceding Udalagama Commission (which was wound up prematurely and ignominiously) still remains shrouded in mystery. Or for that matter, in expecting us to take commissions on reconciliation seriously where constitutional institutions in this country remain more politicized than ever, the 18th Amendment has become a predictable farce with its desperate supporters suggesting that constitutional commissions be set up even as a ‘sham’ and the National Anthem has become an inflammable issue.

Castigating the faults of one while turning a proverbially nelsonian eye to the faults of the other, is just not acceptable.