Accountability, Rule of Law and Good Governance

 by Shanie

"Sovereignty is something that cannot merely be preached but must be exercised. It is a fundamental tenet of sovereignty that the Government and its security agencies must have the monopoly of the use of force within its jurisdiction and no other entity within or outside the country can be allowed to impair that authority thereby undermining the rule of law. When a government is unable or unwilling to exercise that authority for whatever reason, certain crimes go unpunished; certain offenders enjoy impunity and certain investigations waver. When that happens, the principles of asserting the monopoly of the use of force and upholding the rule of law will be undermined and correspondingly, the exercise of sovereignty will be impaired."

(May 14, Colombo, Sri Lanka Guardian) That quotation was from the 2011 Professor J E Jayasuriya Memorial Lecture that was delivered by Mr H M G S Palihakkara, one of our distinguished former diplomats and member of the Lessons Learnt and Reconciliation Commission. In that admirable lecture on the foreign policy challenges that post-conflict Sri Lanka faces today, Palihakkara went on to state that it was necessary for us to understand that in today’s world, our sovereignty can be safeguarded only to the extent that we learn to live with other nations in an inter-dependent and not in an adversarial way.

"Sri Lanka has signed international treaties and other agreements, each of which require us to share with other countries and multi-lateral institutions reports and rationale for some of our sovereign decisions. This certainly is not a subjugation of our sovereignty to anyone else. This is an act of exercising our sovereignty and expression of the strength of character of our system to be transparent, accountable and reasonable, first to ourselves and then to others."

The thrust of Palihakkara’s lecture was that Sri Lanka, which has in the past enjoyed a diplomatic profile disproportionate to its geographic or demographic attributes and military or economic clout, should be able to show the world that our country, after emerging from an injurious and costly conflict, still retains the strength of character and the political will towards introspection; to look at our own track record and see if we had gone wrong somewhere and if we had, what remedial measures we can, as a civilised society, undertake and what course corrections should be made. We should encourage the building up of a society where peaceful dissent is seen as an enriching experience and an exciting democratic challenge and not an act of treachery or treason.

UNSG Panel report and our response

The seemingly orchestrated reaction to the report of the UNSG’s Panel of Experts runs counter to Palihakkara’s prescription of what is required to be done to meet the challenges of reconciliation and accountability. The UNSG visited Sri Lanka in May 2009 at the end of which the UNSG and President Rajapakse issued a joint statement. In that it was stated: "Sri Lanka reiterated its strongest commitment to the promotion and protection of human rights in keeping with international human rights standards and Sri Lanka’s international obligations. The Secretary General underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law. The Government will take measures to address these grievances."

The Government of Sri Lanka’s response to the implementation of this accountability process was the appointment a year later of the Lessons Learnt and Reconciliation Commission. The mandate for the LLRC however was to inquire into the facts and circumstances which led to the failure of the ceasefire agreement of February 2002 and the sequence of events that followed thereafter up to May 2009; whether any person, group or institution directly or indirectly had any responsibility in this regard; lessons learned from this; reconciliation, etc. The wording of the mandate can clearly be seen to be focussed on the failure of the ceasefire agreement signed by the UNP government of 2002. There was no reference to any accountability process for addressing violations of international humanitarian and human rights law, as agreed with the UNSG.

It must however be said to the credit of the LLRC that they interpreted their mandate more broadly than the limited way it was worded. Initially, the submissions from government officials and others was limited to the UNP Government’s ceasefire agreement and the violations of it by the LTTE; but towards the latter stages, the Commission visited the North and East and listened to the stories of some of the victims. The absence of a Witness Protection law in Sri Lanka and the inability to prevent some witnesses who came forward to lodge their complaints before the LLRC from being photographed by interested parties was however an impediment. But that the LLRC at least showed an interest in listening to some stories was encouraging. It gave greater credibility to the LLRC, even though the UNSG’s Panel thought it lacked a victim-centred approach, like that of Truth and Reconciliation Commissions in South Africa and elsewhere.

One can disagree with some of the conclusions of the UNSG’s Panel (as their characterisation of the LLRC as being deeply flawed), but what is regrettable is the manner in which people who should seemingly know better have condemned that report. It was undeniably within the mandate of the UNSG to appoint a Panel of Experts to advise him on the issue of accountability with regard to the alleged violations of international humanitarian and human rights law during the final stages of the armed conflict in Sri Lanka. The Panel acknowledges that their mandate did not extend to fact finding or investigation. They only analysed information from a variety of sources and determined an allegation to be credible based on primary sources which the Panel deemed relevant and trustworthy and where there was a reasonable basis to believe that the underlying act or event actually did occur. It is these credible allegations into which, they have recommended the Government of Sri Lanka should initiate an effective domestic accountability process in line with international standards.

Diplomacy and Parish Pump Politics

The Minister of External Affairs, in an effort to discredit the Panel’s Report, is quoted as having stated that Panel had referred to the LTTE as ‘the most disciplined’ group. This is not the first time that the good Professor has engaged in casuistry and deliberate misrepresentation. This instance is another example. To put into context, we quote the relevant paragraph from the Panel’s Report giving a historical and political background to the conflict: "The LTTE began as a Tamil liberation movement and eventually became the most disciplined and most nationalist of the Tamil militant groups, emerging as the dominant force espousing a separatist agenda in the mid-1980s. During this period, the LTTE adopted increasingly violent tactics, using violence to silence other Tamil groups, while asserting itself as the self-appointed, sole representatives of the Tamil people. Its elusive leader, Velupillai Prabhakaran, demanded absolute loyalty and sacrifice and cultivated a cult-like following. Internal dissent was not tolerated; those suspected of working or cooperating with the Government were labelled traitors and often killed. LTTE violence directed against Tamils caused deep fear and suspicion within the Tamil community." Very few will disagree with this assessment of the LTTE but the good Professor, by selectively quoting a phrase out of context, tries to show this as a bias in favour of the LTTE! Obviously he has discarded his past academic credentials and now, perhaps for all the wrong reasons, engages in parish pump politics.

The need for further investigation by an independent accountability process as recommended by the UNSG’s panel is further emphasised by a report in Thursday’s Island. Referring to the ‘white flag’ incident, the Panel’s report stated that the offer of unconditional surrender by the LTTE leadership was conveyed to various foreign and local officials, including the three Rajapaksa brothers. The report says both the President and Basil Rajapakse provided assurances that their surrender would be accepted. But Shamindra Ferdinando’s Island report headlined ‘Blake’s abortive bid to save cornered Tigers in 2009 revealed’ inadvertently raises some important questions. The report states, quoting a Wikileaks exposure: "Ambassador (Blake) spoke to Gotabaya Rajapaksa on the morning of May 17 to urge him to allow the ICRC into the conflict zone to mediate a surrender. Rajapakse commented, ‘’We’re beyond that now,’ reporting that 50,000 civilians had escaped from the conflict zone overnight and in the early morning hours, and very few remained." This was in keeping with Government claims then that only 70,000 civilians remained in the conflict zone. Apart from the inaccuracy of this claim when over 280,000 came over from the conflict zone, the question that needs to be investigated are the circumstances under which the two or possibly three LTTE leaders were killed when they came out of the conflict zone.

The Ministers and deputy Ministers lf the Government are now going round the country obtaining signatures to a petition to be sent against the UNSG’s Panel report. Reports from Jaffna indicate that a Deputy Minister descended there last week-end with scores of able-bodied young men to obtain signatures to the petition. No doubt, the deputy Minister will tell us that the able bodied young men were there to use gentle reasoning to convince the people of Jaffna that the petition needed signing. Petitions, however obtained, cannot wish away the concerns raised on accountability issues. Neither will open letters written to the UNSG by nondescript local politicians nor abusive cartoons and words from the jokers in the pack.

This is why Palihakkara stated that diplomacy was all about dealing with people with whom we disagree or agree to disagree. Diplomacy was not a zero sum game of cultivating one or one set of friends at the expense of another. Diplomacy, he said, was also about seeking common ground where none seemed to exist. This is especially so when such common ground may eventually bring benefits to the nation, not only in terms of investment and economic activity, but also in the form of its image and reputation as a civilised society.

Palihakkara ended his Lecture with a home truth: "It is important that Sri Lanka’s political establishment gets back to the path of bipartisan foreign policy making of the past rather than allow vital foreign policy interests to be dissipated by parochial electoral politics. Governance and foreign policy are functionally linked. When governance is in deficit, diplomacy cannot acquire merit all by itself....It is the job of the foreign policy maker to sensitize those who govern to this stark reality. This may be quite a challenge but one that must be taken up."