Getting to the truth of Nandikadal - part two

| by Kishali Pinto Jayawardene

(November 06, Colombo, Sri Lanka Guardian) Continuing the discussion on the vexed question as to what accountability means to Sri Lanka which was focused on in last week's column, it needs to be emphasized that ultimately the truth as to what happened in Nandikadal in May 2009 has to be part of a larger and more inclusive process of justice in Sri Lanka based on the Rule of Law and seen to be equal in effect to all Sri Lankans.

When the basic concept of justice is lost

This process cannot be limited to truth telling and reconciliation but it must be definitively linked to the restoration of integrity in Sri Lanka's justice institutions. One cannot have reconciliation in a vacuum and it is quite absurd to even think of true healing of communities and societies when the concept of law and justice has lost all value. What can devolution mean when the entire concept of a Constitution has lost all meaning? How can citizens of the North and East be served with justice according to law when basic law and order is lost in other parts of the country?

The point is that there are mandated procedures under international treaty bodies to which Sri Lanka has signed onto, which provides for the consideration of petitions for redress when local courts failed in delivering justice. And for all its threatening signals, the Government of Sri Lanka will not withdraw from or denounce these treaties.

So, while foreign governments and others wait anxiously for the report of the Lessons Learnt and Reconciliation Commission due to be out in a few weeks time, it must also be said that even if all its critics are wrong and its report is one of the best Commission reports that this country has ever produced, it can still have little impact if the Office of the Presidency continues to be above the law, if the prosecutors continue to be politicized, if the judiciary continues to be intimidated and if the police continues to be the willing or coerced handmaidens of politicians or politicized public servants.

These are the pressure points at which change needs to be seen. And this change making process needs to be primarily driven by Sri Lankans across the ethnic divide, who remain united in their conviction that nothing is more important to their collective survival. Despite all the disquieting signs to the contrary, awareness that change needs to take place does exist, among professionals, public servants and labourers from Matara to Moneragala, if one takes the rest of the country apart from the North and East, broadly speaking. This discontent needs to be slowly coaxed into open public solidarity, not by relying on a political opposition that has now spent its inconsiderable force but by peoples' movements in much the same way as India.

Diverting attention away from the core issues

In this context, international support, when offered sensitively, is useful. On the other hand, grandstanding in foreign courts by LTTE sympathizers or operatives as the case may be, achieves precisely the opposite effect. These points needs need to be reiterated not merely for effect but for their central value in the accountability discourse in Sri Lanka today. If the attention of the publicity drive at the 2011 Commonwealth Heads of Government meeting was to embarrass the President, it needs also to be said that this is a President who is not easily embarrassed. On the contrary, this week too, we saw continuing fallout of the failed attempts at Perth to initiate legal action citing the President as a war criminal by sections of the LTTE diaspora, when government spokesmen and ministers jostled each other to claim success in regard to yet another 'international victory.'

More tellingly, publicity drives, whether at the Commonwealth meeting or otherwise, by those who were willingly and with full knowledge, part of the LTTE even when they had a choice, merely divert attention from what is actually important, which is catalyzing significant public discontent with the Government and its flagrant flouting of the Rule of Law. The most recent of this trend was the amazingly improper visit by none other than President Mahinda Rajapaksa himself to see a notorious murder suspect cum drug baron in hospital shortly before this suspect was taken overseas for medical treatment in contentious circumstances.

Seeking justice in established international fora

There is also little doubt that going beyond Sri Lanka's shores to demand justice has come about as a result of the perceived and real failures of local justice. As was said previously in these column spaces, these efforts are not all that new. Neither are they limited to victims of one particular ethnicity. From about ten years back, (coinciding with the deterioration in the independence of the country's judiciary), Sri Lankans including a journalist, a teacher of English, a parliamentarian, detainees under terrorism laws and family members of those who had 'disappeared' had increasingly sought refuge in filing individual communications under the 1st Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). The ICCPR Protocal was signed during wiser times when the late Lakshman Kadirgamar handled the portfolio of foreign affairs and the country's image did not resemble quite that much of a destructively rumbustious child spoiling for a fight.

The filing of these cases did not stop with the 2006 retrogressive Sinharasa decision handed down by a Divisional Bench of the Supreme Court presided over by now retired Chief Justice Sarath Nanda Silva. The Bench concluded that Sri Lanka's accession to the ICCPR Protocol was unconstitutional in that the Geneva based United Nations Human Rights Committee (UNHRC) examining individual communications exercised 'judicial power' and therefore the very act of accession to the treaty needed legislative approval and not merely executive approval.

This decision was handed down by the Court despite specific constitutional provision authorizing the executive to enter into the signing of treaties and despite the categorical fact that the UNHRC did not exercise judicial power and merely issued recommendatory opinions to a specific State party. The Sinharasa decision remains part of Sri Lankan judge made law but has not deterred people from utilizing the Protocol remedy.

Loosing even the little notion of justice that is left

The point is that there are mandated procedures under international treaty bodies to which Sri Lanka has signed onto, which provides for the consideration of petitions for redress when local courts failed in delivering justice. And for all its threatening signals, the Government of Sri Lanka will not withdraw from or denounce these treaties.

On its own part, the filing of these applications are not accompanied by the full glare of cameras, by self important pontifications on how 'rogue states' should be called to account and are not determined by international realpolitik. Rather, they are part of a sober legal process, filed under established international legal procedures to which a country has already submitted itself to and therefore necessarily has to respond as a State Party in answer to allegations of violation of treaty rights.

Whether in restoring integrity to local justice or utilizing international remedies, we need to return to some measure of rationality in the way in which we look at the accountability question at several levels. In the alternative, those genuinely wishing to change an extremely disquieting status quo will only lose even the little that is left now of the notion of justice and the Rule of Law in Sri Lanka. Is this what we really need?