A question of systemic abuse rather than a few excesses

| by Kishali Pinto Jayawardene

(December 04, Colombo, Sri Lanka Guardian) Defence Secretary Gotabhaya Rajapakse's keynote address at the inaugural "National Conference on Reconciliation - the way forward for post conflict Sri Lanka" held at the Lakshman Kadirgamar Institute for International Studies late last month, is a provocative indication of Sri Lanka's apparent change of heart in regard to the accountability question.

Honest acknowledgement of past mistakes

Very few would quibble over his opening remarks in regard to the potent value of the late Foreign Affairs Minister Lakshman Kadirgamar's observation that all those who live in Sri Lanka are first and foremost Sri Lankans. This holds true also in regard to the destructive modus operandi of the Liberation Tigers of Tamil Eelam, which ultimately resulted in even greater misery for the Tamil people living in Sri Lanka, however much this may be denied by some in the Tamil diaspora and others naïve enough to accept their propaganda wholesale.

President Rajapakse - Getty Images

However, what follows thereafter in the Defence Secretary's address is as much a denial of the responsibility of the Sri Lankan state towards its citizens as the denial by a blinded diaspora in foreign capitals in regard to the role and actions of the LTTE. Each approach is characterised by the same willful refusal to own up to colossal mistakes on the part of each protagonist to this conflict which has sapped Sri Lanka dry of every ounce of its democratic energy. Honest acknowledgement of these mistakes is essential to the reconciliation process which this government is fond of proudly parading.

It was on this firm understanding that the truth and reconciliation process in South Africa went forward. Without that essential ingredient, this experiment would have been a failure as much as attempts to imitate this process in other parts of conflict torn Africa have failed in contrast. Sri Lanka's truth and reconciliation process will also be a similarly spectacular failure if mere words and phrases are used to mask a complete absence of the Rule of Law in governance and justice processes. Without the integrity of the country's justice system and judicial institutions, bringing about truth and reconciliation between communities can only be a joke. This is a fundamental reality which needs to be faced.

Critical public opinion from a national base

There is not much one can do about the blindness of the pro-LTTE Tamil diaspora, their supporters or their propagandists. However as Sri Lankans who have consciously decided to live and work in this country, there is a tremendous responsibility on us to bring our own government and its spokespersons to order, however unpalatable that task may be. As this column has repeatedly stated, it is critical public opinion that must shape and fashion Sri Lanka's approach to accountability, emanating not from the country's 'intellectuals' who have (with significant exceptions) failed their responsibilities in the most craven manner but from a wider national base which has, on many earlier occasions, taught their seemingly omnipotent rulers some enduring lessons of political humility.

Frequently we hear the cry that this government is too strong and too draconian for public opinion to have any impact. But this is a false presumption, adopted for our own convenience rather than anything else. Even during the past most difficult two and a half years since the ending of active conflict in May 2009, there have been instances, (the withdrawing of the Pension Bill in the South and the defeat of the ruling party in many local government bases in the North and East as well as Colombo being some examples) where this government, as juggernaut as it may be, yielded to intense public pressure when threats and inducements failed. Taking this momentum to a critical mass is, of course, an imperative and calling the government to account for its failure in regard to protecting the rights of its citizens within the framework of the Rule of Law should be the necessary catalyst.

Systemic problems rather than individuals

So we return to salient aspects of the late November speech by the Defence Secretary which classically illustrates much that is wrong with the government's approach to accountability. Let us look at this address analytically, critically and objectively. Of particular note is the statement that 'it needs to be understood that during the three and a half year period of the humanitarian operation, the Sri Lankan military had to be expanded at a rapid pace. it is possible that a few individuals who lacked the capacity to withstand the pressures of warfare with the required composure may have been recruited. This is not a very unusual thing in warfare, and there have been unfortunate examples of excesses by individuals in each and every war that has been fought, whether in the World Wars, Vietnam, Afghanistan or Iraq.'

This is a clear concession that at least some human rights abuses were committed during Sri Lanka's war. Some may point to this concession as an improvement on the government's earlier most unsustainable contention of zero civilian casualties. However, does this concession, which attempts to confine the problem to a question of some rogue personnel, suffice?

A similar argument was made by state authorities some years back in the context of torture in Sri Lanka. Last week, the United Nations Committee against Torture issued harsh Concluding Observations in regard to Sri Lanka's combined third and fourth periodic report submitted under the Convention against Torture, indicating that the dramatic posturing of government spokespersons at this hearing had not impressed the Committee members. Sri Lanka was, among other things, called upon to effect changes in law and practice that would lead to practical changes in law enforcement and lessen the prevalence of torture. Particularly, the right of a suspect to an independent lawyer, to be given an independent medical examination and to establish the offence of enforced disappearances in domestic law, was emphasized. The Committee also expressed concern regarding the ineffectiveness of the writ of habeas corpus and called for the speedy enactment of a good witness protection law.

The point is however that debates on torture in Sri Lanka have undergone tremendous transformation in recent decades. Many years back, when it became indisputable that torture was taking place in detention centres and prisons, past governments said in defence that these were just few officers who had gone beyond their call of duty and that the stresses of conflict were to blame. It was only after painstaking documentation revealed that use of torture was endemic and practiced equally brutally on a teenager of Sinhalese ethnicity for trying to steal a bunch of plantains through sheer hunger as much as on a Tamil person in order to induce a 'confession' from him, that these defences began to look clearly ridiculous. The problem then became systemic, relating to the breakdown of institutions and the justice process rather than a problem of a few individuals who had trespassed beyond the law.

A complete overhauling of the justice process

We need to ask ourselves the question as to how applicable this same logic is to the question of accountability in warfare which is now the central point of discussion in regard to Sri Lanka. It is now ordinary to focus only on the civilian deaths that occurred in May 2009 and the months immediately preceding. But there is also the vitally important question of extraordinary human rights violations that occurred from the year 2006, most notably the killing of five Tamil youths in Trincomalee in January 2006 and the executions of seventeen aid workers in Mutur later that year. The subversion of the judicial processes relating to these inquiries and the premature winding up of a Commission of Inquiry which was examining these and other incidents of grave human rights violations during this period, which report still remains unpublished, are still fresh in our memory. This should also be part of the accountability process, surely?

This difference in approach will inevitably lead to different outcomes. Thus, the first approach of acknowledging illegal actions on the part of few, even if taken to its highest point, will only lead to the prosecution and punishment of some isolated individuals while allowing the power apparatus which allowed these abuses to take place, to remain. This power apparatus, by the way, is not peculiarly a phenomenon of this Presidency alone even though it may have been taken to unpleasantly dizzy heights now. Rather, it has always been gradually in the making but glossed over by constitutional sophistries that have now all been stripped away. The second approach will look at the overhauling of constitutional institutions, the bringing back of a revised 17th Amendment, the displacement of absolute power whether in an Executive Presidency or otherwise and the gradual reinvigoration of Sri Lanka's democratic bodies that protect the rights of people through fearless judges, conscience driven professionals and academics as well as media and public opinion that is unfettered by hopelessness, fear or pressure.

This second approach has to be the way that Sri Lanka should go and it is only within this ambit that a truth and reconciliation process can derive any meaning. This is not only the most strategic approach. It is also the most honest approach. The future of this country will depend on whether we have the wisdom to take this approach in the months to come and whether we have the courage to compel those in the seats of government to recognize this fact.