Weighing the LLRC report in the scales of justice

| by Kishali Pinto Jayawardene

(December 18, Colombo, Sri Lanka Guardian) Stripped of all ambiguities, the moral question regarding state accountability for civilian casualties during the last stages of the war between government troops and the Liberation Tigers of Tamil Eelam (LTTE) was whether the government deliberately pressed ahead with its military offensive despite knowing full well the terrible toll that it would take.

Implicated in violations but 'without intent'

Past governments had hesitated to go this far, being fully aware of the consequences. But this government did go that distance and there is no question about it. It did not take a soothsayer to foretell that the LTTE, given its abysmal track record, would use civilians to stop the advance of government forces which in fact, it did for what was to be the last time around, at least in this avatar. As to be expected, the consequences were near apocalyptic. The government's conduct, post-war, also fed into the theory that it views the minorities in Sri Lanka as being of little account, to be manipulated and intimidated as the occasion demands it.

Yet putting aside the moral question for the moment, the legal question according to the laws of war is narrowly phrased in terms of whether government policy deliberately targeted civilians or places that were protected such as hospitals in pursuance of its military objective. In its Final Report tabled in Parliament this week, the Lessons Learnt and Reconciliation Commission (LLRC) answered this question in the negative, while stressing that there was a possible implication of the military causing death or injury to civilians 'even though this may not have been with an intent to cause harm.'

The LTTE's using of civilian shields and provoking attacks by the army by placing and using their military equipment in civilian areas, is emphasized. The LLRC concludes this particular part of their mandate by calling upon the government to investigate these circumstances and if such investigations disclose wrongful conduct, to prosecute and punish the wrong doers.

Certain core questions which are unanswered

This conclusion certainly disposes once and for all, of the government's initial and unpardonably flippant defence that there were zero civilian casualties. However, the LLRC's injunction on the government does leave core problems unanswered. Who will take the responsibility to investigate, prosecute and punish in a context where the primary state organs of the police and the prosecutors are near irreparably politicized and where the judiciary itself is increasingly suffering from public perception relating to its independence from the executive or the lack thereof? Do the answers to this vital question emerge from the LLRC report, apart from mentioning the value of an independent judiciary and a transparent legal process in passing? Let us meticulously examine the Commission's reasoning though a comprehensive examination of its findings and recommendations belongs to a different forum.

In the first instance and to give it due credit for doing so in extremely difficult circumstances, the LLRC Report does link up the deterioration of Rule of Law institutions to its mandate, using somewhat surprisingly pungent language when it refers to the weakening of public institutions thereby rendering the general public powerless and helpless to a point that they have become wholly dependent on politicians.

These are reflections that would, no doubt, be shared by all right thinking people in Sri Lanka.

The LLRC applies this conclusion to specific patterns and incidents of violations of human rights that have languished without proper investigation or prosecution. Importantly, it recommends the investigation and prosecution of offenders in the death of 5 students in Trincomalee in January 2006 and 17 aid workers of the aid agency Action Contra L' Faim in Mutur in August 2006. It is stated that such action would send a strong signal in ensuring respect for the Rule of Law, which in turn will contribute to the healing process.

This particular recommendation is a strong point in the LLRC report and counters strenuous attempts by pro-government defenders to cover up these killings or merely attribute them to the LTTE, which theories were given strong support by sections of the private media. Similarly, the Report lays down specific safeguards for arrested and detained persons and expresses serious concerns regarding persons who had surrendered to the security forces at the conclusion of the fighting and had thereafter 'disappeared.' It is reminded that the State has a clear duty to investigate specific allegations, to prosecute and punish the wrongdoers and to treat such a disappearance as an offence entailing penal consequences.

Going that extra mile

The Commissioners draw attention to similar recommendations by past commissions of inquiry, observing with wry humor that as these recommendations had been left unimplemented by successive governments, there has been 'understandable criticism and skepticism regarding Government appointed Commissions from which the LLRC has not been spared.' Coupled with this injunction, it calls for the judicial review of legislation and for the criminalizing of an offence of enforced disappearances, which indeed reflects the thinking of constitutional analysts, legal practitioners and activists for decades. Deploring attacks on journalists, it also calls for the enactment of a right to information law.

But to return to our core question of the Report's recommendations as to the manner in which to reverse the politicization of public institutions, it may legitimately be said that it has refrained from going that extra mile. Certainly it deals with the 'easy' question of the politicization of the police commenting on the testimony of many who had expressed anger that offenders with political patronage had escaped the reach of the law. It recommends, quite rightly, that the Department of the Police be de-linked from the Ministry of Defence. Moreover, it recommends that an independent permanent Police Commission should be established, to regain public confidence in the performance of the police service.

This recommendation has more than a trace of exquisite irony about it given that the President of Sri Lanka has not thought it fit or proper up to now, even to establish a National Police Commission in terms of the existing constitutional provisions, let alone talk of a permanent body of this nature. Here again, the core issue is independence from the executive. A police commission, whether permanent or for a limited period of time, should be completely separated from the executive. While separating the Department of the Police from the Ministry of Defence is an essential step, this cannot, by itself, address the problem.

But where the LLRC has not gone further most particularly is in addressing the subversion of the legal process with its related impact on the independence of the judiciary, (the ACF case is one excellent example), the bringing in of the Department of the Attorney General under the direct authority of the President and the 17th Amendment to the Constitution as well as its ill famed successor, the 18th Amendment. As the LLRC has opted to speak of the Rule of Law, these are fundamental components of that debate, particularly as in a postcript it has adverted to recent incident impacting on law and order.

Using the LLRC report to compel government accountability

Nevertheless and in conclusion, even though the LLRC Report may not be all things to all people, the Commissioners have undoubtedly arrived at difficult conclusions regarding the problem of impunity which would not have been easy given the tremendous pressure on them from all sides. It is also not proper to malign the Commission by stating that their recommendations merely echo past recommendations of previous commissions. This is to simplify the case.

Past reports of commissions of inquiry which were equally hard hitting concerning the duty to prosecute, mainly concerned actions of previous governments in power, not an incumbent administration. The Disappearances Commissions of the 1990's were good examples. In this instance, this is a Commission of Inquiry looking into impugned actions of a sitting government and in that respect, should be at least acknowledged for what it has tried to do, even if the conclusions may not satisfy all and sundry.

This column has repeatedly taken the position that even if the LLRC Report proved to be the best Commission report that we could ever have had, it would amount to nothing if concrete action is not taken to restore the independence and integrity of the police, the prosecutors and the institutions of justice. This action is not impossible provided that it is driven by public demand. It is not, after all, as if these concepts are alien to the Sri Lankan psyche.

The concerned public and civic action groups should now take this Report and practically use it for the restoration of this country's democratic institutions and in order to defeat this government's bland promises that specific incidents would be investigated and prosecuted. Given the President's oft repeated mantra that he would abide by the LLRC's recommendations without exception, he should be called upon to meticulously perform this task. The non-implementation of all its interim recommendations even at this stage is not reassuring and has invited censure by the LLRC itself. The burden is now upon us.