What veritable fairy tales are these?

| by Kishali Pinto Jayawardene

( January 23, Colombo, Sri Lanka Guardian) Are we to seriously believe the Government's explanation in Parliament this week that it cannot ascertain the fate of two political activists of the Janatha Vimukthi Peramuna (JVP) who 'disappeared' in Jaffna in early December last year, despite 'four investigative teams' being deployed for this purpose?

A predictable pattern

Even given the fairy tale stories that we have heard in recent times, this airy explanation by the Leader of the House takes not only the cake but also all the candles on it, as may well be said in colloquial parlance. So we are to assume that, in a heavily militarized peninsula where one cannot literally budge an inch without coming across a checkpoint, these 'disappearances' are shrouded in mystery as it were and that the government can only wring its hands and complain to the world?

File Photo

Some months ago, the Sri Lankan delegation to the United Nations Committee against Torture headed by Mohan Peiris, a former Sri Lankan Attorney General announced to the Committee that the government possessed credible information that web journalist Prageeth Ekneligoda had not been 'disappeared' but was safely resident in a foreign country. This tactically unwise claim has now resulted in him being called to factually back up this statement, most interestingly in ongoing legal proceedings.

But apart from individual cases, there is a discernible pattern here that was harshly commented upon by the Lessons Learnt and Reconciliation Commission (LLRC), now under heavy fire by the country's ultra-nationalist political parties, namely the JHU (Jathika Hela Urumaya) and the TNA (Tamil National Alliance). In its Report, at p 162, the LLRC focused on the case of Mr Razik Pattani, pointing out that this reflects its own 'disappointing experience' and the 'deplorable absence of conclusive law enforcement action, despite the Commission itself bringing this case to the attention of concerned authorities.'

Mr Razik, who had been assisting internally displaced persons in Puttalam, disappeared in early 2010 after an internal dispute within the organization where he was working. Even though a court order had been issued for the arrest of a suspect who was well known in the area, there was continuing delay on the part of the police in carrying out the warrant. The delay reportedly was on the basis that they were not aware of his whereabouts. Ingeniously, the burden of investigation was turned on its head and the police refrain was that if they are told where he is, he could be arrested.

It was alleged unsurprisingly that the delay in arresting the suspect was due to the connections that he had to a powerful minister in the area. The Commission comments that if this allegation was to be established, 'this would completely erode public confidence in the police' and further emphasizes its own concern that undue political interference has contributed to police lapses. Meanwhile Mr Razik's body was discovered while the Commission was writing its report and it is pointed out that 'timely action could probably have saved this life.'

LLRC's concern on disappearances

This incident was part of the LLRC's wider general concern regarding continuing disappearances and abductions. It refers to the strong denunciations by those who made representations, that 'criminal investigations, law enforcement and the police administration have been adversely affected due to political interference resulting in an erosion of confidence in the criminal justice system.' The Government was called upon in the Report's recommendations to direct the police to ensure that allegations of enforced disappearances are promptly investigated and perpetrators brought to justice.

The LLRC observed that past Commissions had made critical recommendations to this effect and that these recommendations, together with the LLRC's own recommendations should be implemented, so as to address ''understandable criticism and skepticism' regarding government appointed Commissions. This duty imposed quite rightly by the LLRC on the government cannot be met by bland statements that nothing can be ascertained despite all the best efforts of the law enforcement authorities, as the Leader of the House would quite unconvincingly have us believe. Domestic law as well as international law unequivocally stipulates that a bland denial by government authorities will not suffice to meet the burden of an enforced disappearance. Certainly that general burden is very much more accentuated in a heavily policed province such as Jaffna.

Legal principles that cannot be wished away

In one pertinent Communication of Views against the Sri Lankan State in terms of the Optional Protocol Procedure to the International Covenant on Civil and Political Rights (Sarma v Sri Lanka, Case No 950/2000, Views adopted on 31, July 2003, approving of the Velasquez Rodriguez Case (1989), Inter-American Court of Human Rights, Judgment of 29 July 1998, (Ser. C) No. 4 (1988), the United Nations Human Rights Committee reiterated its long accepted principle that the State is under a duty to effectively and promptly investigate an enforced disappearance. In issue here was a complaint filed by a father from Trincomalee, whose son had 'disappeared' in 1990. The Sri Lankan government was severely castigated by the Committee for striking omissions in its purported 'investigation,' for delay and for not providing information on relevant orders.

These legal principles cannot be wished away as much as this government may like them to. They will return, time and time again, to haunt this administration as they have haunted previous administrations, until they are acknowledged in practical terms. This has been the painful lesson that history has taught us. And this lesson will, in time, be taught to the current crop of politicians without a doubt.