| by Kishali Pinto Jayawardene
( March 04, 2012, Colombo, Sri Lanka Guardian) There is a perception that people in Sri Lanka are too frightened to speak out against the Rajapaksa administration. This may apply to the middle class professionals conversant purely in English and others who can only be referred to as pseudo-intellectuals in the professions and academia. These pseudo intellectuals, whether in law, economics, education or other disciplines have always been marred by a slavishly uncritical admiration for political dynasties, be it the Bandaranaikes, the Senanayakes or the Rajapaksas. They are restrained therefore, not by fear of a particular political administration but rather by their own self-interest, pure and simple.
Examples of extraordinary courage
In contrast, far more courage is exhibited by commoners oftentimes insultingly referred to as the 'hoi polloi.' Currently, these voices range from Northern mothers and fathers in humble homes who lament the loss of their children and protest against excessive militarization of their communities to the Southern villagers evicted out of their homes and villages without justice.
These protestors include free trade zone workers mourning the brutal killing of one of their own as well as fishermen struggling in the net of severe economic hardship while political extravaganzas abound. Here are the Sri Lankans exhibiting extraordinary courage while pseudo-intellectuals cower in silence or bend over backwards trying to appease the powers that be.
We have seen such courage in full measure even against a juggernaut administration, such as that of the present. These are people not afraid to run the risk of being identified in public protests. In Point Pedro, several months ago, scores of grieving parents clamoured before a local authority, seeking the fate of their children despite the presence of intelligence officers in plain clothes. These are the same mothers (predominantly) and fathers who braved obvious risks to go before the Lessons Learnt and Reconciliation Commission (LLRC) to recite their woes.
More recently, in the very heart of President's Mahinda Rajapaksa's power base in the deep South and with complete disregard as to who may be 'listening in', villagers crowded a public hall asking why they had been thrown out of their homes in pursuance of a so-called economic development zone without the right to fair compensation computed on a transparent scale? These are the critical pressure points at which justice ought to be secured.
Initiating criminal prosecutions
Yet rather than addressing these fundamental concerns, the Government only issues empty statements. the most recent of these is the assurance, made with due gravitas, that the Attorney General is examining all material in relation to human rights violations coming out of the LLRC with a view to initiating prosecutions. Unsurprisingly, we then hear the very relevant caveat that the context in which a criminal prosecution may be initiated differs from a Commission of Inquiry proceeding. We are also solemnly informed that changes are being contemplated to the 'legal framework' in relation to such offences.
One is not sure whether to laugh or to snarl at such pronouncements. This is a hollow rendering of an unbearably weary refrain. Let us consider the context. What is new about this caution that the findings of the LLRC would translate into quite a different reality where criminal prosecutions are concerned? This gap between a Commission's recommendations and actual prosecutions has always been the case, as any informed observer would already know. This has affected victims of majority as well as minority ethnicity.
A very good illustration is the contrast between the findings of the 1994 Disappearances Commission (Western, Southern and Sabaragamuwa Provinces) and the prosecutions that took place into the enforced disappearances and torture of more than fifty Sinhalese schoolchildren in Embilipitiya between 1989-1990. The Disappearances Commission, in a Special Report on the matter (1997), investigated around sixty four disappearances of children. However, prosecutions were (successfully) initiated only in respect of a fraction of these cases due to the difficulty of fitting in those cases into the existing penal offences of abduction and wrongful confinement.
As disturbingly, the senior army officer in charge of the camp in which the detained children had been kept and who was roundly reprimanded by the Disappearances Commission, was acquitted in the relevant High Court prosecution as his culpability for the offences indicted was not established beyond all reasonable doubt.
The proceedings and findings of the Disappearances Commission meanwhile was conspicuously absent from the High Court proceedings. In other words, the Commission procedure and the Court procedure proceeded totally separated from each other in a manner that would have appeared to be quite bizarre to anyone possessing ordinary commonsense. But that was how the law had it.
The fact that an amendment to the 1948 Commissions of Inquiry Act in 2008 now gives power to the Attorney General to 'institute criminal proceedings in a court of law in respect of any offence based on material collected in the course of an investigation or inquiry' by a Commission of Inquiry, does not really change the situation.
Role played by the judiciary
Meanwhile, even if we forget about outright judicial bias, general conservatism in responding to allegations of rights violations on the part of Sri Lanka's judges is a serious factor. In the Bindunuwewa case (Commission of Inquiry report, 2001) for example, even though the Commission was bold enough to hold two senior police officers responsible for culpable inaction in not preventing the massacre of 28 Tamil youths by Sinhalese villagers at a rehabilitation centre in Sri Lanka's hill country and even though a Trial-at-Bar of the High Court convicted these police officers, these convictions were reversed by the Supreme Court (2005).
These illustrative examples have contributed to the general perception that Commissions of Inquiry are useless exercises since they do not result in relief to victims. The LLRC had this obvious handicap at the start coupled with the fact that other recommendations pertaining to redress by previous Commissions had been summarily disregarded.
This is acknowledged by the LLRC itself as surely it must. All prosecutorial records following from the findings of all Commissions of Inquiry from more than five decades back have been astoundingly negligible. Documented research into the reasons reveals a variety of factors including deliberate obstruction by senior officers of the police and army. This rationale would obviously be far more obstructive when prosecutions concerning actions of a current regime are in question. And if we take the general ethos of the Rajapaksa administration, one can safely presume that such obstruction will not only be inevitable but also quite extraordinary.
Listening to voices of outrage
As a necessary first step to correct this horrendous record and exactly as the LLRC has recommended, Sri Lanka's Parliament needs to enact a specific offence of enforced disappearances into the country's penal law. That will minimize some of the serious evidentiary restrictions in respect of the Attorney General's decision to indict. These are the concrete steps that are called for, not filibustering rhetoric in Geneva before the United Nations Human Rights Council and the massaging of egos by ministers and diplomats.
Yet theoretical legal principles are ultimately of little use when there is no political will to secure accountability. Our last chance was the LLRC report, however limited this report may have seemed to its critics. But the stonewalling of the implementation of its recommendations by this administration in recent months sets the seal on Sri Lanka's culpability towards its own citizens.
The call therefore still remains for adherence to the Rule of Law. Victims in Sri Lanka are not confined to what was formerly the war theatre. Instead and increasingly, they are evidenced across the length and breadth of this country owing to the braggart aggrandizement of this administration, militarily and for profit in blatant disregard of the Rule of Law.
The exemplary courage of people in braving all risks and coming out in the open to show their outrage is what will ultimately change this country, North to South, broadly speaking. Certainly, politicians, judges and lawyers will need to listen to these prophetic voices for their own good, sooner rather than later.
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