Sri Lanka: The Truth At Nandikadal and Wider Justice Process

An Article from the Asian Human Rights Commission
Kishali Pinto-Jayawardena

November 7, 2011

Central to any discussion on accountability in Sri Lanka is recognition of the fact that what happened in Nandikadal in May 2009 during the last stages of the fighting between the Liberation Tigers of Tamil Eelam and government troops needs to be part of a wider and more inclusive process of justice in Sri Lanka based on the Rule of Law.

This questioning process must be seen as equal in effect to all Sri Lankans and must recognize the dual responsibility of both the main protagonists in the vast numbers of lives that were lost.

Someday, there must inevitably be a reckoning for this, as much as there was at least a partial reckoning in terms of a change of government when thousands of mainly Sinhalese youth died or were ‘disappeared' under a different political administration in the nineteen eighties and early nineteen nineties.

Judiciary, prosecutors and police remain pressure points

As importantly, this accountability process cannot be limited to truth telling and reconciliation but it must be definitively linked to the restoration of integrity in regard to 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?

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.

Counterproductive impact of international publicity drives

Yet, there appears to be an extreme disconnect between varying public perceptions of what accountability means to Sri Lankans in the post war stage. To Arunachalam Jegatheeswaran, (an LTTE 'sympathizer' as introduced on Lateline, Australian Broadcasting Corporation, 25th October 2011 or a known LTTE operative according to government statements) who filed a suit in Australian courts against Sri Lanka's President Mahinda Rajapaksa, accountability appears to be limited purely to holding the Government responsible for the deaths that took place during the last stages of the conflict. Post 2009, the LTTE appears to be whitewashed by these individuals of its murderous complicity in killing its own civilians.

If the intention of the LTTE led 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. The Australian Attorney General's predictable dismissal of Jegatheeswaran's suit led to jubilant outpourings on the part of some. Most comically, representatives of one Sinhala extremist organization in Colombo handed over a bouquet of flowers to the Australian High Commission in thanks while the Ministry of External Affairs issued a statement, ‘welcoming' and ‘appreciating' the Australian Government's stand. In the Sinhala media, it was yet one more mark chalked up for a ‘smilingly' victorious President, strengthening his apparent aura of invincibility while the Tamil media expressed concern regarding Sri Lanka's international isolation.

What CHOGM 2011 made very clear was that international support, in regard to Sri Lanka's complex problems of accountability, must be carefully planned and deliberately executed if it is not to be spectacularly counterproductive. When such support is offered sensitively, it is undoubtedly useful. On the other hand, grandstanding in foreign courts by LTTE sympathizers or operatives as the case may be or engaging in publicity drives for propaganda effect by organizations and individuals, achieves precisely the opposite effect. These points need to be reiterated not merely for effect but for their central value in the accountability discourse in Sri Lanka today.

Diverting attention away from the core issues

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 Rajapakse 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.

There is no doubt that while all previous administrations nervously tiptoed around questions of accountability and only displayed one or two prosecutions as best practices, this Government delights in showing its total contempt towards even minimum adherence. Drug dealers turned politicians are protected by their political patrons, unexplained murders, assaults and rapes go by the board and a university student leader from the North this week joins the list of those brutally assaulted by goons for which there will surely be no proper investigation let alone prosecution. Let us also not forget the family members of those disappeared in 2009 who continue to plead that the lists of those being kept detained in barred government camps be published. Again, what indeed is the point of the upcoming report of the Lessons Learnt Commission when its interim recommendations have not yet been implemented?

Moreover, the capture of state assets by a ruling family exceeds even the excesses of the past, valuable state land is up for grabs by all and sundry and now, bills are not only kept secret but they are apparently not being drafted by the Legal Draftsman's Department. The fact that there are Sri Lankans who are quite happy with this state of affairs speaks to their own credulity if not culpability rather than anything else.

From the barely judicial to the wholly illegal

It is important however to remind ourselves that this blanket denial of accountability did not come about overnight. If Sri Lanka's judiciary had not been subjected to severe internal undermining and demoralizing of its independence during the term of the Sarath Silva Court (1999-2009), there would have been an unwavering moral legal core that would have remained basically intact despite all the encroachment even by an apparently invincible post war executive.

It is plain therefore that the psychological breaking down of a public demand for justice and for an independent judiciary was quite gradual in its making. And it is quite ironic that Sarath Silva should complain now that the Parliamentary Select Committee appointed to look into his conduct while as Chief Justice is not legal. Should this retired Chief Justice be so surprised at the Government resorting to such action when his Court (1999-2009) was unpleasantly distinguished by having the most number of allegations of judicial impropriety leveled against it in the entire history of Sri Lanka's Supreme Court? From the barely judicial, (if not the most entirely un-judicial), to the wholly illegal is but a small step after all.

This was not, of course, always the case. In early 1998, this columnist was part of a legal team which took the case of an engineer of Tamil ethnicity who had been stopped at a prominent check point in Colombo and arrested primarily due to the fact that he had stuttered while answering suspicious army officers, to court. His professional credentials and absence of actual grounds for suspicion did not serve as safeguards. In response, the Court acidly castigated the officers responsible for the arrest and detention, (Gnanamuttu v Military Officer, Ananda and others,1999 2 SriLR 213). Cases of this nature were common during that period and the quality of justice was entirely unaffected by the ethnicity of the petitioner. Instances of the torture of Sinhalese petitioners due to the rampant indiscipline of the police and the torture or disappearance of persons of Tamil ethnicity due to alleged links to terrorist activities were met with equally stern responses. These were excellent legal standards laid down in regard to state accountability and they were consistently followed by judges. During the past decade however, all that changed and the credibility of Sri Lanka's judiciary in addressing questions of accountability suffered both in terms of reality and perception.

Seeking justice in established international fora

In principle therefore, there is no doubt that going beyond Sri Lanka's shores to demand accountability has come about as a result of the perceived and real failures of local justice. 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.

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 Protocol 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 by those who lack basic even-handedness in looking at the Sri Lankan situation and, most importantly, the determining of these applications are not dictated to 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 loose 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?

The author is an attorney-at-law and senior media columnist based in Colombo. She is the (Consultant) Deputy Director, Law & Society Trust and a member of the Board of Directors of the Asian Human Rights Commission, Hong Kong. The following is excerpted from her regular opinion column 'Focus on Rights' published in the Sunday Times of October 30th and November 6th 2011.

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