By: Thambu Kanagasabai, LLM [London], Former Lecturer in Law, August 8, 2016
[ 1 ] COMMUNALISM AND MAJORITY HEGEMONY
One can hardly deny the fact of various political ills plaguing and denting Sri Lanka’s image since 1956. A nation labelled as peaceful and prosperous until 1956 shed this image from then on to become as a nation wracked with communalism, hegemony and ethnic strife promoted by power seeking politicians to score election victories. The Sinhala Only Act 1956 – it is not just a Sinhala Act but ‘Only Sinhala Act’ which effectively sealed the marginalisation and exclusion of ‘Tamil Language and by extension Tamils. This piece of politically motivated and necessitated legislation heralded the polarisation and unbridled growth of Sinhalese nationalism allowing for the rise of Tamil nationalism and ethnic rift with extremists taking upper hand and exploiting the opportunities whipping up hatred and hostility between the two communities which have been hitherto living happily and socially mixing with no hidden feelings of fear or suspicion.
1956 was an important year which also thrust the Buddhist monks into politics and opened up a third front in the running of governments. The prescribed role of monks as advisors to rulers in times of need, preachers of Buddhism has now extended to full blown political activities including contesting elections to win seats while indulging in unsavoury political propaganda and even in violence like other die hard politicians. As a fall out, this act gave way to discrimination of Tamils in employment, appointments to state institutions, including recruitment in the security services. Even in education, this discrimination is continuing and universities functioning in the North and East which foster and preserve Tamil culture and traditions are now facing a policy of planned increasing of Sinhalese students in the universities in the North and East [Tamils traditional and historical homeland] creating tension and clashes as to who should have the right of decision in university functions and related matters.
These ills of marginalization, exclusion and discrimination have taken a heavy toll on the Tamils in all sectors of appointments and employments, like judiciary, security sector, public service, state institutions and banks etc. There is also no sign of any redemption or removal of this injustice and it appears almost irretrievable and entrenched.
Another ill is the detestable practices of favouritism, nepotism, and politicisation which have been continuing with common acceptance and even endorsing it as part and parcel of political lives in Sri Lanka. These malpractices always accompany persons holding political power particularly soon after they capture power. Their rule commences with appointments of family members, personal friends, loyalists and political stooges to top positions in state Institutions, Judiciary. Boards, Banks, Ministries and Missions abroad including Cabinet positions. Due to this unhealthy practice, efficiency, eligibility, merits and even seniority are discarded while opening the gates for abuse of power and position, bribery and corruption and even disregarding rules of procedure. A change in Government can only bring an end to this sad state of affairs while allowing a new front for above malpractices to resume. As an example, family members of former President Mahinda are facing investigations for bribery and corruption with an uncertain outcome.
[ 2 ] BREACH OF PROMISES, AGREEMENTS, PACTS AND UNDERSTANDINGS
This is a much ingrained habitual trait consistently and uninhibitedly practised by Sri Lanka’s political leaders since 1957 and this unholy attitude is still continuing with contempt and disregard of healthy democratic political norms. The following are some of the major dishonoured acts of various leaders since 1957 which centered on Tamils’ problem.
[a] Bandaranayaka – Chelvanayagam Pact in 1957
[b] Dudly Senanayaka – Chelvanayagam Agreement in 1965
[c] Chandrika Kumaratunga’s Peace Proposals in 1995
[d] Ranil Wickremasingha – LTTE Ceasefire Agreement in 2002
[e] Ranil Wickremasingha – LTTE Oslo Accord 2004
[f] Mahinda Rajapaksha’s 13+ plus [Full implementation of the Indo/Sri Lanka Pact of 1997+
Upper House – in 2009]
There was also the promise of former President Premadasa in 1990 – who promised to give “everything to Tamils except Tamil Eelam.”
The recent promises made by Ranil Wickremasinghe and Mithiripa Sirisena in relation to release of Tamil political prisoners, release of seized civilian lands, resettlement of the displaced, reduction of army and disengagement of military in civilian matters including [businesses, farming in Tamils legal lands, running hotels and tourism activities, running primary school for Tamil Children etc.]
Promise to repeal the draconian Prevention of Terrorism Act still remains as a promise and it is anybody’s guess as to when these promises will be fulfilled in future.
The latest is the Government breaking its own undertaking to the United Nations by refusing any international participation in the internal mechanism to investigate crimes committed during the war. This breach casts doubt on the sincerity of the government to honour the other undertakings in the UNHRC Resolution 30/1.
 ABSENCE OF ACCOUNTABILITY, JUSTICE AND IMPUNITY
Absence of accountability, justice and impunity is the disease striking at the roots of the principles of rule of law and independence of judiciary. Accountability for criminal acts of omission and commission committed by anyone is the cornerstone of justice to punish the criminals and provide the judicial relief and satisfaction to those affected by the crimes. If one is not held accountable for his wrongs, the consequences are inevitably loss of faith in the judicial process and states law enforcement machinery resulting in encouragement for the criminals, while nursing feelings of anger, desperation and thirst for revenge against the perpetrators.
Sad to state, in Sri Lanka, accountability is rarely dispensed with when offenders are security personnel, state top officials and political stooges particularly when the victims belong to the minority communities. The history of Sri Lanka confirms this malady as only a few have been convicted for hoards of crimes committed against the Tamil civilians since 1958 and during the various pogroms [in 1956, 1958. 1977, 1983] and until the end of war in 2009.
The various commissions appointed to identify the offenders and serve justice to the victims wound up their missions without any follow up or action but only allowing for cover-ups. The failure for accountability along with justice has also given the way for the growth and promotion of the culture of impunity which is also now confirmed by the United Nations.
The United Nations Internal Panel’s Report published in September 2015 confirms this continuing practice in Sri Lanka. “Years of denials and cover ups, failure to carry out prompt investigations, stalled investigations, failure of successive domestic inquiries, systematic weakness in addressing crimes especially when military or security forces are involved.” As Professor Steven Ratner, a member of UNSC Panel stated “ there is no environment to address accountability and dispense justice for the crimes committed domestically in Sri Lanka. Absence of political will and institutional disability are the hall marks of Sri Lankan justice dispensation system”
The recent acquittal of six soldiers accused of rape and massacre of twenty six  Tamil civilians including 13 children in 2006 at Kumarapuram, after having cleared of the 101 indictments and despite the evidences of 108 eye witnesses speaks for itself the loss of faith for Tamil victims in the Sri Lankan judicial process.
The Muslims who are the victims of the recent violence and killings in the Western province are yet to see the faces of those involved in the courts charged for those crimes. Accountability has thus become a rare commodity with the governments in power which also openly promise and guarantee protection for security personnel with pardon and or impunity. The only safeguard to uphold justice through accountability is an independent impartial judiciary. However the independence and impartiality of judiciary in Sri Lanka has been compromised by the Executive Presidents who have been appointing the judges particularly the position of Chief Justice based on political or personal leanings. The Sri Lankan judicial system has thus lost its credibility particularly after the introduction of Executive President System in 1978. This breach of independence has given way to the culture of impunity keeping accountability at bay.
United Nations Panel of Experts confirmed this position by stating that “government has to break the mold of impunity once and for all. So many years of unbridled human rights violations and institutional impunity must be fundamentally addressed.” Despite this criticism, the present government does not appear to be moving in the direction of preserving an independent and impartial judiciary. The recent statement of Prime Minister Rt. Hon. Ranil Wickremasinghe in the Parliament on July 07 2016 speaks for itself the volatile position of judiciary due to the veiled threats thrown from the ruling government. Rt. Hon. Ranil Wickremasinghe stated “Judicial power of the people is not exercised by the Supreme Court but by Parliament through courts and directly by Parliament.” This view clearly undermines and strikes at the role of judiciary to a position of subjugation to follow and act in accordance with the wishes of Parliament. This statement is asserting a subservient role for the judiciary which is the last resort of public to seek justice for omissions and commissions of government while upholding the rule of law and constitution striking down legislation passed in violation of the constitution
This being the impending affairs, to expect accountability and justice for Tamil victims of massacres, rapes, extra-judicial killings, arbitrary arrests etc. is like chasing a mirage as water in the desert. The international community and United Nations are now fully aware of the human rights violations including war crimes and crimes against humanity during the war.
Thus a failure to deliver justice to the Tamils by the UN and the international community without delay will leave the wounds of Tamils remaining unhealed but only allow festering to seek their own remedies.
[ 4 ] STATE SUPPORTED, ENCOURAGED, ASSISTED AND ORGANIZED KILLINGS AND VIOLENCE
State supported, encouraged, assisted and organized killings is another deadly ill which has been the scourge and curse of Governments in power since 1956 and a bane of a democratic government.
The common thread that is running through the violence and killings which commenced in 1958 is the state’s failure to enforce law and order thus directly or indirectly involving in the violence as complicit parties and/or accomplices.
[ i ] 1958 violence against the Tamils. It was not quelled at the earliest opportunity.
[ii ] 1961 non-violent campaign of Tamils brutally suppressed by the state employing the military.
[iii] 1977 communal violence was allowed to continue for some days thus encouraging the perpetrators
[iv] 1983 violence and killings were pre-planned well co-ordinated and organized with active support of
state and its security forces President Jayawardena allowed the killing spree and kept mum and
later justified it by saying “I am not worried about the opinion of the Jaffna people… now we cannot think of them, not about their lives or their opinion… the more you put pressure in the north, the happier the Sinhala people will be here… Really if I starve the Tamils out, the Sinhala people will be happy.”
– President J.R.Jayawardene, Daily Telegraph, July 1983
[v] 1979-1981 – JVP uprising by Sinhalese youths was ruthlessly crushed with no concern for the
surrendered and captured youths. At that time several dead bodies were floating in the Kelani
River, suspected to be the members of the JVP.
[vi] 2006-2009 – brutal war with LTTE resulted in the disappearances of about 65,000 and killings of
more than 70,000 civilians. The Government conducted the war without witness kicking out UN
Officials ,NGOs, Media & Journalists who are overall stationed in the war zone. These acts of government were intended to hide the heavy death toll and the usage of banned cluster bombs and chemical weapons. This clearly shows the pre planned genocidal agenda to wipe out the Tamil population without any concern for the death of thousands of civilians. The Government later glorified its victory with state celebrations.
[vii] Between 2002 to2011 more than 19 journalists who dared to criticise the ruling governments
mainly through media were killed mostly after abducted in white vans by the government’s
henchmen. So far no justice has been done to the families of victims, not even one convicted.
White van abductions are still continuing but on a lesser scale under the present government of
Besides 156 massacres of Tamil civilians by security forces were reported between 1983 – 2010
The state’s failures to hold the scales equally for all citizens has been a feature of Sri Lankan
governments. Allowing the perpetrators from the holds of judicial process and accountability
is just another continuing malady striking at the roots of rule of law and undermining the role of
the judiciary in Sri Lanka
[viii]The Supreme Court’s recent ruling on the VAT bill declaring it as null and void due to a procedural
flaw in the Parliament gives a tiny hope on the judiciary asserting its authority, but PM Rt. Hon. Ranil’s outburst against the Supreme Court’s ruling in this matter smacks of unhealthy contempt while degrading the role of judiciary and trying to maintain ‘Parliaments’ supremacy even to pass any laws in violation of constitutional provisions flouting procedural rules, leaving the Supreme Court similar to the role of back benchers of a ruling government who sit, watch and assent the moves of government.
 RIGHTING THE WRONGS
Sri Lanka is duty bound to honour its own commitments and undertakings made in the UNHRC Resolution 30/1 on October 01, 2015. However still no visible moves have been made by the government to implement the proposals. Accountability and justice should stay as the top priority for action by the government. Reconciliation will succeed only when accountability is upheld. Accountability is the medicine to heal the wounds of Tamil victims and reconciliation is like a plaster, which, if used alone will only a cover up of the wounds without medicine. This will only allow the wounds to fester and grow sowing the seeds for future conflicts.
It is surprising to note that the present government of good governance is also following the footsteps of Former President Mahindra Rajapaksha’s government and is trying to make the judiciary inter-dependant and subservient to the parliament which is only supreme to make or unmake legislations complying with constitutional provisions The independence and judiciary’s role as the guardian of constitution, rule of law and dispensers of justice without fear or favour cannot be allowed to be eroded or interfered with by any government either by direct or indirect veiled threats.
Another depraving approach by some extremists in the south is to label anyone who speaks out exposing the human rights violations, state crimes and government’s discriminatory policies and actions as a ‘terrorist’ or a ‘tiger’ as happened to Hon. Eric Solheim who was branded as a ‘white tiger’ and former UN High Commissioner for Human rights Madam Navaneetham Pillai as a ‘confirmed ‘tiger’ now the NPC Chief Minister Justice C. Wigneswaran has joined the group as a ‘terrorist’. His sin is only speaking out loudly for justice and equal rights to Tamils.
Those who sowed the seeds of communalism and racism right from 1956 and until now hail themselves or are hailed as SAVIORS OF NATION while those who speak out for the victims and agitate for the lost rights of Tamils and accountability are branded as racists and communalists.
This is not a surprising allegation as Nelson Mandela who was branded as a ‘terrorist’ when he launched the freedom struggle even endorsing violence later became a Nobel prize winner and finally hailed and as the worlds ‘most outstanding statesman’
As long as this mindset thrives and survives, the opportunities for co-existence will also be lost and wasted. As stated earlier, if the courts choose ‘political expediency and fortunes’, justice for Tamils and not to mention a durable permanent political settlement can only be a distant dream.
The much misunderstood and maligned system of ‘Federalism’ has to be explained through media and public discussions to the Sinhalese to dispel their misgivings and imaginary fears. This task has to be taken by the government along with opposition and civilian groups provided government is also endorsing the federal system as a once and for all solution to the ethnic problem.
Another thorny issue which is preventing the winning of hearts and minds of the Tamils is the continuing overt and covert Sinhalisation , Buddhisistion and militarisation in the North and Eastern provinces – the historical and traditional homeland of the Tamils. This un announced programme is
unabatedly continuing even under the present government without any vociferous protests by Tamil leaders. Unless and until this is brought to a halt, mistrust, suspicion and insecurity of the Tamil civilians will continue to grow with potentials for future conflicts.
The United Nations and International community being fully aware of the issues particularly the sixty years ethnic problem without ignoring the Tamil problems, or relying Sri Lanka’s sugar coated promises must prevail upon Sri Lanka and ensure the implementation of the UNHRC proposals while guaranteeing a permanent political solution
The government of Sri Lanka should honour its commitments by allowing the participation of international judges in their internal judicial mechanism to restore the stained and battered image of judiciary to allow it to dispense full justice to victims leaving no room for impunity. False sentiments and distorting misconceptions as to international jurists have to be scotched in the bud for the sake of a clean image of the country.
The Government’s recent legislation to set up an Office of Mission Persons [OMP] is a welcome step raising some hopes to ensure accountability and offer justice to the families affected by the disappearances of more than 60,000 during the war. It is hoped that the promised follow-up by establishing a judicial mechanism and Truth Commission will live up to its objectives and functions with transparency leaving no room for doubt in their search for the identities of the perpetrators and prove itself as an Office of Justice for the Missing Persons.
In the face of promises of protection from culpability given to security forces including former President Mahinda and his loyalists, hopes for accountability and justice appear as elusive as ever.
This Office of Missing Persons surely satisfy the United Nations and International community for its intent and purposes, but it is hoped that it would not end up as another breach of undertaking by the Government and a letdown for the victims to continue living with grief stricken heavy hearts with denial of justice due to the absence of criminal liability provisions in the Bill.
United Nations should not hesitate to take proper punitive actions against Sri Lanka if Sri Lanka continues to adopt the time buying tactics or shelve the accountability with promises of political settlement in the proposed new constitution when already a federal system with a merger of Northern and Eastern provinces called by the Tamils has been flatly and repeatedly rejected by the Government.