When Justice Fails

Political dissent turns violent

by Ameen Izzadeen, Khaleej Times, June 26, 2007

IT IS difficult to believe that Sri Lankan authorities did not know who Justice PN Bhagwati was when they invited him to head the panel of International Independent Group of Eminent Persons (IIGEP), which is tasked with monitoring investigations by a presidential commission into grave human rights abuses and extrajudicial killings.

But at the time of extending this invitation — mind you Bhagwati was Sri Lankan President Mahinda Rajapaksa's choice, not India's nominee — the government's immediate goal was to placate the international community and silence the outcry over the killing of 17 aid workers of the French aid group Action Contre La Faim, or Action Against Hunger.

The fact that Justice Bhagwati was a member of the United Nations Human Rights Committee did not deter us from inviting him. None of the Rajapaksa advisers objected to the invitation. They did object, however, to the French nominee, Bernard Kouchner, founder of the Medicins Sans Frontiers, advocate of the doctrine of humanitarian intervention and human rights champion. But saner counsel prevailed and the opposition to Kouchner's nomination was not conveyed to the French. The news that Sri Lanka had reservations about Kouchner only surfaced after he became foreign minister in the Nicolas Sarkozy administration.

The fact that the international panel includes Justice Bhagwati, Dr Kouchner, Prof Nigel Rodley, who is a former UN rapporteur on torture, and other eminent persons, showed that the international community took the Sri Lankan government's move to investigate human rights abuses seriously.

But today questions are being asked as to how serious the government is with regard to the investigations into human rights abuses because the country's chief legal officer — the Attorney General — is involved in a word of war Justice Bhagwati.

The former Indian Chief Justice is known for his judicial activism world over. One cannot talk of judicial activism in India without mentioning the name of justices like Bhagwati and VR Krishna Iyer. When they adorned the highest bench of the Indian judiciary, judicial activism assumed a human face with the mechanism of public interest litigation being resorted to find justice and relief to the marginalised and the oppressed.

The presidential advisers knew who Justice Bhagwati was but they would not have expected him to release a damning indictment on the investigation process.

Justice Bhagwati said the process did not satisfy international norms and standards and charged that the Attorney-General's Department was partial in its conduct in cases coming before the commission. He pointed out instances where the AG's conduct compromised a conflict of interests. The 84-year-old judge expressed concern over the lack of witness protection system to make the investigative process meaningful. Pointing out that the commission was beholden to the President's Office for its finances, he called upon the government to appoint a robust international human rights monitoring mission that would have wider powers than the IIGEP.

Attorney General CR de Silva hit back saying the IIGEP insulted the members of the presidential commission and engaged in improper interference with the judicial system of Sri Lanka.

While President Rajapaksa has pledged to look into the shortcomings pointed out in the Bhagwati report, the Attorney General has locked horns with the IIGEP. The situation smacks of certain degree of skullduggery and may precipitate another crisis — with the possibility of members of the international panel quitting looming large.

There are two main issues involved in the current crisis:

The inadequacy of the Sri Lanka judicial system to effectively deal with human rights abuses. Bringing to justice the killers of 17 aid workers and others who are responsible for extrajudicial killing.

It is because of the inadequacy of the local judicial system and the international community's lack of confidence in it that Sri Lanka had to invite foreign observers. If only our judiciary had demonstrated its vibrancy and progressivism in such a way to earn worldwide reputation, the international community would not have pressurised the government. The United States and Britain may also be committing gross human rights violations but the judicial systems in these countries are adequately empowered to bring the culprits to justice.

The recent ruling by British law lords in a case where British soldiers were accused of killing Baha Mousa, an Iraqi civilian is a classic example. The law lords dismissed the British government's argument that the European Convention on Human Rights applied only in Europe and not applicable to British troops in Iraq. They said there must be a full independent inquiry whenever detainees such as Mousa suffer inhuman treatment, torture or death whilst detained in UK military establishments anywhere in the world. It is when justice fails that political dissent turns violent. Terrorism manifests itself as a political voice when avenues for justice are shut and people lose hope that their grievances could be addressed in a just manner.

The second issue involves the investigative process: Will the culprits be punished? We still do not know who killed the 17 aid workers. It could be soldiers, the Tamil Tigers or even a third force. But the manner in which the Attorney General's Department finds fault with the IIGEP and the authorities' failure to extend cooperation to Australian forensic experts create a wrong impression that the state is trying to protect the culprits. Unconfirmed reports say vital evidence collected by investigators has either gone missing or not submitted.

The burden is on Sri Lanka to prove that it is a state where justice is done.