That Great Betrayal and Institutional Accountability

by Kishali Pinto Jqyawardene, ‘The Sunday Times,’ Colombo, September 4, 2016

Visiting United Nations Secretary General Ban Ki Moon’s assertion that ‘much needs to be done in order to redress wrongs of the past and restore accountability of key organizations, particularly the judiciary and the security services’ raises an interesting question.

Myopic framing of core questions
Post last year’s ‘rainbow revolution’, where is the focus on substantive institutional reforms? Let me delight in being as heretical as always and pointing out that, on the contrary, there appears to be a ‘settling’ for a straight-jacketed transitional justice package, each in separate limited components. This is quite distinct from an uncompromising insistence on state accountability for systemic wrongs. Put harshly but nonetheless justifiably, this resort to ‘settling’ is nothing but a great betrayal of long and bitterly fought struggles on fundamental failures of justice.

Lest we mistake the matter, these failures predate the grievous Medamulana affliction upon this land. Rather, every political party along with every political leader, living or dead, has to bear responsibility for the same.

But to be fair, the Government is responsible for this myopic framing of core questions only up to a certain extent. The issue of systemic accountability is a ‘hard question’ that any political regime will prefer to leave undisturbed if allowed to by citizens. This is precisely what has happened in Sri Lanka’s frantic rush towards the tempting glamour of ‘justice in transition.’

Unacceptable compromises on fundamental issues
Let us take the judiciary and the security sector (mentioned by the UN Secretary General) as good examples thereof.  So is the need for legal institutional reform adequately met by the Bar Association of Sri Lanka indulging in a seminar series on the Rule of Law encompassing anti-corruption to victim protection?  Or are we to believe that hasty constitutional reform following a bow and tie ‘packaged’ process of ‘public consultations’ will suffice?

The irony is even greater given that state law officers who enabled the cover up of abuses in the Rajapaksa years facilitate some of these farcical exercises.  In India for example, if a state law officer complicit in enforced disappearances in Kashmir had been tasked to lead witness protection programmes or security sector reform, a storm of (public) protests would have ensued.

That is the singular strength of civil movements elsewhere in the region.  But in this strangely incestuous society, the ‘yahapalanaya’ minded see no problem in joining hands with compromised individuals to unblushingly proclaim their adherence to good governance.  This is a parody of the most satirical kind.  So let alone Northern victims protesting, can the South profess anything but profound disinterest in these games that are being played?

Who makes the decisions for the victims?
The problem lies with institutional culture and political will, not the Constitution, whether First Republican, Second Republican or (conceivably) the Third Republican, which one devoutly hopes will not be as inherently self-contradictory as the 19th Amendment to the Constitution.  The issue is not really the law itself, superior or subordinate as the case may be.

So when the habeas corpus application of a mother whose sixteen year old daughter had disappeared when fleeing from the Wanni with her other family members during 2009 is met by stony silence of the defence establishment in the Vavuniya courts, there is a failure of justice.  A Special Court with or without international involvement, aimed at a few military or political scapegoats, leaves that failure undisturbed.

This is also not satiated by an Office of Missing Persons (OMP) which subsumes the ‘disappeared’ under the bland euphemism of the ‘missing’ or a Truth and Reconciliation Commission both of which lack an explicit link to an effective criminal justice process or an efficacious habeas corpus remedy.  In the end, who arrives at these decisions on behalf of the victims and then claim the right to ask the victims to ‘believe’ in those choices?  Making these linkages and insisting on reform of these processes would not have been met with howls of protest from the South despite Rajapaksa histrionics.

Dismissing crassly simplistic arguments
In any event, no civil or criminal liability attaches to the findings of the OMP.  However, if an offence has been committed, it ‘may’ be reported to a law enforcement authority.  Even here, the duty is discretionary.  And as information received ‘in confidence’ by the OMP is not subject to the reach of the Right to Information (RTI) Act, No 12 of 2016, that particular information in unreviewable.

Thus a key ground to compel the disclosure of information on the basis of which it may be judicially reviewed as to whether the OMP has exercised proper discretion in (the minimum) initiating the first step in a criminal investigation is rendered arguable.  The crassly simplistic argument that this is necessary for preserving the security of witnesses’ testimony is unacceptable.  This objective may have been achieved by a more tightly drawn clause defining these circumstances narrowly.

Citing the use of the term ‘in confidence’ in other statutes is also unhelpful as there are clear safeguards in those contexts to prevent abuse, one example being the overriding public interest disclosure clause in the RTI Act at several levels of appeal and review.  In contrast, the discretion of the OMP in shutting out such information even to the family members of the victims is dangerously open-ended.

Need for less effusion and more discretion
Overall there is the reposing of a disturbingly naïve belief in the great goodness of such bodies which runs counter to all our past experiences.  Those lacking a sense of institutional history need to be reminded of this.

And as Sri Lankans are confronted with what appears to be a ‘managed’ and rushed process to satisfy external timelines, wondrously effusive messages of support ceaselessly emanate from a plethora of foreign missions.

Perhaps it is now time for a little less effusion and a little more discretion.  And for more considered thought to be given to ‘reconciliation’ processes which, as of now, appear to be aimed discomfortingly at ‘reconciling’ only politicians bound by a common struggle for political survival.

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