The much talked and discussed current burning issues of accountability, reconciliation and justice appeared to be facing a life and death battle, the contributors being Sri Lanka’s Government thriving on an uneasy alliance, the UN Human Rights Commissioner and the chauvinistic politicians, spearheaded by Mahinda, BBS and others struggling to revive their political fortunes – including the Prof. G. L. Peiris & ex Chief Justice Sarath de Silva – who were teaching principles of justice and fundamental rights to students and lawyers.
The Issue of Accountability And Justice
The UN Human Rights Office Report on Sri Lanka in 2015 stated that the ‘commitment by the new Government to pursue accountability through domestic process is commendable, but the unfortunate reality is that criminal justice system is not ready’ and also the inadequacy of Sri Lanka’s domestic legal framework to deal with international crimes of this magnitude.
The UN Human Rights Commissioner then ‘called for a’ Hybrid Special Court integrating International Judges, Lawyers and Investigators. He categorically stated that “a purely domestic court procedure will have no chance of overcoming widespread and justifiable suspicions fuelled by decades of violations, malpractice and broken promises” He thus ruled out even a reformed domestic system which can only function parallel to the special hybrid court, and not in place of it. This is needed to set Sri Lanka on a new path to justice, building public confidence along the way.
His Excellency Prince Al-Zeid Ra’ad Al-Hussein made the above statements identifying the patterns of grave violations between 2002 – 2011 consisting of two parts and running to 261 pages. The Sri Lankan Government immediately launched a protest campaign opposing the special hybrid court and succeeded by co-sponsoring a resolution with USA recognizing “that accountability is essential to uphold the rule of law and affirming the importance of participation in a Sri Lankan judicial mechanism including the Special Counsel’s Office of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators”
The present position of Sri Lanka appears to be a betrayal of its own resolution. The recent statements of the Prime Minister Ranil Wickremasingha, President Sirisena, Justice Minister and even the Mahanayaks [Buddhist Clergy] are indicative of the stand of Government to rule out any foreign judicial element in the participation of the internal mechanism,” but may decide to allow foreign observers. Above all, the statements of the President and the Prime Minister, along with the appointment of Field Marshal Sarath Fonsekera, The Commander who led and conducted and concluded the war, now becoming a Member of Parliament and Minister, is a deadly blow to the principle of accountability while confirming the continuance of the decadent past practice of impunity. This step is just foretelling what is in store and any hope of convicting any Army personnel for crimes committed during and after the war has become farcical.
Sri Lanka is set to wriggle out of this resolution by referring it to the Supreme Court for their approval to bring in foreign Judicial Officers. This is inevitably doomed to failure as the Sri Lankan Judiciary is reputedly politicized, as confirmed by the UH High commissioner for Human rights which is ingrained in the Sri Lanka’s judicial system.
The UN Human Rights Commissioner’s recent visit to Sri Lanka is timely giving him the opportunity to obtain first hand information and inter act with all segments of affected people, party leaders, Prime Minister, President, Citizens Committees, Civil Rights Groups, Northern Provincial Council Members, religious dignitaries. This was an exercise which he availed to feel the pulse of all those involved and affected by human rights. However, the recent statement of His Excellency Prince Al-Zeid Ra’ad Al-Hussein is disappointing to some extent on the question of participation of foreign judges. He said :” victims of Sri Lanka’s armed conflict must feel that justice is done, no matter the form of accountability mechanism enacted”. It appears that H. E Zeid has succumbed to the pressure of the Sri Lankan government and even of Mahanayakas [Buddhist Clergy] whose political advices carried some weight. He appears to have abandoned the involvement of foreign legal personnel and endorsed the pure Sri Lankan mechanism which he earlier dismissed as untrustworthy. Thus the concept of accountability will remain in theory and the principle of justice will also go along with it making a mockery of these two cardinal democratic principles for a government of good governance. Lack of political will, electoral fortunes, menacing Mahinda family, back lash from security forces, chauvinistic politicians and opinions Mahasanga [Buddhist High Command] play the dominant and star roles in the politics of Sri Lanka, not to mention the penchant of breaking promises given to any country, organization, Leader or Party.
With accountability and justice hanging in the balance, the process of reconciliation is also doomed to failure destroying the hopes of an enduring peace and harmony. For reconciliation to succeed accountability and justice must pre-succeed. Accountability must involve the wounded victims who cannot be allowed to live with lingering traumas, distraught feelings or minds yearning for justice. The longer the perpetrators live free from judicial process with impunity the longing for vengeance will also grow sowing the seeds of violence.
Once an impartial accountability mechanism is set in motion to carry out its functions impartially to the satisfaction of victims who should be able to feel that justice has been done, the path to reconciliation will become smoother and easier. Winning the hearts and minds of victims must be the focus aiming to build trust and confidence to secure a permanent and durable solution.
However, the current ground political situation in Sri Lanka does not bode well to achieve neither a credible and successful accountability nor a satisfying justice nor a fruitful reconciliation. It is disappointing to note that the Sri Lankan government is yet to initiate any steps to implement the various encouraged proposals set out in the resolution, namely Introducing effective security sector reforms, to reform domestic law to implement its own commitments including LLRC recommendations, to investigate all violent attacks against all journalists, human rights activists, Religious places [Hindu temples, churches and mosques], allowing participation of Commonwealth and other foreign judges etc. Five months have lapsed since the passing of the resolution on October 1st 2015 and the Government of Sri Lanka being engaged in adopting a new constitution, the said proposals in the resolution are certain to lie unattended and uncared or ignored. It won’t be a surprise that some of them will be inevitably gathering dust. The accepted internal mechanism will certainly function without any foreign Judges or Lawyers participation to ensure an outcome granting of immunity and amnesty to the Army as already promised by the Sri Lankan government.
As for the Tamils the 13th Amendment will remain as the solution with possibly some improvements, in the powers for the Northern Provincial Council. With India and USA supporting this position, Sri Lanka will adopt a unitary constitution, brushing aside any “Federal” “Union” “Confederation” ideas while maintaining the status quo as it exists at present, this being the Government’s confirmed stand.
The proposals of OHRC will remain half or quarter fulfilled for UN to review its stand on Sri Lanka by March 2017, by which time Sri Lanka would have succeeded in its diplomatic campaign convincing the West, UN and India that all is well in Sri Lanka with a new constitution.
The Tamils and Tamil National Alliance will experience another phase of broken promises and let downs. The polarization and political divide will survive possibly for another circle of unrest and violence sooner or later with the roots and seeds of the national diseases of Sri Lanka being left untouched to grow malignantly for the sake of political expediency and power. The ‘Good Governance’ will become irrelevant and falsifying leaving the quest of Tamils for accountability, justice and reconciliation. The Buddhisisation, Sinhalaziation and militarization will continue subtly hand in hand to reach end goal of SINHALA BUDDHIST STATE [The dream of the Sinhala Buddhist Clergy and extremist Sinhala Buddhists like BBS]
Various promises of the President and the Prime Minister will continue to remain unfulfilled and will probably remain as meant to promises, like the release of Tamil Prisoners, prompt return of lands, a Special court to try the accused in Vidya’s rape case within six months. Promises to haul up the bribery and corruption tainted politicians will be gathering momentum for political expediency and as a double edged sword to put an end to the political rise and ambitions of Rajapakse’s while ensuring their image in the list of ‘War Heroes’ to placate the Sinhalese no matter the war crimes, crimes against humanity or accountability.
The much battered promise of an acceptable and just political settlement to the Tamils will remain as elusive as ever and it is better late than never for the Tamils to mount agitations demanding self-determination and/or referendum as prescribed in the UN covenant, article “1” The reasons justifying are :-
[i] Tamils constitute the peoples and qualify as a nation
[ii] Tamils have been victims of racial and language discrimination state sponsored pogroms
against the Tamils in 1956. 1958. 1977, 1979, 1983, 2004 – 2009 and massacres by security
forces with nil accountability for the perpetrators and nil justice to the Tamils.
[iii] Tamils have been cheated politically with broken promises, pacts, agreements etc since 1958
[iv] Tamil race facing eventual extinction through assimilation through Buddhisization and Sinhalization.
The time has come for the world Tamils to call for self-determination and put an end to the subtle and deceptive diplomacy of India, UN, USA and other countries who exploit the problems of the Tamils for their political, economic, geographical or strategic interests like the curry leaves – used and discarded later – after cooking. BETTER LATE THAN NEVER