Columns - FOCUS On Rights

A fitting end to a Shakespearean farce

By Kishali Pinto Jayawardene

The winding up of the 2006 Udalagama Commission of Inquiry this week without any further extensions being granted and with many investigations still in the air, is peculiarly appropriate to its circumstances. This abrupt closure is therefore quite unsurprising to those of us who, in fact, predicted such an end to this initiative.

At that time, I remember one senior state lawyer, (also a friend of mine), who remonstrated with me on what he/she aggravatingly termed as my 'extreme cynicism.' I was asked as to why I did not wait, at least to see how the body would perform, before condemning the initiative. But there was really no need to wait; it was evident that this initiative (polished as it was for international opinion by having an International Independent Group of Eminent Persons, or the IIGEP as 'observers') was doomed to abject failure. All those who participated in this grandiloquently Shakespearean farce must therefore accept responsibility for the wasting of tremendous amounts of money, time and energies which may have been directed towards more constructive ends such as adequately compensating the families of those whose loved ones were killed.

Patterns of de jure impunity

The only positive feature was that the clash of arms between government agencies and the IIGEP resulted in attention being focused on the country's faltering justice systems, which was precisely what many of us had been shouting ourselves hoarse about all these years. The point was beautifully simple; even if this Commission had functioned terribly well and its Commissioners had been as rigorous as they should have been in isolating the forces responsible for brutal killings, (which was not the case), very little would have been accomplished.

The issue then as is the issue now, concerns the near complete failure of Sri Lanka's investigative, prosecutorial and judicial function to act against those who repeatedly commit abuses under cover of conflict. None of these three branches can absolve themselves of responsibility in this regard. Instead, each failure is inextricably connected to the other; cumulatively they all form a pattern that surely should trouble each and every one of us as clear thinking, rational citizens.

And to be quite specific in this regard, this is not to say that perfect wars could be fought in any country in any part of the world. Yet, what should be met head on are deliberate and systemic patterns of civilian abuse for which, if one peruses relevant court records properly, only a handful of perpetrators have been responsible.

Many of these cases are allowed to lapse or are defeated through a combination of inefficient investigations, bad prosecutions and indifferent judicial attitudes. When de jure impunity (or protection through the law and the legal system) is provided for perpetrators, we are down a slippery slope that can lead this country to a forfeiting of its very soul.

Justice transcending ethnic lines

And again, this is not to say that the victims have belonged to one ethnicity alone. Indeed, I have the most profound contempt for those who would try (for whatever reason) to portray Sri Lanka's consistent failure of justice as being solely directed towards the minorities. In doing so, we conveniently forget the thousands of persons of Sinhalese ethnicity who were involuntarily disappeared during the eighties and early nineties. Just a month ago, one drained and faded lady from beyond Matara was fruitlessly pleading to ascertain as to what had happened to the habeas corpus application that she had lodged in regard to the disappearance of thirteen year old son almost twenty years back. For many of us, those years may now seem like a dream; but the heedless killings in combating a 'Sinhala terror force' destroyed entire communities. By discounting these voices, we insult the pain that they continue to suffer. The law failed them as it is currently failing others. This is a fact that we should most candidly acknowledge.
Insofar as the Udalagama Commission is concerned, its mandate states that the President can withhold the publication of any material which is in his opinion, "prejudicial to or absolutely necessary for the protection of national security, public safety or wellbeing." As vague as these terms are, they promise little even in respect of these reports being made public. Hopefully however, this should be the very last of such farcical efforts.

Public opinion for change

The plea of the Matara lady whose son had been disappeared and the fate of countless others like his was the plank on which Sri Lanka's current President, Mahinda Rajapska, built his public persona as a politician sensitive to rights at that time. Undoubtedly, this persona has spectacularly self destructed in relation to the fate that has befallen many mothers, this time of Tamil ethnicity during recent years. Yet, the fatal mistake is to think that things cannot change. It must be recalled that it were primarily Sinhalese witnesses who secured the conviction of the accused soldiers in the rape and murder of Krishanthi Kumaraswamy a schoolgirl (and others who went in search of her) at the Chemmani check point many years back. This case was swept by a tremendous tide of public opinion. Such public opinion needs to be created now, not only in terms of the plight of those at the IDP camps but also in relation to the reform of our legal systems. This needs to be our task and not the responsibility of international mechanisms.
This country must, at least now, be allowed to breathe democratically after all the terror that it has gone through for decades.

 
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