Columns - FOCUS On Rights

Do we need to go down this same road again?

By Kishali Pinto Jayawardene

When will the Government of Sri Lanka and state cum private media propagandists realize that name calling and designating dissentients as ‘traitors’ is scarcely a mature way to go about arguing one’s own case? Do these misguided ‘patriots’ think that, diplomats, UN officials or the government’s critics are affected by these most uncouth writings in the local press? On the contrary, such practices only reflect on the immaturity and the crudity of the name callers regardless of the visceral pleasure that they may afford to bucolic locals.

Lurching from one crisis to another

It would have at least been tolerable if those at the helm of diplomatic affairs or manning our foreign outposts had the skill, the capacity and the considerable ingenuity of a Lakshman Kadirgamar, for example, to meet justified or unjustified criticism with reasoned debate and equanimity. That alas, is not the case. And so, we lurch from one crisis to another with the unseemly gait of an inebriated reveller suffering from the effects of too much good cheer.

The report of the advisory panel of the United Nations Secretary General (UNSG) which was handed over to the UNSG this week is a good case in point. First, the appointment of the three member expert Panel was hysterically denounced with a nationalistic point man of the government going on a hugely farcical hunger strike. In contrast in India, a once unknown activist Anna Hazare went on a hunger strike against the corruption of his government, galvanizing thousands of middle class businessmen and housewives who vocally demonstrated their anger and frustration on village and city streets. Here, in Sri Lanka, hunger strikes perform a vastly different function; that of providing entertainment for the masses.

Coping with mass public and professional hysteria

But to return to the much controversial UN Panel, so we had the Bar Association of Sri Lanka (BASL) also joining the madness. It was only at the last minute that a BASL resolution, (couched in lamentably un-legalistic language to boot), that called for the ‘ostracising’ of anyone who ‘collaborates’ with the UN Panel, was withdrawn. Its replacement resolution was only marginally better. The BASL had apparently forgotten all about its paramount duty to urge the Government of Sri Lanka to adhere to the law and the Constitution or to ensure the primacy of the law in its investigations and prosecutions of human rights violations. The BASL of the seventies and the eighties, which repeatedly condemned the government of the day for having engaged in the enforced disappearances of thousands at that time, would not have been so remiss. What we have now however is quite a different and far inferior reality.

Predictably, after all this hysteria, the Government commenced engaging with the Panel. After a flurry of conflicting news reports, we were told that a visit to Sri Lanka was not forthcoming. Then we were told, as first disclosed by this newspaper, that key government officials had, in fact, met with the Panel in New York in secretive meetings. Ludicrously, if, in fact, the BASL had gone ahead with their initial misguided resolution, would these top officials have headed the list of those to have been ‘ostracised’?

As an ultimate culmination, we now have the report of the Panel handed over to UNSG who thereafter forwarded it to the Government prior to making the full report public. If leaked excerpts of the report published in newspapers and websites this week are to be taken at face value, the experts have called for an independent international investigation of atrocities that had allegedly been committed during the last stages of the conflict and moreover, have requested for the United Nations Human Rights Council (UNHRC) to be invited to ‘reconsider’ its May 2009 Special Session Resolution (A/HRC/8-11/L. 1/Rev. 2) regarding Sri Lanka.

Lessons to learn from the Goldstone report

At this point, it is worthwhile taking a step back to re-examine the processes of engagement with critical monitoring processes. What was evidenced this time around was eerily similar as it followed the same lines of initial confrontation, (replete with the usual name calling and so on), and thereafter secretive – and ultimately futile – engagement with the European Union on the GSP Plus privilege. Do we need to go down this same road time and time again?

We need to also look at the unfolding events in regard to the Richard Goldstone fact –finding report which was commissioned by the UNHRC, thus being a proper UNHRC report as contrasted to an advisory report of the UNSG. This inquiry was in regard to allegations of war crimes committed by both Israel and Hamas during the war in Gaza in 2008/2009 during which civilians were killed.

The Goldstone report (September 2009) concluded that civilians had been targeted by the Israeli government as a matter of policy and that some Israelis could be held individually criminally responsible for potential war crimes.

Earlier this month however, Goldstone (who is a highly respected jurist known for his activism against the apartheid regime in South Africa), writing in a newspaper column, reversed his finding of the deliberate targeting of civilians in the wake of evidence that had subsequently come to light. The Israeli government, (as much as the Sri Lankan government had done in relation to the Advisory Panel), had refused to engage with the fact finding inquiry. Presently, though the Israelis have reacted with delight at this apparent ‘retraction’ of a key finding in the report by Goldstone, reversing consequent events at the UNHRC is not expected to be easy.

Are there no saner options to follow?

There are lessons to be learnt from this for Sri Lanka. Would it not have been a saner option on the part of the Government to have fully engaged with the UN Panel and provided a comprehensive rebuttal to claims/evidence furnished to the Panel, of atrocities allegedly committed during the last stages of the war? Would this not have been better than engaging in secretive meetings which gave too little, too late and obviously did not satisfy the Panel in terms of what they were looking for?

Is it not too simplistic a tactic to merely denounce all these individuals on the thinly argued premise that they have been ‘’bought over’’ by the ‘’Western powers’ which appears to be a massively popular line still followed by the government and its propagandists? The Chair of the UN Advisory Panel is the former Attorney General of Indonesia who had built up a reputation for integrity during his term in office.
The only ‘black mark’ against him appeared to be that he formed part of the International Independent Group of Eminent Persons (IIGEP) which left the country following an unsuccessful attempt at engagement with the Udalagama Commission of Inquiry. The IIGEP included some of the top jurists in the world. Are we categorising all of them as pro-LTTE? The other two members of the Panel are also undeniably reputed in their own fields.

This column has said this more than once and says it again. We need to put our own house in order, in fundamental respects pertaining to the Rule of Law. That is a far more difficult task than mere name calling. Assuredly we do not need to give an open cheque to President Mahinda Rajapaksa to do what he wishes with this country purely because he gave leadership to the war effort, and that too, when the primary military architect of the war is now languishing in jail.

Indeed, in the post war phase, the irreparable damage that the government is doing to the country’s democratic institutions deprives the war victory of its most meaningful gains. This is the truth, as unpalatable as it may be to some of us. As for the rest, let us see where our arrant foolishness will lead us.

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