Columns - FOCUS On Rights

Callous politicisation of the pain of victims
By Kishali Pinto Jayawardene

This week's conviction and sentencing of former Senior Superintendent of Police (SSP) Douglas Pieris and four other policemen to five years rigorous imprisonment by the Gampaha High Court for the abduction of two schoolboys during the eighties and their confinement in the Batalanda torture chamber may seem immediately euphoric to some. However, the significance of this case goes beyond the individual culpability of Peiris, (an infamous police officer widely involved in thousands of enforced disappearances of mainly Sinhalese civilians), and others. Instead, the case is relevant in today's context in certain important respects.

The Batalanda Commission and the Udalagama Commission

One direct reference point concerns the Final Report of the Batalanda Commission, (Sessional Paper No. 1, 2000) which implicated Peiris and others, including then frontline minister of the UNP government and current leader of the opposition Ranil Wickremesinghe in running a torture chamber at the Batalanda housing scheme. This report was not released to the public until some years had lapsed after it was presented to then President Chandrika Kumaratunge.

As in the case of the current Udalagama Commission of Inquiry, alleged 'extracts' were mischievously released at that time to some newspapers.

What should have been a rigorously conducted inquiry into most atrocious happenings of torture, disappearances and extra judicial executions were then converted into a veritable political circus in line with common patterns of such Commissions of Inquiry. This pattern continues to date. And as was asked at that time of President Kumaratunge in respect of the Batalanda Commission Report, we need to ask President Mahinda Rajapakse as well as to why this government is reluctant to formally release the entire Udalagama Commission of Inquiry Report. If, all that this report does is to absolve government forces of any responsibility in regard to the killings that were investigated, then why indeed this reluctance?

Demands for justice

At another level, while the Southern 'enforced disappearances' drag on in their long and weary way resulting in a trickle of retribution (as in the Douglas Pieris case) with little significant impact on long term impunity, what of 'enforced disappearances' and extra judicial executions in the North and East. The failure of the domestic systems of justice has fuelled demands by some that this country's political and military leaders should be prosecuted for war crimes by an international tribunal.

This cry continues to be pressed to the full as witnessed by this week's footage aired by a British television channel purporting to show the military executing individuals which is denied by the government as doctored footage.

As little chance of success as these cries may have on the one hand, given the current state of international law and realpolitick, this pressure affords the government (on the other hand) a most convenient reason to shore up public support for continuing internal repression under the cover of a persuasively convincing 'look at the forces ranged against us' type of argument, underscored by the distinct hypocrisy in a small nation being singled out for war crimes inquiries while superpowers on the world's stage get away with far worse crimes. Hence, we have a classic example of the most vicious of vicious circles.

Recognising atrocities against innocents

This column has consistently taken the position that Sri Lanka's deficient legal and constitutional structures should be improved in line with international treaty obligations brought on board years back by far sighted visionaries such as the late Lakshman Kadirgamar. However, ultimately Sri Lanka's problems must be for Sri Lankans to solve. In that sense, I refuse to believe that this country's ordinary people are willing to accept the logic that atrocities against innocents ought to be brushed aside without recognition or redress.

I refuse also to subscribe to the unblushing and embarrassingly unconditional admiration professed by some sycophants and journalistic hacks for compromised Commissions of Inquiry. There needs to be moderate voices expressed that calls for a different culture of engagement with contrary views rather than the hate-mongering and the scandalous invective of the 'bad' (or still worse, the 'clearly unbalanced') among us which presently dominates much of the public sphere with reason and balance lost in the fury.

Imperatives of reconciliation

If there is to be true reconciliation, then (in the minimum), the reality of decades-long atrocities against civilians both in the South as well as in the North and East must be recognised. The practical validity of the 17th Amendment to the Constitution must be restored. Sri Lanka's Constitution, criminal justice laws, practices and procedures must be reformed. In many like cases such as the Douglas Peiris conviction which amounts to a mere slap on the wrist on a confirmed offender, a more severe sentence cannot be imposed given that Sri Lanka's Penal Code lacks an offence of enforced disappearance forcing prosecutors to bring their cases within the ambit of ordinary criminal offences such as abduction and wrongful confinement. The penal law should be revised and amended to bring in the concept of command responsibility as well as a specific crime of enforced disappearance with commensurately severe sentences.

Legal reforms and the pain of victims

To their credit however, some judges are increasingly imposing the fullest possible deterrence that the law allows them in the few cases that are actually taken to court as opposed to the greater number that fall by the wayside due to bad investigations, lacklustre prosecutions and absence of witness protection. In some instances, the Court of Appeal has also doubled the sentences imposed, as was the case recently in respect of an appeal against a conviction of a soldier for similar crimes by the Panadura High Court. Yet such determination on the part of few judges, though creditable, is not sufficient.

There must be wholesale and carefully thought out reforms of our systems, laws and procedures. Currently, we do not even have the minimum right of confidential legal representation as of right to suspects in police custody. Genuine reparations need to be made for victims, even if this is after decades of silence.

This callous politicization of the pain of victims must stop at least now in the name of the four great religions and religious philosophies that underlie Sri Lankan society.

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