The weekly Times column, “Focus on Rights” by Kishali Pinto Jayawardena, in the Sunday Times, Sri Lanka, on 30 August 2015, forwarded by the Asian Human Rights Commission
Kishali Pinto Jayawardena
With the September 2015 report of the United Nations Human Rights Council (UNHRC) referencing war-time accountability of Sri Lanka’s political and military command looming nearer, the question which we need to ask is quite simple.
Recognising the systemic problem
As much as decades of politicized and bloodied elections were confounded by the conducting of an impeccable parliamentary election this month by the Commissioner of Elections and state officers, can this country look deep into the trauma suffered by Tamil civilians during conflict, apportion accountability and redress grievous wrongs of the past in a similarly impeccable manner?
This is the primary responsibility of the State after all. Yet the deceptively appealing simplicity of this question is belied by a multi-layered complex of overlapping problems which lie at the heart of the country’s well entrenched impunity structures. A central problem is the identification of abuses as isolated incidents occurring at the hands of a few individuals, whether police, army or special forces. In actual fact, fear, surveillance, intimidation and finally extra-judicial execution or enforced disappearance have been strategies employed by all governments of Sri Lanka at various times.
Other misconceptions persist. For example, the argument that whatever atrocities committed were excusable because the nature of the enemy was equal or worse, is not justifiable. In the current context, the protagonist was the Liberation Tigers of Tamil Eelam (LTTE). But at a different period in history not so long ago, this same argument was employed in respect of Southern insurrectionists, the Janatha Vimukthi Peramuna (JVP) as Sinhalese forces went into Sinhalese villages suspected of harbouring rebellious tendencies and shot at mothers carrying tiny babies, shooting also at the infants as they were dropping to the ground. This history as extensively documented by the Commissions on Enforced Disappearances of the 1990’s speaks to a savagery that has been part of the state structure for far too long.
Radical reforms will be necessary
This may also be a tad inconvenient for some who may prefer to focus only on the LTTE vis a vis the State of Sri Lanka. Let it be unequivocally said however that the equation cannot be simplified to such an unbearable extent. A more comprehensive view is needed in regard to redressing Sri Lanka’s accountability question. It is this kind of informed approach which will have traction domestically and enable actual changes on the ground, as difficult as they may appear to be.
Part of this task will involve radical changes to criminal law and procedure in line with accepted comparative standards elsewhere in the world. For example, an oft mentioned concern has been the non-inclusion of the concept of command responsibility in Sri Lanka’s penal law. This was precisely the reason why, for example, two high ranking police officers were ultimately absolved by the Supreme Court from any responsibility in the senseless killing of Tamil detainees in the Bindunuwewa rehabilitation camp several years ago.
While this week the government announced a policy change in prescribing the issuance of receipts when a person is arrested, this remains quite pitifully inadequate in addressing major failures of protection of civil liberties. Under prevalent statutes, a suspect has no right to his/her own lawyer and/or interpreter. Custodial officers are not obliged to inform family members of the arrest. The Code of Criminal Procedure Act is silent on these important safeguards. Constitutional protections are similarly wanting. Article 13(3) of the Constitution only secures the right of legal representation to an accused, not a suspect. In terms of the special law applying to particular categories of offences such as murder, suspects detained under its provisions are allowed to consult an attorney-at-law of his choice and to communicate with any relative or friend of his choice. But this is only in limited categories. Moreover the medical examination of a suspect is at the discretion of the officer-in-charge of a police station. Cumulatively therefore, the law is wholly deficient in providing basic safeguards against abuse. This must be corrected.
Amending the anti-terrorism laws
The other aspect of this problem is resort to emergency law including the Prevention of Terrorism Act (PTA). Reasons for arrest are not given. Detention is not subjected to effective judicial control. There is no right of independent access to legal counsel or medical examination. There is legal admissibility of confessions made to a senior police officer and in a most ridiculous casting aside of the presumption of innocence, the accused needs to prove that such confessions were not voluntarily made. Though there have been judicial disputes on this question, the Court has been inclined to accept a confession under emergency law if the accused is unable to prove that it was made involuntarily. However the nature of situations in which such confessions is extracted make this burden very difficult for the suspect to prove.
Against such a background of entrenched abuse, addressing the historical paralysis of Sri Lanka’s legal system in regard to State accountability is doubtless difficult if not well nigh impossible. Details emerging within recent weeks of the disappearance of journalist Prageeth Ekneligoda, the ‘lifting’ of countless Northern based activists and so on indicate that these were tactics employed by the security establishment where special mechanisms and places of detention were utilized. The issue at hand is not limited to dealing with the actions of a few rogue individuals. Instead it must be recognized as being systemic in nature.
Taking the sting out of the September UN report
Logically therefore, whatever domestic accountability process that is being contemplated in order to take the sting out of the September UNHRC report must be with full public participation and not shrouded in secrecy as it is now. Focusing only in a few selected criminal investigations and identifying perpetrators most often not in the actual line of command will also not suffice.
Above all, we need to acknowledge that Sri Lanka’s accountability problem is not merely limited to a majority-minority dynamic but is far more complex in nature.This understanding is crucial in contextualizing current dilemmas relating to state accountability for violations committed during the final stages of the Wanni war. Ensuring justice and healing the hearts of those who have suffered must take these factors into account.
