An interview published in the UCA News, Thailand forwarded by the Asian Human Rights Commission
Prominent Sri Lankan rights lawyer Basil Fernando was effectively forced from his homeland amid mounting death threats. Now, 13 years after he left, Fernando has returned to Sri Lanka following last month’s surprise ouster of strongman Mahinda Rajapaksa, who was defeated in a January 8 presidential election by Maithripala Sirisena.
Almost six years after its decades-long civil war came to a close, Sri Lanka continues to battle with its history. An estimated 100,000 civilians died during the war between the government and the Liberation Tigers of Tamil Eelam (LTTE) and tensions between the majority Sinhalese Buddhists and minority Tamils remain high.
Last week, Fernando, who is the director of the Asian Human Rights Commission, sat down with ucanews.com to discuss the prospect of reconciliation and the future of a country torn apart by war.
Do you think UN–led investigation into war crimes should be welcomed and allowed in Sri Lanka?
A UN-led investigation mechanism is only a threat to a government like that under the former president, Mahinda Rajapaksa. It is not a threat to a democratic regime overall because democratic regimes working to improve their own system will make sure that they undertake their own investigation. If the UN undertakes an inquiry, the ultimate agenda is only to facilitate peace. So I’ve never seen this as a threat. I only see this as an extremely positive step. The international mechanisms are created when the national mechanisms do not work.
The new government has already announced that it is not going to follow the UN mechanism but use a local mechanism to investigate war crimes. How do you feel about this?
The government has to use a local mechanism for a war crimes probe but also has to tell the international community what we are doing. I have campaigned for an international investigation. The UN investigation helps the minority within a framework of rule of law and democracy, in a way that both the majority and minority benefit. UN interventions are meant to help the development of sustainable democracy for the benefit of everybody. No democratic government can keep people silent when they investigate a crime.
Should the government seek to demilitarize the North?
Any nation should be demilitarized unless there is a war. The government should use the military for peaceful purposes. Give the law and order function to the police. Soldiers do not enjoy war but politicians enjoy war and those who profit from it enjoy war. We can keep the military happy by using them for peaceful actions. Let us treat our soldiers humanely and give them the facilities to regain their mental and emotional health.
What should the new government do to curb violence committed by radical Buddhists monks and their followers?
The organization Bodu Bala Sena developed not from any kind of religious impulse, but from a political one that was supported by some sections of the former government and military intelligence. So it is a much more sophisticated problem than people moving over to a popular religious group. No action has been taken against their violent activities. Police officers and government officials are afraid to fulfill their duties.
If we have a strong legal mechanism, it doesn’t matter if a religious person commits a crime, if a chief justice does, if a former president does or new government official does. If the legal system is not there, however, this kind of violence will continue.
Religious leaders should go out, talk to each other and try to show interest in these issues. They should try to help the country improve; it’s more important than anything else. When the pope addressed this issue recently he said that we are partners of development of the country. That must be shown practically and we all, even minority groups, should play an active role. Let us get together and make use of this time to change.
Apart from legal mechanisms at the court level, what about law enforcement? Why is the use of torture by police to interrogate suspects so common in Sri Lanka?
Every police station in Sri Lanka carries out criminal investigation through torture. I do not blame the police officers that do this because they have not been taught alternatives. We don’t have a proper criminal investigation system, therefore there is widespread use of torture.
Torture is widespread in most developing countries because their criminal investigation mechanisms are very poor. Sri Lanka and Bangladesh come first for widespread use of torture in South Asia. In Pakistan and India there is torture, but they have better controls in place.
What motivated you to work on the issue of police torture?
I was born in Sri Lanka and saw police torture starting during my childhood. After I became a lawyer I was confronted with that regularly. We have social obligations. What is our life unless we meet some social obligations? I reacted when I saw evil in the country.
What policies should be implemented to teach police to carry out a proper investigation?
Send the police to investigative schools. Every country has changed their investigative mechanisms but we follow methods that existed in 19th century. The government should give leadership positions to those who are educated and send them to study new investigative techniques overseas.
At this moment we are extending support particularly in the area of reforming Sri Lankan police. We would like them to become an active law enforcement force with better ethics, as part of improving the basic structure of the justice system. I believe within six months we can reform and reduce corruption in the country.
Why have you stayed away from Sri Lanka for so long?
My name was put on a death list in 1989 and I was informed by an officer in charge of the terrorism unit in Peliyagoda, Colombo. He told me that somebody had come and put my name down as a terrorist. I was an active lawyer during that time and did work that other lawyers didn’t want to do. I had some problems with lawyers as well as police.
I also got a message that if I came back to the country again they could arrest me. Then I started to play an active role in the field of human rights and kept on speaking, writing and talking about violations in the country but could do more from outside of the country. I learned a lot in every possible way about the world and democracy. I lived in a country [Hong Kong] where democracy and rule of law [at the time] was a reality and where bribery has been successfully prevented.
What made you decide to come back?
Very frankly the defeat of Mahinda Rajapaksa’s regime and the dismantling of the mechanism created by [his brother and former defense secretary] Gotabaya Rajapaksa. Death squads, illegal arrests, all these mechanisms were kept alive by him. I feel we are not coming to a paradise but coming to a normal life. I want to support the positive side of the new government’s program and I would like to play an active role in a small way too.
What should the new government focus on to bring about lasting peace not just between Sinhalese and Tamils, but also between religious groups?
Reconciliation is impossible without rule of law. Many people who talk about reconciliation only think about how to bring one group together, bringing Tamils and Sinhalese together or religious groups together, but what is needed for reconciliation is to create a framework for functional rule of law. That is impossible without resurrecting the civil and police system. The government should prioritize allocating a considerable amount of funds in order to improve the criminal justice system, particularly to make our police officers better investigators. No justice system can function unless investigators do a good job.
In my view, the first act of reconciliation must be a serious investment in rule of law to create the environment for people to solve their problems.
Reconciliation is not an action carried out by some NGO groups, a few leaders and intellectuals. It is an action involving people to people. In order to avoid trouble and receive justice for the disappearance of loved ones, there should be a protection mechanism. Protection lies with civilians and police. Then people can be free to ask about their loved ones and what happened to them.
