Kishali Pinto Jayawardene (Sunday Times)
From the reports of the Disappearances Commission in the 1990’s to the findings of the Lessons Learnt and Reconciliation Commission (2011) to the most recent report of the Consultation Task Force on Reconciliation (2017), it has been a long and undeniably hopeless ride for Sri Lanka’s victims.
Throughout that process, which has also been littered by many other commission reports of greater or lesser importance, the overriding message was simple; heed the call of Sri Lanka’s people from all four corners of the country asking for justice and for recognition of the atrocities that they have suffered as human beings.
Instruments for political purposes
But the single greatest national tragedy is that without exception, all these efforts (regardless of the genuineness or otherwise of the individuals contributing therein) have been cynically premised from the very start itself to serve as instruments for political purposes, to be discarded when these purposes have been served.
More than twenty years ago, Chandrika Kumaratunga’s Disappearances Commissions were perhaps the most hopeful initiatives, ushered in with goodwill in the dawn of a new era of equity, equality and constitutional governance that was promised. Alas, the crippling lack of an enlightened political leadership soon put paid to that dream. Adding insult to injury, the Commissions themselves were sought to be used as political instruments to settle scores with enemies of the previous regime.
Cartoon from internet
In the final result, their reports prepared under Presidential Warrant were not even published in full. Parts of the findings even today remain blocked to public scrutiny, unsurprisingly so since they name perpetrators in uniform and in positions of political power, some of whom are very much still in public life.
The downward spiral of the judiciary
The Kumaratunga Presidency was marked not only by the grievous failure of the Disappearances Commissions but also by the crippling politicization of Sri Lanka’s Supreme Court which commended its downward spiral during that time, even as the country’s senior public intellectuals in law remained complicit and silent.
Let no one mistake the matter; it is precisely as a result of that degeneration that Sri Lanka’s legal systems attracted scrutiny, leading the country to ultimately confront the current call for international justice. It was a shameful indictment on a justice institution which counts among the oldest in South Asia and once ranked distinguished jurists among its members.
The next singular marker on this list, the LLRC, was conceived by former President Mahinda Rajapaksa to get the pesky international community calling for accountability in respect of atrocities committed in the Wanni during the closing days of the ethnic conflict, off his back. Many of the LLRC’s excellent recommendations were disregarded in the same cavalier manner as its predecessors.
Time for pleasantries over
And brought into being on a similar rationale as the LLRC, (in other words, to divert international pressure plainly and simply), the Unity Government’s Consultation Task Force on Reconciliation which came out with its report this week, is now being contemptuously attacked by prominent Ministers. It seems, and unequivocally so, that hypocritical pleasantries and the time for sheathing the sword is now over.
Certainly the coyness on the part of both President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe to publicly endorse the effort, even if not agree with all the recommendations therein should not be seen as accidental. Clearly this was an initiative that was useful while it lasted to divert the attention of international actors. Now with the near advent of an isolationist and exceptionally maverick US President to the White House, that pressure is not expected to impact in quite the same way.
And confronted by ultra-nationalist forces under the Rajapaksa banner in the South, it does not need a remarkable cerebral effort to predict what will happen next. Barring the proverbial miracle, Sri Lanka’s political leadership, commonly referred to disingenuously as a Unity Government, though increasingly lacking the core elements of actual unity, will take the easy way out to indulge in the outrageous minimum of a few selected trials (if at all), while leaving graver system failures of justice unresolved.
No reason to expect outrage
There is little to prevent such an eventuality. By itself, there is faltering public ownership of the outcomes. Only the naïve would expect a storm of public outrage by an indifferent South which has, apart from selective consultations with selected actors, been largely ignored in both the transitional justice discussions and the constitutional reforms.
On its own part, the North has been rendered sullen if not resentful at the preferential and selective handling of transitional justice priorities. In any event, a stuttering Office of Missing Persons and a Victims and Witnesses Protection Authority which includes members accused with good reason of terrorizing witnesses during the Rajapaksa years are scarce factors for compelling confidence.
And to cap it all, the Government still has not reneged on its astonishing proposal of a draconian counter-terror law that will catch up citizens in its iron grip. So it may be fairly said that the year has begun un-propitiously for those yearning for change.
Need for a commonsensical counter-balance
But labeling every discussion with an ethnic tag, as some hardliners in the North (and their diaspora supporters) prefer to, only aggravates the matter. The ethnic dimension in ‘hard cases’ has been borne out in several studies co-authored by this columnist, including the more frequently cited ‘The Judicial Mind in Sri Lanka’ (2014) as well as ‘Habeas Corpus in Sri Lanka; Theory and Practice of the Great Writ in Extraordinary Times’ (2010). That does not need to be particularly reiterated.
Yet confining the country’s post-war crisis of justice to an ethnic dimension alone is unforgivably blinkered. The New Year must surely see deep reflections on the need for justice by Sri Lanka’s grass roots communities. These must provide a commonsensical counter-balance to tired rhetoric in conference halls and funded donor projects as well as confound utopian dreams of nationalistic hardliners.
For most of the past two years, the ‘transitional justice’ industry which flourishes in Colombo, in conjunction with a constitutional reform process which is looking as much a pipe dream as everything else, has successfully diverted attention away from pressing systemic reforms. That has to change. Without that collective intervention, we will only tread the same hopeless path, viciously cut by venal politicians over and over again.