By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

Those who murmured of ‘collateral damage’ and looked the other way when civilians were mowed down during the last days of the Wanni conflict in May 2009 certainly share a common callousness with those who shrugged their shoulders when previous governments of a different colour killed the ‘Southern terrorists’ of the Janatha Vimukthi Peramuna (JVP) with all the ruthlessness at its command, more than two and a half decades ago.

Decades of innocent blood spilt

In a large measure, these may even belong to the same social group, never mind the shocking imperviousness to innocent blood spilt and quite belying the inherently contradictory stances of professing themselves to be devout Buddhists.

Never mind also the cardinal principle that an elected government must be held to higher standards than a terrorist or insurgent group. The one overriding rationale is that even as barbaric and as bloody as the Sri Lankan State may be, it must be protected at all costs. So after decades of blood spilt of all ethnicities in this country, is it any wonder that this country still remains agonized? Without a honest reckoning of its tormented past, can there be any real peace for its people in the future?

For decades, this column had been emphasizing that the cry for justice in Sri Lanka is not exclusively limited to members of one ethnicity, however much lobbyists on one side of the ethnic divide may try to make out. This point was powerfully underscored by recent happenings regarding the chance discovery of 154 skeletons last year in the Matale District. As commented upon in these column spaces last month, there is a common element of impunity and a common cry for justice in respect of all these enforced disappearances of the past few decades. And it is that commonality that needs to be centered within the accountability debate concerning Sri Lanka, both within these shores and beyond, (see The Killing of Children and Sri Lanka’s Bloody Legacies, March 3rd 2013).

Undeniably unpalatable truths

This week, family members of those who disappeared (predominantly of Sinhala ethnicity), during the brutal state crackdown in that area, asked for justice from the government as forensic inquiries conclusively established evidence of brutal torture. Several skeletons had gruesome evidence of severed heads and limbs and in one instance, a skull had been sawn; in others, a wire had been used to give electric shock and hoops of thorns were discovered with skeletal remains.
Rightly, the JVP has dismissed the suggestion of a Presidential Commission of Inquiry with scorn and asked for a properly expedited judicial inquiry into the discovery of this crime scene, pointing out moreover that the Commanding Officer of the government troops in that area at that time was none other than the current Defence Secretary, the President’s brother. We are then confronted with the undeniably unpalatable truth that, at the very time that President Mahinda Rajapaksa was campaigning in Geneva as an enthusiastic opposition parliamentarian regarding the fate of the Sinhala ‘disappeared’, his own brother was in charge of a counter terror brigade that now stands accused of complicity in those very same horrific disappearances.

Applicable legal norms

Many years back. Wijesuriya and Another vs the State (77 NLR, 25) concerned one of the very first prosecutions of state agents for acts of degradation committed under the supposed authority of military law. In Wijesuriya’s Case, two army soldiers were prosecuted for the attempted murder of a suspected insurgent held in army custody after she had been arrested by the police. The accused claimed that the shooting occurred during combat where the first accused who first shot at her, was only carrying out the order of his superior officer to destroy (‘bump off’) the deceased.

The prosecution urged the court to hold that, whether there was a period of combat during the incident or a state of actual war, in either case, there could be no justification for the shooting of a prisoner who was held in custody. The Court of Criminal Appeal (the highest court at the time) agreed with this submission. It pointed out (unanimously) that no soldier could obey an order of his superior when such order is manifestly and obviously illegal and then plead mistake of fact in good faith. Provisions of international humanitarian law were referred to, in particular, the treatment of prisoners under the Geneva Conventions which had been ratified and accepted by Sri Lanka at that time.

The Court’s denunciation of terms such as “in combat”, “in the field”, “prisoners of war”, and “military necessity” which were sought to be used by counsel appearing for the accused to justify the brutal acts committed by them, was notable. It rejected the argument that when a state of emergency is called, the ordinary civil law of the land is pro tanto suspended, thus entitling the military to engage in whatever acts of brutality in pursuance or supposed pursuance under emergency powers conferred on them. The Court unanimously affirmed the convictions of the accused and by a majority, affirmed their sentences.

An era of abandonment of principles 

That was then. Now, we are in quite a different era which has disregarded those principles openly. Yet the point is also our own cynicism on these matters. So when the JVP asks for a credible inquiry, we resort instead to the nonchalant query as to what inquiry is possible for those killed by the JVP during that time?

Such cynics should be reminded yet again that the government’s blatant committing of atrocities needs to be treated quite differently to the barbarities committed by terror groups from the North, east or South as the case may be. When we abandon that crucial distinction, we abandon also the notion that Sri Lanka is a democratic country. Worse, we open ourselves to a dangerous obliteration of basic Rule of Law safeguards. In actual fact, it is precisely at this forsaken state that this country is in now, where even the façade of law and constitutionalism has been ripped away.

Further, to be perfectly clear, there is little point in raising alarm cries regarding the deterioration of ordinary law and order while being unforgivably blasé regarding extraordinary crimes committed during extraordinary times. If we proceed down this path of casually dismissing past atrocities with no need for retributive penal punishments or even genuine restorative justice akin to Truth Commissions in other countries, we must also by necessary implication not be outraged when our police remain militarized and politicized, with the personal security of an ordinary individual at risk at any point of the day. There is a visible nexus from one manner of abandonment of the Rule of Law to the other. One cannot separate the normal from the abnormal any longer.

Pitiably, we are at this stage of complete abandonment, four years following the end of conflict. We should look not only at our politicians but also at ourselves and ask the question ‘Why?”