By Jude Fernando –
“Justice will not be served until those who are unaffected are as outraged as those who are.” ― Benjamin Franklin
“Freedom for the wolves has often meant death to the sheep.” ― Isaiah Berlin
While the government may be able to successfully introduce constitutional reforms to curb the powers of the Executive and rehabilitate the electoral system, its economic policies will not produce many tangible results in just 100 days, as the public may expect. The government’s survival in the next general election is likely to be largely determined by how it responds to the two-pronged issue of justice: corruption under the Rajapaksa regime, and accountability for allegations of human rights abuses and war crimes committed during the last phase of the Sri Lankan civil war. These two issues are equally important and interconnected, and prioritizing one over the other could cost the government the next election. The reasons for the Rajapaksa regime’s rise and fall, and the public’s trust in the Maithripala regime’s promise of good governance, are inextricably related to these two issues.
One can understand the Rajapaksa regime’s survival for ten years – despite its record of abuses of power and dismantling of democracy – and its subsequent fall, only in relation to the means by which it maintained power. Its skillful manipulation of public fears legitimized its denial and procrastination of fulfilling domestic and international obligations. In doing so, it was able to avoid accountability for allegations of human rights abuses during and after the war, and deflect attention away from its failure to provide meaningful devolution of power to the country’s northern and eastern regions.
The Maithripala government cannot save the country from such a dark political legacy if those accused of corruption escape scrutiny. Nor can it ignore domestic and international demands for accountability and transitional justice. To do so risks falling prey to diabolical extremists who have made the rather preposterous claim that giving into those demands is hostile and diametrically opposed to the existential interests of the Sinhala community. It is equally important not to provide opportunities for those sinister forces conspiring to prevent the Tamil community from collaborating with government. The government’s responses to these challenges will determine its success in restoring good governance and justice, although these challenges do not necessarily arise from the same context and require different responses.
President Sirisena himself acknowledged the slow progress of bringing culprits to justice. The majority welcomes his decision to appoint a presidential commission to investigate corruption charges. However, its success depends on whether the government empowers it to carry out its tasks and insulates it from undue political and other interference. Here, the government faces a dilemma. First, it cannot afford to make legal and political blunders by rushing the investigations just because they form part of an election pledge. Nor can it spend all its time and resources addressing the issue of corruption at the expense of fulfilling its other promises in its 100-day plan.
Second, delaying bringing to justice those responsible will undermine the government’s credibility. More importantly, it will undermine the justice system’s credibility and could even cost the government the next parliamentary election. The government’s opponents will exploit both to destabilize the government, forcing the government to rush and devote the majority of its time and resources to deal with corruption. Any delay could produce similar results, benefiting the opposition. The best option for the president is to fearlessly pursue truth and justice regardless of the short-term political risks, to avoid a backlash will boomerang.
The government worries that its popularity will crumble if the public perceives punishing the culprits as being part of a settling scores campaign. Indeed, the opposition might accuse the government of being vindictive toward its own political opponents. Punishment is not vengeance or retribution when it upholds justice and offers restitution. Nor is it vengeful to prevent the unjust carrying out of public activities, including unlawful attempts to obtain power. Any delay in investigating corruption is unfair even to the accused because they must have an opportunity to clear their names.
For the public, any delay would vindicate claims of innocence and provide opportunities for the opposition to regroup. Having enjoyed power and wealth for nearly a decade, and now vulnerable to being brought to justice, the opposition will do its utmost to regain power. A change of political actors does not automatically transform the values of the entire political culture. The considerable influence those accused still command over different layers of the justice system and mass media may be another reason for the delay in bringing people to justice. We must not forget that the charges of corruption are not limited to members of the previous government, but to everyone. Corruption was widely networked and penetrated into every layer of society. All those connected to corruption will try to conceal the truth and sabotage justice.
Corruption will persist until the primary culprits are prosecuted. The worry now is that the government will prolong the investigations to placate the public until the next election and scapegoat a few lower-ranking individuals while the primary perpetrators, who occupy higher levels of the political, civil, and private sectors, go free. If this occurs, no one will believe the government’s promise to create a corruption-free culture. This would strengthen the opposition. The government must remember that corruption was the main reason for the landslide victory of the Adam Adami Party over the BJP and the Congress Party in neighboring India.
Since many believe the corruption and human rights abuse allegations, the most debilitating consequence of the government’s failure to bring those on the “black list” to justice would be the loss of public faith in the justice system. The public is already suspicious of the justice system, which seems lenient toward select influential politicians and privileged individuals, while being harsher toward others. Would the police department seek the attorney general’s advice before questioning less privileged individuals accused of violating immigration laws and obtaining a diplomatic passport? Why has the government arrested only one senior politician and a few lower level employees of public and private institutions, rather than those occupying higher levels of authority? Why has the government arrested the former head of the Independent Television Network (ITN), but not billionaire business tycoons? Why was the court hearing for a prominent cabinet minister postponed? Why are some people’s passports impounded while under investigation, and others permitted to leave the country, despite public protest? The answers to these hard questions certainly have legal and political implications.
If legitimate reasons exist for these inconsistencies, the government needs to explain them to the public. The police department’s media spokesperson carefully explains the progress of some cases, yet remains silent on others. People should not know every detail, but the government needs to engage the public in such a way as not to provide ammunition to its critics. The government cannot take for granted that the majority is as concerned as the government about corruption compared to other issues ordinary citizens face. It desperately needs a public relations campaign to educate the public regarding short- and long-term consequences of delaying prosecuting corruption cases and progress on good governance and the future of the justice system.
Truth and Accountability
The second area of justice involves international and domestic demands for transitional justice, accountability for allegations of human rights abuses and war crimes, and devolution of power. The Tamils do not expect miracles from the Siresena regime in 100 days. Still, the government is in a much stronger position than the previous regime’s, given that the Tamil political parties have expressed their willingness to work with the government and the international community appears to support this government. The onus is on the government to exploit this opportunity and bring closure to the issue so that the country can move onto other equally pressing issues.
Once its report is complete, the UNHCR will likely refer it to Sri Lanka’s ‘domestic mechanism for action.’ To ensure good governance and transitional justice for the Tamil community and the country as a whole, the international community must consider the government’s request to carefully time the release of the report due to the rather complex and difficult transition to good governance in which the government is involved. However, the government also needs to answer a number of questions. How does the delay in releasing the UNHCR report help the government set up a domestic mechanism for managing human rights and reconciliation issues? Why are releasing the report and strengthening of the domestic mechanisms posited as contradictory? Would the domestic mechanism as an alternative inquiry into war crimes allegations replace the international inquiry or serve as a mechanism to apply the report’s findings to ensure restorative justice? Answers to these questions will enhance the government’s position regarding the accountability and reconciliation process.
Either way, given the complexity of domestic and international politics, a compromise for an inquiry into human rights abuses and war crimes would be a joint committee agreeable to both the government and the Tamil community. Let the committee and the justice system, not the politicians, decide whether the abuses that took place during and after the war constitute war crimes. If the government is opposed to international intervention, it should explain its reasons to the Tamil community, given their reservations about a domestic inquiry as indicated in the resolution passed at the Northern Provincial Council. One might well ask whether a resolution per se creates national disharmony and undermine the government’s attempt to strengthen countries justice system. However, we must try to answer this question in the context in which the resolution was passed before passing any hasty judgments about it.
Northern Provincial Council’s opinion will not affect the findings of the UNHCR report. It is one among many other opinions as to how the Tamil community should corporate with the government and the international community with regard to the future reconciliation process. ‘Smart patriots’, even with a slightest semblance of moral integrity, will assess the merits of the Northern Resolution in relation to Tamils community’s loss of faith in the country’s justice system. Highly politicized justice system failed to reveal the truth about human rights violations during and after the war and to bring those responsible to justice. No impartial domestic investigation could have taken place under the previous government since the culture of fear and intimidation I created prevented people were willing to give evidence. Similar experiences of Sinhalese and other minorities (e.g. abductions, killings, disappearances and deprivations of the due process) reached a deplorable state under the Rajapaksa regime. We also need to empathize with public skepticism over the present government’s ability to expose and silence those who obstruct truth and justice. The current government is a coalition comprised of different political parties known for their different ideological and political positions regarding reconciliation and transitional justice. It has to face a challenging general election in a few months against an opposition that is likely to exploit the government’s responses in this regard.
Evidently, today’s governments respond more when they are under international than domestic pressure, despite the questionable motives of those international actors. An International inquiry as it is envisioned would not be inherently partial, since it promises to expose truths about the massacres, abductions, and use of people as human shields by the LTTE, and does not claim to take away the right of the government to ensure the impartiality of the inquiry. The government has the right to complain to the UNHCR if the committee is acting impartially and is evidence is distorted by any party. If taken with a sense of humility, such an inquiry will have a positive impact on the new government’s efforts to restore the credibility of the domestic justice system, and would help eradicate public doubts about the Sri Lankan government’s commitment to truth and justice.
Discovering truth through an impartial inquiry and strengthening the domestic mechanisms of accountability along with truth and restitution differ markedly. In any justice system, truth is non-negotiable and precedes restitution. In most cases, restitutional relevance and proportionality are negotiable. For these important reasons, the government needs to pay as much attention and due consideration to the Tamils’ perspectives regarding the type of inquiry that would be most impartial, as much as to those who oppose such an inquiry. Equally important is to defuse simplistic arguments accusing Tamil political parties and civil society groups calling for an international inquiry of acts of aggression against the Sinhalese. Nor should the government succumb to the claims that the Tamil parties demand for an impartial inquiry is indicative of their refusal to work within a united Sri Lanka or their lack empathy for the difficult transition process with which the government is faced. Such views will only strengthen both extremes of the ethnic divide and cost both the Sinhala and Tamil votes in the next elections. Not only the Tamils but also the Sinhalese continue to pressure the government to conduct impartial inquiries into charges of corruption and human rights abuses!
Myths and unfounded fears about an impartial inquiry prevent the meeting of public and international demands for accountability. The government should dispel misperceptions and educate the public as to why accountability is a precondition for good governance: to enhance the security forces’ reputation, restore the justice system’s credibility, and even more importantly debunk conspiracy theories about external intervention. The present government cannot pursue the same strategy as the previous government. The purpose of the previous regime’s avoiding an international inquiry was to enhance its public legitimacy by calling such an inquiry a national security threat. This position only safeguarded the regime’s interests. It did not address accountability issues or national security threats, wasted a colossal amount of public funds, and passed the problem onto the present government, along with formidable constraints.
The government should focus on the benefits of an impartial inquiry, proving its ability to pursue truth in an unbiased manner. How will truth contribute to transitional justice and good governance? How might that truth be used as a smokescreen to exert undue pressure on Sri Lanka? How will the revelation of truth and subsequent restitution relieve such pressures and place the country on a high moral footing in the world’s eyes? How would Sri Lanka’s commitment to truth and justice contribute to international human rights? What precedent could Sri Lanka set for international human rights? Such public engagement could create the domestic and international conditions needed to ensure accountability and reconciliation.
Transitional justice is non-negotiable and morally desirable, and helps to build trust between the two communities to create the necessary conditions for a long-term political solution to the conflict. The government has already taken a number of steps, including changing the governor, passing a bill to hand over land to the public, and restricting the military’s movements. The government might succeed in implementing the 13th Amendment, but it needs to be attentive to the Tamil community’s reservations. It should demonstrate that it is not simply about administrative decentralization, but actual devolution of power; the two are fundamentally different.
Devolution debates mainly focus on perceived threats to the country. Many see devolution as a step toward separation and antithetical to the ‘unitary’ character of the country. Instead, we should focus on two different questions: How would the substantial devolution of power to the northern and eastern regions contribute to the economic and cultural vitality of the regions and the country? Secondly, how would such devolution contribute to good governance and to reduce the concentration of power at the center? The government could demonstrate its commitment to devolution by involving all the communities as equal stakeholders in the dialogue, as opposed to imposing devolution from the top down. The government should not abrogate this responsibility just because it now commands the goodwill of those countries that demand accountability.
The foreign minister’s speech in the United States regarding the accountability and reconciliation process is welcome. The speech is far more nuanced than speeches made by his predecessor on similar subjects. At the moment, the foreign minister (and rightly so) is busy abroad negotiating with international actors. But similar enthusiasm is lacking in domestic efforts to counter the opposition’s criticism of these negotiations. This will only add to the legitimacy of the opposition’s claim that the government is secretly collaborating with foreign forces hostile to the country’s national interests.
In short, if the present government provides credibility to previous government’s racist slogans and tactics to delay justice, it will runs the risk of losing both Tamil and Sinhala votes at the next general election. This government also risks the majority vote if it permits the opposition to fan the flames of the majority community’s fears of the government’s approach to transitional justice. This would further polarize the country along ethnic lines and cause it to become isolated internationally. The loss of another opportunity to restore public and international faith in the country’s justice system and pave the way for another bunch of crooks to take over governance after next parliamentary election would be devastating.
The government needs a public relations campaign to alleviate the Sinhala fear of an impartial inquiry and candidly explain the meaning and necessity of devolution, dispelling myths and allaying fears. It is the government’s duty to create public awareness that critically examines the assumptions underlying these fears and prepare citizens to accept the hard choices the government needs to make to ensure accountability and good governance.
Good governance does not mean clinging to power at the expense of truth and justice. Failure to honor demands for transitional justice for minorities is not compatible with the moral integrity of good governance, nor could it be sustainable in the long term. The government must remember that the moral decadence of the Rajapaksa regime caused its downfall, despite its control over the state security apparatus and financial and state resources. Even the war euphoria was insufficient for the government to escape this moral indictment.
The morally superior course of action would be to take political risks by punishing those responsible for corruption and addressing the transitional justice concerns of the Tamil community. This would also better position the government to win the next election than abrogating responsibility for political expediency. Coming to terms with truth and justice is an easier way to restore the faith in country’s justice system, and it is inherently uncomfortable and never a risk free process. Such risk might be personal or political (e.g. losing the next election), but that would be a worthwhile price for justice, vouchsafing a victory for society in the long run. This is the lesson learned from the past two centuries’ positive social reforms.
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