Colombo Telegraph

Domesticated Hybrid Court: Will Buddha Prevail Over Hegel & Marx?

By Jude Fernando

Jude Fernando

“There are only two mistakes one can make along the road to truth; not going all the way, and not starting.” – Gautama Buddha

“I’m for truth, no matter who tells it. I’m for justice, no matter who it’s for or against.” – Malcolm X

The notion of a ‘domestic investigation’ is a disingenuous political construct aimed to create a public impression that the investigation is free of foreign interference. In terms of its origins, most likely comprising personnel, stakeholders, and the standards the government must uphold, the notion is a hybrid compromise between local and foreign stakeholders. The media continue to bring to light evidence of backdoor negotiations between the government and the UNHRC, while the government continues to pretend that the final form of the inquiry will be a ‘domestic’ one. Even those political parties genuinely interested in a credible inquiry are unduly fearful of the political consequences the language of domestic inquiry carries. If the public debate about the nature of the inquiry loses its focus on truth and accountability, the consequences would be disastrous for the reconciliation and stability of the government.

Branding the investigation as domestic is a highly counterproductive public relations strategy. As a Janus-faced attempt to satisfy the selected domestic and international constituencies will place the government in a difficult situation when it really wants to solicit international support to enhance the credibility of the investigation and to provide a passage for witness protection, as required by the UNHRC resolution. By continuing to present a ‘mythical distinction’ between a domestic and a hybrid inquiry to the public and by not educating the public about how a hybrid inquiry could compensate for the inadequacies of the domestic justice system in addressing issues of accountability, the government creates suspicion about its motives behind the inquiry, thus lending unwanted credibility to conspiracy theories. At the moment it, is not only the government’s credibility that is at stake, but also its long term political survival as its opponents are hunting to exploit the contradictions and ambiguities in the government’s responses to the UNHRC resolution.

Take for example, the government’s self-destructive public utterances regarding the investigation. The Prime Minister in defense of the domestic inquiry, said that the government is, “ready to implement internationally accepted laws in accordance with Sri Lanka’s Constitution to respect public supremacy and safeguard national sovereignty” (LP/27/15). President Sirisena’s comment, “a domestic mechanism in accordance with the Constitution” (DM 2/15/15), further reinforces the Prime Minister’s statement.

Employing the notions of the ‘Constitution’ and ‘the public’ to demonstrate its ostensible commitment to a domestic inquiry raises questions about the government’s capacity to create conditions for a credible inquiry. The Constitution is subject to different interpretations that are highly subjective. We are dealing with a Constitution that has been an obstacle to finding a political solution to ethnic conflict. The public is not homogeneous, so its views and expectations of an inquiry differ. The cultural and political framings of the constitution are likely to benefit the majority community’s expectations of the investigation to the detriment of certain minorities. The judicial independence of the investigation is in doubt if the public views national sovereignty exclusively in ethno-nationalist terms. The interpretation of the Constitution follows the same lines. How can the government ensure the credibility of an investigation if internationally accepted laws contradict the Constitution and the ethno-nationalist sentiment of the public? The government’s propaganda machine is busy with the self-defeating task of trying to convince the public of the domesticity of the inquiry, rather than countering the opposition’s propaganda about the ‘myth of domesticity’ and inaccurate arguments about the absence of constitutional provisions for any international intervention in an inquiry. Cynics even wonder whether the government will use the Constitution and the public’s views as excuses to delay or politicize the inquiry.

When asked about the perception among some that the military would be sacrificed through these measures, the Prime Minister responded that, “the government would not sacrifice anybody.” In response to whether then-president Mahinda Rajapaksa or the former defense secretary Gotabaya Rajapaksa would be sacrificed, the Prime Minister said, in a lighter vein, that Mangala Samaraweera and Wijeyadasa Rajapaksa, both of whom are from the South, were involved in the UNHRC process and that, “those from the South will look after Southerners” (DM/28/Sep/15). This statement suggests that certain outcomes are already predetermined or that the government still has no control or is pandering to the forces that would undermine a credible inquiry. The implications of this statement contradicts the President’s assertion to the United Nations that, “we must deal honestly with the past” (DM/30/09/15), as well as Foreign Minister Mangala Samaraweera’s promise to bring those responsible for alleged war crimes and human rights abuses to justice. Prime Minister’s statement also begs the question as to whether the Prime Minister will fail to prevent, “any member of the security forces or anyone else [from being] scapegoats” (CT/28/09/15) so that others can escape justice.

It would be a mistake to treat these public utterance of the GOSL simply as ‘slip of the tongue,’ misrepresentations by the media, or inevitable when a government is involved in a difficult process of simultaneously maintaining political stability and navigating the demands for an impartial inquiry amidst a range of forces hostile to truth and justice. In the current multipolar world, such statements are indicative of a typical dilemma for states that are squeezed between immense pressure to work together to safeguard domestic and international human rights and their failure to protect rights constrained by racist ethno-religious nationalism and inequality-producing neoliberal economic policies. The same conditions have further reinforced the responsibility of the state to reconcile the individual/particularistic and common and general interests of human rights and justice. Attention to how these challenges to the state have unfolded provides us a better understanding of how different stakeholders are likely to position themselves with regards to demands of the UNHRC resolution.

The Morality, Religion, and State Nexus

Contrary to what the mainstream international relations theorists sympathetic to militaristic political realism want us to believe, morality, not geopolitical and economic interest, is the primary driving force behind pressure on Sri Lankan and foreign states to ensure accountability for war crimes and crimes against humanity. The ontological legitimacy of the state rests on its moral defense of the inalienable right to life and dignity of human beings. In a democracy, the state derives its popular legitimacy from being a space where the inequalities and injustices of civil society that arise from the conflict between common and individualist interests are reconciled and guided toward ethical ends. Society looks to the state in and of itself to be the embodiment of (or in the process of becoming) an ethical idea and freedom, where justice and equality prevail. In Hegel’s Philosophy of Right, to become ethnical means our “Personal individuality and its particular interests should “pass over of their own accord into the interest of the universal.” The state’s role in reconciling the universal and particular norms about human rights and justice are shaped by religious consciousness to the extent that it informs people’s perceptions of national identity, sovereignty and governance. Religion-state nexus is a critical, often ignored, determinant of contentious responses to domestic vs. foreign notions responses to the UNHRC resolution.

Under conditions where the state is defined as (in the process of becoming) a moral idea (i.e., yahapalanaya), the state’s physical, political, cultural, and economic priorities and boundaries have secondary importance when they are subject to the scrutiny of morality. Under moral governance, religion plays a critical role when it is important to people’s individual and collective identities and their relations with the state. In Buddhist philosophy, a moral state is one that upholds Dharma, the main pillars of which include virtue and righteousness and which carry the meanings of equity and impartiality. The state is imagined in universal terms as committed to protecting all beings in accordance with Dhamma. The king should possess the qualities of virtue (sila) and wisdom or intellect (pañña) to understand and distinguish between good and evil. The dhammaraja is first a protector of his subjects (janapadatthaviriya patto: jana, people; padattha, protection; viriya, effort) through the virtuous acts of righteousness and equity, rather than force, including military campaigns.

Righteousness should not be confused with self-righteousness, incidentally, because their meanings and practical implications are radically different. A recent commentary on the Alagaddupama Sutta shows that self-righteousness is a wrong attitude, which leads to conflict due to its connotations of self-assertion, superiority, and arrogance, all of which obstruct society’s pursuit of truth and justice. In contrast, in Brahmajala Sutta, the Buddha says that, “you should unravel what is false and point it out as false.” In the Sallekha Sutta, the Buddha also commands his disciples to do right even when others do wrong, and so on and so forth. It could also be argued that a state, not utilizing force as a tool of statecraft, its rulers could be held guilty of not protecting its own citizens. However, truth and accountability do not compromise, but they are far more promising means of safeguarding one’s own national security interest and cultivating a more mature and dignified notions of national identity and national security.

In the present context, this righteous governance means that ‘truth and justice’ are non-negotiable; they are not to be compromised in order to maintain the political, cultural, or economic sovereignty of states. Unrighteous governance is exemplified by a state’s lack of self-criticism of its own conduct, an unwillingness to pursue truth with humility, and a lack of political will that entail a failure to seek external assistance to overcome the state’s domestic weaknesses. As an embodiment of morality and freedom, the ideal state cannot rest as long as the truth about UNHRC allegations remains hidden, victims are punished, and the alleged perpetrators of crimes are not given a fair hearing to defend themselves.

However, a quasi-theocratic and democratic state in an ostensibly hyper-religious society such as Sri Lanka is unable to claim sufficient autonomy or to derive its popular legitimacy by guiding the society toward righteousness-based solutions for transitional justice issues. The state has not fully liberated itself from the racist and discriminatory political, economic, and cultural ideals and forces of a society that is opposed to truth and justice. The distinction between the state and (civil) society is a myth to the extent that they mirror each other and are determined by the same forces. The distinction between domestic, international and hybrid versions of the inquiry are simply a duplicitous attempt to blur that distinction further.

Karl Marx, in his “Critique of Hegel’s Doctrine of the State” shows that, contradiction between the state and civil society is characteristic of a society divided against itself, in which the functions of government are administered against society. Marx writes, “The ‘police’, the ‘judiciary’, and the ‘administration’ are not the representatives of a civil society which administers its own universal interests in them and through them; they are the representatives of the state and their task is to administer the state against civil society.” At the same time, the state cannot escape permanently from deriving its legitimacy upon its commitment to morality as it remain as the best institutional arrangement to reconcile the individualist and universal interests of humans and institutions.
Marxist political parties fail to liberate the state and civil society from this predicament when they deviate from the class struggle–not national identity–as the motor of history. Marxist in practice ignored the deep interconnectedness between nationalist and capitalist oppressions, and they were complicit with the oppression within the nations by the nationalist forces. They were insensitive to the importance of peoples’ cultural identities (non-class identities e.g. race and gender) based on their sense of belonging to a given geographical space. Certainly, these Marxist lack the intellectual sophistication of Fredric Engels and Vldimir Lenin in dealing with the questions of nationality and right to self-determination. In general, the Marxist approaches to religion were too simplistic and dogmatic, and dismissive of the positive role religion could play as a moral force.

My point here is not that morality and religion should be separated as opined by the thinkers like Spencer, Bertrand Russel, Huxley and Charles Bougies. Rather under the present conditions religion loses its capacity to be a moral force. Religious consciousness, the way it is intertwined with national identity and sovereignty, and relationship between the state and society, play a critical role in how people make sense of the domestic vs. international inquiry and their respective implications for transitional justice. Religion also fails to guide the state toward righteous ends because its economic and political relationships with the state consist of these exclusive and discriminatory economic, political, and cultural ideologies. The government and its politicians preoccupation with the domestic vs. the international foreign elements of the inquiry seems to blind the public attention to the reasons for the shift from ‘international investigation’ to ‘hybrid investigation’ and ‘domestic investigation’-shift that reflects how the UNHRC, the international community (IC), the GOSL, and the TNA is scrambling to respond to the demands of the UNHRC.

Religion, when aligned with political notions of national history and sovereignty, inevitably becomes a tool for political ends, even the religions practices cannot disassociate from those political ends. Religion protects the highly racialized, discriminatory political, cultural, and territorial identities and boundaries of the state (e.g., Sihala Deepa as opposed to Dhamma Deepa), instead of subjecting these identities boundaries to the judgment of religious teachings. For these reasons, all religions everywhere, instead of being righteous, have become self-righteous and thus blind and averse to the pursuit of truth and justice find in their own religions. When economic and political bases of state and religion are indistinguishable, both state and religion come to conflict with cosmopolitan/universal ideals of morality.

Religion is failing to be a buffer against the politicization of the post war discourse of war heroes, human rights, and transitional justice. Religious establishments in Sri Lanka have not been at the forefront of advocating justice for victims of alleged war crimes and crimes against humanity. Although religion may lose its public appeal as a moral force or take a back seat, the state will not, because the public in the final analysis will hold the state as the guardian of morality by playing the role of harmonizing the wills of all citizens. The state has appropriated the moral power the religion has lost.

The constraints on state’s harmonizing role necessitate the global/supra national institutions such as International Criminal courts to make law impartial and judicious, hence separated from the politics of the states. This was a global response to counter many examples of “victors’ justice” that prevailed in the decisions of the legal bodies that were under the control of the state. Although the moral authority of the ICC is constituted by universal norms and values of justice and its promise to place people’s interests above the interests of the state, International Criminal Court (ICC) is formed by treaties between governments and its political authority still partly reside in the international state system. Thus the presence of the global institutions does not entirely relieve the state’s responsibility in upholding universal morality. The point relevant for Sri Lanka at this moment is that (not at all in the case of the ICC) the principle of complementarity is of utmost importance. The ICC, or any supranational institution, is a last resort if the domestic legal system has failed for a prolonged period of time.

To be continued…

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