By Rajiva Wijesinha –

Prof Rajiva Wijesinha

How Continuing Distrust Stands In The Way Of Reconciliation

I was told recently by a diplomat that, amongst the worries in connection with the appointment of Mohan Pieris as Chief Justice, was the feeling that he had been put there to subvert any judicial process that might be implemented with regard to War Crimes. This struck me as ridiculous.

But it was also indicative of the deep distrust and lack of logic that bedevil our relations with the world. It is based on an obsession with War Crimes that is a creation of two equally pernicious initiatives. The first is the determination of the LTTE rump to avenge the destruction of their hero and the terrorist separatist agenda. The second is the cynical efforts of some Western politicians to use the charge to exert pressure on us.

As the LLRC report indicates, and all actual evidence suggests, if there were abuses, they were committed by individuals, and should and would be dealt with by military courts. Though it is claimed that we have delayed unduly in this regard, that is absurd, and those who complain know this perfectly well, given how long it has taken the British and the Americans to deal with abuses by their personnel. Of course our failure to act with regard to what happened in Trincomalee is another question, and our delay there is unacceptable, but that had nothing to do with the war, and did not involve the military.

Where we are at fault is in not publicizing what we are doing. We should learn from what the Americans and the British did, and perhaps even emulate them in acquitting everyone except one suitable scapegoat – and the Americans avoided doing even that in the celebrated case of the team that cut off the thumbs of their victims.

I do not however see this as hypocrisy. In the first place, securing convictions is difficult when standards of proof are high, as criminal cases demand. Secondly, the point is to make it clear that abuses are unacceptable, so as to limit their occurrence.

For all that what we need is army action, with no intervention by the Supreme Court. The notion therefore that Mohan Pieris was made Chief Justice to subvert action in the Courts is totally illogical. It is also misplaced in that there seem clear indications that others were considered for the post, and the previous Attorney General, who is reported to have refused the job, was the Chairman of the LLRC which identified abuses they thought required further inquiry.

But this type of illogicality is not confined to foreigners. One argument I have heard for the determination to impeach the Chief Justice is that she was part of an international conspiracy to subvert the developmental projects of the Sri Lankan government, and indeed the government itself.

That too is an absurd notion. While clearly elements in government were not pleased when judgment was initially delivered on the Divineguma Bill, it has since been recognized that the strictures made were perfectly reasonable, and the Court made it clear that the Bill could be passed following procedural proprieties, and / or with modifications, and /or with a two thirds majority. Indeed some Cabinet Ministers have noted that the insistence on greater Cabinet responsibility was a boon.

Conversely, it should also be recognized that the recalcitrance of the Chief Justice, as manifested not just in her refusal to attend a meeting with the President, but in the extravagant statement issued by the Judicial Services Commission, followed developments that sufficiently explain her attitude without assuming international interventions. One view is that the charges against her husband upset her. The more generous view is that the incidents in Mannar, with allegations of improper behavior by a politician and a spate of confrontational demonstrations, made her unduly conscious of the status of the judiciary.

But unfortunately we all prefer to think of conspiracies rather than look at facts rationally and make allowances for frail human nature. So we have yet another example of the corrosive distrust that bedevils our efforts to move forward.