By Basil Fernando –
It has been 33 years since Black July, 1983. These 33 years have been part of our lifetime. We have witnessed not only the horrendously criminal acts of July 1983, but also what happened by way of justice after those serious crimes.
I would like to illustrate my point in terms of one single event: the Welikada prison massacre. This was without a doubt an act that falls within the definition of crimes against humanity. What concerns me here are the procedures of the so-called inquiries which were held into this crime. Various inquiries were announced and undertaken, and some reports were published. What becomes quite prominently clear is that, during all these inquiries, some of the senior members of the Attorney General’s Department played a blatant role in sabotaging justice. The state, rather than using the occasion to get the message across that it did not condone such acts and that it stood for the defense of the absolute right to justice, in fact proved the very opposite.
What matters is not only the criminality of those who committed the crimes, but also that of those who orchestrated the crimes. Their motives could be understood when we recall that these prisoners were those who were standing in various inquiries and trials in the Colombo courts in relation to charges of terrorism. I was myself a witness to some of these trials, including the famous trial of Kuttimani. These trials were, naturally, attracting the attention of the public inside Sri Lanka and outside. One of the very purposes of an open trial is to open a whole matter to public scrutiny. The public have a right to observe criminal trials and the right to reach their own judgments, not only regarding the crimes but also the purposes and motives of all parties involved. Through such trials, the public learns about every aspect of public issues, represented by both the accused and the state. These particular trials also had a certain theatrical impact. For every hearing, the prisoners were brought with many security guards and in a convoy of vehicles. This was expensive. It also attracted the attention of society to the events taking place in the courts.
It appears that one of the main purposes of those who orchestrated the crimes at the prison in 1983 was to stop these trials becoming a public spectacle, and also to stop the public debate on these matters, which were taking place in and outside the country. Thus, in the attack on the prisoners there was also an attack on the very principle of open trials.
In the period that has followed the 1983 events, we have not seen any highly public trials like those relating to Kuttimani. Kuttimani’s trial also showed the manner in which judges looked into these cases, extricating themselves from the political aspects and purely concentrating on the legal examination of crimes, as they would do in any other criminal case. An exemplar is the manner in which Kuttimani’s trial was brought to an end by the great judge Tudor De Alwis. Before pronouncing his verdict, he rose from his bench – which was hardly ever done – and told the prisoner that when he, the judge, sat down he would have to carry out his obligations as a judge; however, he went on, he did not consider Kuttimani to be an ordinary prisoner. If, someday, the president was to use his prerogative to pardon Kuttimani, the judge would be one of the people who would be happy with that decision. Having said that, the judge sat at his bench and pronounced the accused guilty, and thereafter, the sentence that was to follow was the death sentence.
The killing of the prisoners was to stop all such demonstrations, not only of the accused and the prosecutors, but also of the judiciary, in showing their own views in the face of these problems. Through this attack on open trials, the people were denied of one of their basic rights, which was to be observers of such open trials and to make up their own minds about things of importance taking place in their societies.
The worst aspect was regarding the inquiries and their outcomes. The direct participation of senior state counsels was used to sabotage the inquiries. The manner in which the inquiries were carried out showed that the Sri Lankan state was not intent on delivering justice to these prisoners, treating them merely as ‘others’ without the right to justice. They were treated as a special category – terrorists –and even in the sphere of justice they were treated in that manner.
What was lost was the respect for justice as an absolute right. The Sri Lankan state did not demonstrate a will and capacity to uphold justice irrespective of whatever they thought of the accused.
The result was that everyone, citizens as well as those involved in justice institutions – including the judges -, saw that the Sri Lankan state would not treat the issue of justice in the way that it should be treated. They would not uphold justice irrespective of the consequences. The result not only affected the prisoner-victims in these cases, but also everyone who would come before the courts in Sri Lanka. No one could have absolute faith that the Sri Lankan state would do everything it has to do in order to ensure that the outcome of his or her case would be in terms of justice and justice alone.
It was this shaking of the faith in justice that should have been in the mind of the people who were dealing with the problem of reconciliation in the past few decades. The reconciliation is not only important to the victims of crimes, but also to the very structure of the state. When justice does not have the central place it should have within the structure of a state, there is a fundamental deficiency in that state. What the reconciliation process does is, among other things, restores the state structure back into what it should be, with a re-establishment of a firm capacity to uphold justice.
The Sri Lankan state today does not represent itself as capable and committed to upholding justice. That means that it cannot be a state as envisioned in a democratic state structure, one that is capable of upholding the rule of law. That endangers everyone, including the rulers themselves.
Under these circumstances it is not a surprise when the former president, Mahinda Rajapaksha, condemns attempts to inquire into enforced disappearances, claiming that that would be an attack, according to him, on the armed forces. Again, what we see is the idea that justice should be sacrificed whenever the state decides to do so. It is this danger that the government, the opposition and the civil society has not yet come to terms with. The fundamental consideration in dealing with reconciliation is to end this dangerous situation. In making a constitution, a primary concern should also be to undo every form of relativism regarding the administration of justice.
The crimes committed in 1983 and the denial of justice thereafter goes beyond the limits of common sense. However, Sri Lankan society as a whole has failed to realize this enormous imbalance, and thereby it keeps itself exposed to every kind of societal danger.