By Basil Fernando –
The statement made by Mr. Mahinda Rajapaksa the former head of state in Sri Lanka, that ‘establishing the office of the Missing Persons is a betrayal of the armed forces’ is a statement unbecoming of a former head of the state and a prominent political leader in Sri Lanka. What it directly says is that enforced disappearances which is an internationally recognised heinous crime should not be investigated in Sri Lanka because the culprits may involve some members of the armed forces. It is one of the basic norms of a civilised society that crimes must be investigated, irrespective of whoever the suspects are. A civilised legal system could exist only on the acceptance of this fundamental norm that all crimes should be prosecuted. Prosecution of a crime is an imperative duty of the state. No state can make any exception to this rule except at the cost of undermining its own authority.
The period of rule by Mr Rajapaksa was known for relativizing the norms relating to prosecution of crimes. The cases of assassinations like that of the former Sunday Leader Editor, Lasantha Wickrematunge, the disappearance of Prageeth Ekneligoda, and others as well as attacks on journalists including the brutal attack on Poddala Jayantha, are but a few instances that demonstrate the willingness on the part of the head of the state to approve a selective approach to the prosecutions relating to crimes. A dual policy of – on the one hand encouragement of the commission of crimes and on the other, preventing investigations and prosecutions of crime – became a glaring feature of those dark times.
It may be the intention of Mr. Rajapaksa in making this statement to appear as the saviour of the armed forces. However, the public impression that is created by this statement is seriously damaging to the image of the armed forces. It quite implies that the armed forces having being involved in the commission of enforced disappearances, and that these crimes should not be investigated. The armed forces could be involved in the commission of enforced disappearances only in one of two ways. One is, either some officers have violated the military law and discipline and on their own committed some heinous crimes such as commission of enforced disappearances. If this be the case, there is no reason at all for such officers to be protected. Those who commit crimes against the law and military orders do not deserve protection and in fact the military would be better off for prosecuting such offenders. However, the second and much worse scenario is, if the head of the state has in fact authorised the commission of such crimes. In which case, there is a much more serious problem of commission of crime against humanity – which is one of the gravest crimes under international law. If, Mr Rajapaksa is perhaps thinking of such a situation, then he should come out clean about his own involvement in a crime, rather than try to implicate the armed forces. However, our concern at the moment is that nobody in Sri Lanka should be allowed to say that any crime – whatever the crime may be, should not be investigated and prosecuted. If as a country we do not take that position, then we cannot survive as an organised society. The prime strategy for the protection of an organised society is the prosecution of crimes. And this fundamental position should be reasserted if we are to get back to reconstructing a society on the basis of rule of law and to ensure good governance. The statement made by Mr Rajapaksa is a blatant attack on the principles of rule of law and of good governance. As such, this statement should be condemned and the implications of such statements should be explained to the people so that their own security as an organized nation based on the capacity to protect law could be preserved against all assaults.