By Kopalasingam Sritharan and Rajan Hoole –

In the crucial presidential election of January 2015 which led to the new Government’s joint sponsorship of the historic UNHRC Resolution, gives us a unique opportunity to put behind us practices, mores and preoccupation with narrow ideologies that turned the attainment of Independence in 1948 into a hell of mediocrity, bloodshed and corruption.

Confronting our violent past with honesty, embarking on a truthful retelling of the ethnic conflict, acknowledging the crimes committed by parties to the armed conflict, providing closure and justice for the victims are inescapable tasks if Lanka is to herald an era of democratic governance, just peace, and equality for all peoples of this country. Indeed, these were precisely the messages behind which the majority of Sri Lankans united – twice within the lapse of eight months. There can be no excuse for yet another missed opportunity.

Rejection of Universal Norms and Demise of the Rule of Law

The French Revolution of 1789, driven by the insolvency of Louis XVI’s government, went through phases of war and a reign of terror, crashed once more on the rock of more calamitous insolvency, giving way to the rise of Napoleon in 1799; who in turn fared no better with the economy. For all it cost the French people in lives and destruction, Immanuel Kant deemed the Revolution a milestone in the progress of mankind. Its Declaration of the Rights of Man left with us the rallying cry: Liberty – Equality – Fraternity, which has echoed far and wide ever since. In France it meant the culmination of ideas of the Age of Enlightenment, where the state became secular and the Calvinist (Huguenot) and Jewish minorities realised equality.

The first article in the French Declaration: viz:- “Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good”, comprises today the cornerstone of human rights and humanitarian law. What we in Lanka wished to be after Independence in 1948 was ours to fashion. By rushing into the Citizenship Acts we ensured that Liberty – Equality – Fraternity had little resonance in our intellectual or political life ever since. The Acts which de-citizenised and disenfranchised the migrant Indian labour on our estates, who were key to our solvency, was contrary to natural justice and international law as the late Senator Somasundaram Nadesan ably demonstrated. We became a law unto ourselves. It is this position that the Privy Council sanctioned in its 1953 judgment on disenfranchisement by shielding the impugned Acts under the rubric of sovereign equality of states – states that delude themselves into believing that they are immune to all checks. The abysmal standard of debate among the proponents of the Citizenship Acts in singling out an exploited community for abuse (e.g. as immoral carriers of disease), and the personalities involved (including the vast majority of Tamil and Muslim MPs), made it clear that we had moved from colonialism to feudalism.

As the French did during the Revolution, we have suffered enormously, but little was done to change our two extreme nationalist camps remaining the controllers of our discourse, awaiting the next crisis to unloose their incendiary genius. One portent of hope is that despite the Government’s local ambivalence, the recent UNHRC report and resolution has been hailed by many leading public figures across our ethnic divisions as an opportunity to reconcile and move decisively towards the rule of law and greater justice for all peoples.

The demise of the rule of law is evident in the scandalously sluggish pace at which the wheels of justice turn in Lanka*. That has to do with our rejection of time-tested international norms. Consequently decision-makers at all levels, from the judiciary to the administration and our universities, rather than be guided by the rules, await the signal from upstairs – the sure road to burgeoning delay and administrative collapse.

A common symptom is the absence of recourse to justice in blatant instances of abuse of power in our institutions that should have been rectified quickly at a low level. The delay, expense and uncertainty in going to the Supreme Court or the Court of Appeal are unmanageable for most victims, especially the young. We tried to confront the world with our appalling standards under the illusion that mere sovereignty will protect us. The world has hit back with a friendly warning that we dare not ignore.

Our courts will gain the maturity to impart justice impartially only when we command the openness to accept and incorporate precedents from the history of jurisprudence whose effects we have seen to be benignant. To go back to the Citizenship Acts, we have the precedent of 1608 AD from English Common Law, by which our sovereigns in the relevant period, George VI and Elizabeth II, were bound. Lord Edward Coke recorded in his widely respected Reports:

“Everyone born within the dominions of the King of England, whether here or in his colonies or dependencies, being under the protection of – therefore, according to our common law, owes allegiance to – the King and is subject to all the duties and entitled to enjoy all the rights and liberties of an Englishman.” (Calvin’s case)

This judgment in Calvin’s case was in respect of the rights in England of James I’s Scottish subjects. The case was argued using examples spread widely over time and space. A clinching argument appealing to Natural Law was taken from the Book of Acts (circa 50 AD): “So as hereby it is manifest that Paul was a Jew, born at Tarsus in Cilicia, in Asia Minor; and yet being born under the obedience of the Roman Emperor, he was by birth a citizen of Rome in Italy in Europe, that is, capable of and inheritable to all privileges and immunities of that city.”

Again from one of Coke’s judgments: “…when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such Act to be void.” This would also be the position under Roman Dutch Law, which is the operative law in Lanka. One wonders how the Privy Council, which advises the Queen, sanctioned the Citizenship Acts which turned an entire community of the Monarch’s subjects, to whom protection was owed, into ‘stateless persons’ with no rights or claims anywhere.

Impunity and Sovereignty

The Supreme Court of Ceylon in endorsing the Citizenship Acts acted under extremely bad precedents that went far to discredit the rule of law. Once we decided that it is only our ‘sovereign’ standards that matter and no one has any right to inhibit our folly, communal violence, blessed and even actively supported by our leaders, had no checks or recourse. Justice Sansoni’s report on the 1977 violence gave a harrowing description of the involvement of some senior police officers, but deliberately shielded the highest by failing to take cognizance of the evidence about the incendiary radio message from Jaffna Police Station which claimed fictitiously that Sinhalese and Naga Vihare were under attack in Jaffna. Far worse violence in July 1983 was denied even the benefit of an inquiry.

Impunity of this kind cost the country dearly. There is an old precedent to the 2009 White Flag case – the July 1983 Welikade Prison Massacres. Killing prisoners Kuttimani and Thangathurai was the Government’s gift to Prabhakaran of unchallenged leadership of the Tamil militancy. Those who knew Kuttimani and Thangathurai assert that they were the only two persons who could have curbed Prabhakaran and were moderate enough not to impose a long-drawn and fatally destructive war on the community.

We little dreamt that the cruelties war imposed on civilians in Vietnam and Cambodia would soon be our lot. From the 1980s, cameras and eye-witnesses have captured similar scenes in Lanka and even worse of breast-feeding mothers being ripped by shrapnel, entire families bombed in bunkers and the weakest in rural villages brutally hacked. No community can claim innocence. If we do not want this to happen ever again, we will only do ourselves a favour by inviting judges and investigators of known integrity without reserve to help us to deliver a measure of justice that is owed to the victims. Our own record is hopelessly tarnished.

In the massacre of 27 Tamil inmates of Bindunuwewa rehabilitation centre by a politically instigated mob in October 2000, while armed police stood by, the High Court brought shaky convictions against five persons including two police officers. The Supreme Court threw these out in May 2005. Testimony from senior journalists of high level instigation involving a leading provincial politician, points to the purposeful incompetence of the entire justice machinery.

The Chief Justice’s judgment of 15th September 2006 on the appeal under the International Covenant of Civil and Political Rights by PTA detainee Singarasa highlighted Sri Lanka’s cavalier disregard for the Covenant its President had acceded to. He said ‘rights under the Covenant are not rights under the law of Sri Lanka’, at a time the UN’s role was crucial for us.
Since the sovereignty of a state is created and sustained by its people as an instrument for their commonweal, justifying and masking the state’s abuse of its citizens employing a flawed understanding of sovereignty, is disingenuous and dangerous.

Commission of Inquiry: Failing the Victims and Imperilling the Witnesses

When the war began in 2006, the ire of the international community was directed against the LTTE for ditching Norway’s initiative. What brought the change were the highly repulsive acts of impunity by the Defence Ministry, in particular the killing of five students in Trincomalee and the ACF massacre of aid workers. The Government agreed to a Commission of Inquiry (CoI) incorporating an International Independent Group of Eminent Persons. Witnesses in 2007 first testified at closed door sessions with the CoI’s team of police investigators present. From then on good witnesses were systematically intimidated. Police officer Shanmugaraja, a witness to the ACF massacre, was warned before the closed door session that if he let the side down his family would suffer. He played safe before the CoI.

Rev. Sornarajah, Methodist minister in Mutur, was confident at the 2007 closed door session and was identified an excellent witness. He had met the ACF victims about 9.00 AM few hours before the massacre and his testimony discredited the JMO’s timing as early morning. The Police worked on him and he came for the commission hearing in May 2008, a broken man, and was intimidated again during the tea break. Back in the hearing, he wept saying he feared for his life. Commissioner Dr. Nesiah rose and escorted him out to reassure him. The counsel for the Army photographed this and demanded the sacking of Nesiah for interfering with a witness and this was done.

The IIGEP team arranged asylum for witnesses under threat including Shanmugaraja and Sornaraja. On 14th July 2009 the Chairman of the CoI went public alluding to LTTE as the killers and exonerated the State. As though this did not carry conviction, days later the counsel for the Army got the Police to summon the families of ACF victims to Fort Frederick, Trincomalee, and got them to sign letters of gratitude in English to the President blaming the LTTE for the killings.

Troublingly, the DSG directing the hearings, instead of being impartial, introduced PC Shamugaraja’s crucial affidavit as coming from one who found asylum in Australia, contradicting his earlier testimony before the closed door session. The DSG could hardly have been ignorant of intimidation by the Police at the CoI itself. An alleged excerpt in the Press from the Commission’s unpublished report on the ACF case attacking Rev. Sornarajah read like an anonymous petition: “One wonders whether all these “theatrics” and uproar were to facilitate his seeking asylum.” This was not disowned by the CoI. Crude intimidation of witnesses was not isolated. The CoI would have known of above half a dozen instances including two fatalities.

The CoI fiasco gave no comfort to the Government. It had shown no sympathy for witnesses testifying at immense risk. Victims gained nothing from the process. The Commission of Inquiry demonstrates that spurious accountability mechanisms conceived to breast the geopolitical tides – to buy time, divert attention, and hoodwink the international community – largely serve to obfuscate the truth and pile further suffering on the victims and the witnesses.

In order that we are not held hostage to extremism, the truth must be brought out and digested by the people. We already see that the UNHRC findings have silenced many apologists for the LTTE. The government’s strategy of marketing the UNHRC resolution to the Sinhalese as a ‘victory’ by placing a spin on its contents is bound to backfire in the long run. While the UNHRC resolution’s recommendation of international participation in the judicial process divides Sinhalese opinion, there is little popular resistance to the idea that human rights abuses need addressing. Given this context, instead of trying to stage-manage the Sinhalaese extremists, the government must convince its constituencies of the need for accountability and truth telling. Conflicting statements about the nature of the accountability process will undermine its credibility and victims’ confidence in it.

In order to avoid pointless half measures, it is important to understand that it is our failure of integrity that resulted in the recent UNHRC resolution. The Government’s history of blundering disingenuousness led over time to the denouement at Geneva. It is of no use pretending that our institutions are other than feudal or that character and independence are held in high regard, while in fact signals from above are the very staple of our officialdom. Our law enforcement institutions are too steeped in majoritarian nationalist chauvinism and hardly command the trust of minorities. Once we had built a firm place for the rule of law, we may advance well-founded motions against our bête noirs, the US, Britain and India, at the UNHRC and be taken seriously.

A thorough implementation of the UNHRC resolution will not only take us forward in the journey towards a just peace but also reinvigorate our judicial and law enforcement institutions. In that, the resolution is not just about Tamils: it is about pulling Sri Lanka out of its fatal decadence that survives and thrives from one election to the next.

*Basil Fernando, Sense and Nonsense on Judicial Matters