By M A Sumanthiran –
The discovery of skeletal remains of what is reported to be more than a hundred people has dominated the press for some time. It is now clear that the mass graves were of victims of summary executions during the second JVP insurrection. It is also clear that the appointment of a Presidential Commission of Inquiry to probe these crimes – which are demonstrable crimes against humanity – is to protect those responsible for these crimes to begin with.
Presidential Commissions of Inquiry have often been cynically utilized to satisfy public and international demands for action, whilst sabotaging the prospect of justice. The President who has complete control over a Commission’s mandate, composition, funding, tenure and staff effectively dominates Presidential Commissions. The President may choose not to release Commission reports to the public at all. The long list of Presidential Commissions that have yielded no tangible results are matched by an equally long list of Commission reports that have never been made public. The Udalagama Commission into seventeen serious human rights abuses was discontinued in June 2009, while the Commission’s report has never been made public. The Mahanama Tillekeratne Commission’s report on enforced disappearances has also disappeared. Even where the President releases a report, he is not bound to take any action on the Commission’s recommendations. One may justifiably ask, what then is the purpose of a Commission? In the seminal Indian Supreme Court judgment of Sanjiv Kumar vs. Haryana, the Court expressed its view on Commissions of Inquiry. It said:
“The flaw with the commissions of Inquiry, as revealed by experience, is that they do not have enough teeth and for their functioning they have to depend on the State’s assistance. Commissions of Inquiry remain pending for unreasonable length of time. The reports submitted do not bind the State and in spite of transparency and public hearings which the commissions often hold, at times with fanfare, the reports hardly serve any purpose….We feel, Commissions of India are more suited for Inquiring into such matters of public importance where the purpose is to find out truth so as to learn lessons for future and devise policies or frame legislation to avoid recurrence of lapses. Such Commissions do not suitably serve the object of punishing the guilty.”[emphasis added]
What then are the lessons from Matale? The first is that the culture of impunity in Sri Lanka needs to broken, and unless it is broken, the atrocities of the past will recur. These atrocities will not and cannot victimize one ethnic group and not the other. Matale and Mullivaikkal are inextricable linked, just as Black July and Pepiliyana are linked. They are all characterized by the unwillingness and inability of the state’s institutions to protect its own citizens. That simple reality – that the state cannot protect its own – is a staggering attack on the mindless invocation of ‘sovereignty’ by the government as a substitute for argument, when it faces criticism of its human rights record. The breakdown of the rule of law may victimize Tamils disproportionately, but other communities cannot escape its effects. I have often said that if we are one, then we will also suffer as one. To break this culture of impunity, we must ensure truth, justice and reparation for victims. That is why the Tamil people’s movement for truth and justice in the aftermath of 2009 will benefit people of all communities, and must be supported by those who envision a different future for this country. That is also why we must all unhesitatingly call for truth and justice for the victims for Matale.
Secondly, Matale reminds us why we simply cannot tell victims of atrocities to forget the past and move on. To expect mothers and wives to forget their sons and husbands who never came home is to perpetuate the cruel apathy that enabled those atrocities in the first place. To deal genuinely with the past, victims and their relatives must be given a space to discover closure. That space is both private and public. It is private because grief that stems from loss, is an intense personal struggle, ranging from shock and denial to anger and acceptance. But it is also public because victims of state and institutionalized violence can never achieve closure until the institutions responsible for their loss are transformed and called to account. The oppressive militarization of the North and East – where relatives are denied the right to mourn their dead at kovils and churches – will not bring closure. It will merely delay the date of reckoning. That is why it is important the institutions of state – particularly the police and the military – be reformed.
Thirdly, Matale teaches us that atrocity crimes will never remain hidden. We have all witnessed the shocking videos and pictures that have emerged from the last stages of the war. Those images were not captured with the intention of public dissemination, but millions have now seen them. In the era of worldwide connectivity and new media, the rules of the game have changed. Today, we are witnessing international and domestic trials for atrocity crimes on a scale that was unimaginable two decades ago. From the military dictators of Latin America to Charles Taylor of Liberia and Khieu Samphan of Cambodia; and from Milosevic to the Chadian dictator Hissene Habre and former President Laurent Gbagbo of Cote d’Ivoire, formerly invincible leaders of countries have been forced to stand trial for their crimes. Going forward, if Sri Lanka is to avert the present danger of international isolation, it must not be seen to provide safe-harbour for wanted criminals.
Thus, there are many reasons – institutional, moral, economic and geostrategic – for Sri Lanka to begin pursuing accountability for atrocity crimes committed in the past. Most importantly, however, in dealing with the past, we will discover who we really are. For those of us who believe that a common Sri Lankan identity which recognizes the unique national identities of the island’s people groups is a good idea, constructing that identity in a meaningful way should also mean that we understand ourselves. Understanding the evil and brutality that have punctuated our disputes over political power is a good place to start.
*The author, M A Sumanthiran(B.Sc, LL.M) is a senior practicing lawyer, Constitutional and Public Law expert and a Member of Parliament through the Tamil National Alliance (TNA).