By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

As family members of a murdered ruling party politician travelled to Geneva this week to lay their case for denial of justice before the United Nations Human Rights Council, the ironies are palpable, almost painful. Are we to see in coming months, an unfairly impeached Chief Justice, persecuted Cabinet Ministers and scores of once loyal supporters of this administration following in their wake?

Good enough for some but not for others?

These are questions that demand reflectively serious answers. True enough, the hysterical cries of Sinhalese ultranationalists that to complain or to state a particular fact before the United Nations in Geneva was unpatriotic and near traitorous, had scarcely any sincerity to it. After all, it was none other than that ardent patron of the Sinhala Buddhist State, President Mahinda Rajapaksa himself who, as an opposition politician in the nineteen eighties with no tinge of the ruthlessly authoritarian ruler that he was to become, went to Geneva and lobbied the cause of the Sinhala ‘disappeared’ in the corridors of the United Nations. Indeed, as the Sri Lanka law reports would testify to, he was bold enough at that time to file a fundamental rights complaint before a Supreme Court when he was stopped in his tracks at the Katunayake International Airport.

This by the way, was a Court which was still untouched by the savagery that were to be later inflicted on it by his own administration with its inquisition, impeachment and ongoing witch hunt of the 43^rd Chief Justice of Sri Lanka.

At that time, the United Nations was good enough for the ‘disappeared’ of the majority community. And the question may well be as to what is the substantive distinction between using the United Nations then and using it now for current victims? Does the distinction of traitor and patriot depend on the race of nationality of the people whose cause one is espousing? Or does that depend on the nature of the administration that is in power at a particular time?

Current abuses despite party divisions

So, to take the cases of the tortured and the ‘disappeared’ to Geneva during the days of the United National Party regime was perfectly acceptable but to engage in exactly that same action during the period of the Rajapaksa Presidency is somehow different? Is that what we are supposed to believe? But only a fool or a knave can maintain that distinction. To argue otherwise is to be disingenuous which is why perhaps these very same ultra-nationalists get vastly uncomfortable and start fidgeting in their incongruous Western suits when President Rajapaksa’s human rights crusading, (and pleasanter), days emerge in random conversations.

But even during those times, eyebrows would certainly have been raised and considerable shock occasioned if the family of a prominent ruling party politician had made the trip to Geneva. In that sense, this Government’s abusive reign is regardless of party political divisions. The one rule is unquestioning obedience to the ruling family. Violate that cardinal principle and it does not matter if your record in that very political party has been that of impeccable loyalty to the party itself. To all intents and purposes therefore, the Sri Lanka Freedom Party does not exist anymore. Neither does the UPFA as we saw very well during the impeachment of the 43^rd Chief Justice of Sri Lanka when remonstrations by coalition partners did not stop the Government from throwing the head of the judiciary out, using political thuggery and finally military muscle. What does exist is only one family, not one party or a coalition. That is unquestionable.

Voluntarily reducing ourselves to the scrutiny of others

But the larger point here is that the forums of the United Nations are not supposed to be duplicate political or legal bodies for the resolving of each and every question of law and governance within the territorial boundaries of a State.

Essentially, they are advisory bodies that are supposed to guide countries that are parties to the United Nation in their conformity to international obligations. And there is a strong element of caution that these bodies observe when commenting on the performance or lack thereof by a particular country. For example, when the United Nations Human Rights Committee comprising of jurists from around the world, deliberates on an individual communication submitted to the Committee complaining that a particular action or a particular local law violates the provisions of the Covenant, the conclusions of the Committee are phrased as ‘Communications of Views’ not as binding decisions on a particular State.

States are free to adopt or to brush aside these Views as they please. The rider is that if there is a pattern in the flouting of international law norms, then the State concerned will, at some point or the other, be called upon to explain and justify why that is the case. But on no account are these members of the Committee sitting as judges when they look into these issues.  This was a distinction that was ignored by former Chief Justice Sarath Silva in 2006 when in the now infamous Singarasa Case (S.C. SpL (LA) No. 182/99, SCM15.09.2006) when he came to the conclusion that Sri Lanka’s ratification of the First Optional Protocol to the ICCPR which allows individual communications to be submitted to the Committee involved an exercise of judicial power by the Committee and was therefore unconstitutional.

Disastrous course of action

This ratification of the Protocol was effected during the shrewd and wise policy making times of former Foreign Affairs Minister, the late Lakshman Kadirgamar who was one of Sri Lanka’s staunchest advocates in the international arena, adept at the art of meeting unjustified international interventions with impeccable skill but yet cognizant of the need to be part of the community of nations. The ratification was on the rationale that Sri Lanka was open to measured and friendly advice from outside its borders and would respond to such advice.

Alas, the course that Sri Lanka followed since then was heedlessly disastrous, be it the administrations of Chandrika Kumaratunga, Ranil Wickremesinghe and Mahinda Rajapaksa, commencing from the ignoring of each and every Communications of Views of the Committee to the Singarasa case which thrust the country’s legal system into the harsh spotlight of international attention. Ultimately, the impeachment of the 43^rd Chief Justice under this Presidency against all norms of fair trial and due process has centered the entre debate on Sri Lanka’s judiciary and the failure of the Rule of Law, reducing us to the state of a pariah nation where no justice is available internally but we are compelled to rush elsewhere and therein, to be pushed and prodded at the will of others.

Now the laughing stock of the world

So the sagacity that was shown earlier by reasoned policy makers have now been thrown to the winds. We treat bodies like the United Nations Human Rights Committee with contempt, either react with bullying and thuggery when resolutions militating against this government are sought to be passed in the political arm of the United Nations, the Council or we bluster and swagger with lies that get to be more diabolical at each point.

Thus, this week’s assurances by government representatives before the Council that the killings of five Trincomalee students in 2006 has been directed for a non-summary inquiry and that the Attorney General is reviewing the equally gruesome killings of seventeen aid workers in Mutur that same year only invites skepticism if not outright disbelief. As the family members of these victims along with family members of Bharatha Lakshman Premachandra and Prageeth Ekneligoda plead for justice in the international forum, their cause is the same.

What is this outrage that we have allowed to be inflicted on ourselves so as to make us the virtual laughing stock of the world? How did a once functional, (though admittedly flawed), democracy in the Commonwealth of nations end up in this pitiable state?