By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

As we await with breathtaking suspense the coming of yet another ‘procedural’ resolution in Geneva, there is a certain exquisite irony to the manner in which the Mahinda Rajapaksa Presidency has been able to run rings around its international critics so far.

Drastically undercutting the tone and tenor of LLRC report

So while the Government mouthed sweet nothings regarding the implementation of the LLRC recommendations on the one hand to the so-called international community, it deliberately and drastically undercut the very tone and tenor of the LLRC report at several levels.

Last week, this column commented on the report of the internal committee of the Army dismissing the LLRC recommendation that the Department of the Police should be delinked from the Ministry of Defence. The Army also dismissed the LLRC’s noting of civilian casualties during the intensity of war and attributed such deaths solely to the LTTE. We are now back to the old refrains of zero civilian casualties which the Government kept on parroting at the conclusion of the war even though some spokespersons adopted a more reasonable attitude later on when such claims were naturally enough, scorned.

The LLRC’s other recommendations have suffered a similar fate. Its strong call to the Government to make public the report of the 2006 Udalagama Commission of Inquiry, particularly in relation to the extra judicial killings of helpless students in Trincomalee (2006) and the executions of the seventeen aid workers in Mutur (2006) has also been dismissed.

Failure to exhibit restraint in governance

It was singularly symbolic that President Mahinda Rajapaksa chose to ‘celebrate’ the Independence Day at Trincomalee and chose not to even refer to justice being ensured in regard to the killings of the Trincomalee students. If presidential leadership had been shown in pursuing these two cases, a powerful note of restraint would have been struck. But that was not to be.

In contrast, even with all its momentous failures of governance, the Chandrika Kumaratunge Presidency gave an unequivocal direction to the police investigators and the Attorney General’s Department to prosecute the rape and killing of Krishanthi Kumaraswamy (1996) as well as the subsequent deaths of her mother, her brother and a good Samaritan neighbor.

The evidence of Sinhalese witnesses played a major part in securing the convictions of the accused which were upheld on appeal. The trial was sensationalized when the main accused in the case, Corporal Rajapakse publicly disclosed details of hundreds of bodies which had been buried in the Jaffna peninsula following extrajudicial executions carried out by state military forces. These claims were not properly investigated even in the decades that followed. But to some extent, there was justice for at least Krishanthi and her family.

A travesty of justice

In contrast, what we have in the ACF and the Trincomalee killings is an utter travesty of justice. At one time, we had government spokespersons asserting in Geneva that the investigations into these cases would be reopened at the very same time that the Attorney General, when questioned by the media locally, roundly denied that any such instructions had been given to him.

Interestingly, the report of the United Nations High Commissioner for Human Rights (OHCHR) released in preparation for the upcoming Geneva sessions in relation to Human Rights Council resolution 19/2 cites that the Attorney General’s explanation for failure to proceed further with the cases was that the ‘quality of investigations and evidence collected had to date prevented him from proceeding with charges and prosecutions.’

According to the OHCHR report, the Government stated that the ‘Attorney General had advised the Inspector General of Police to conduct comprehensive investigations and had submitted to him the material collected by and the recommendations made by the previous commission of inquiry.’

And we proceed from the farcical to the absurd when we see that the OHCHR team had been assured that, ‘if adequate evidence was disclosed by the investigations, filing of indictment would be possible within a reasonable period thereafter.’ Aptly enough, the report observes that ‘it is now more than five years since the presidential commission of inquiry completed its report, and more than six years since the incidents.’

Certainly the Government’s response is a beautiful piece of circuitous reasoning. The problem itself is the lack of good investigations which is palpably the primary responsibility of the State and state agencies. If the proper investigations were carried out, a speedy prosecution would naturally follow. It is also quite obvious that there is absolutely no government will to carry out such investigation. Failure to do so is the responsibility of the State. One state agency blaming another and vice versa does not detract from that fact.

Adding insult to injury

These are the unpalatable though scarcely surprising realities that confront us. Adding insult to injury, we see aid agencies forking out huge sums of money through government line ministries for ventures supposedly in improvement of the quality of justice. With impeccable timing, one such venture was announced as recently as last month with the pious objective of securing implementation of the Rule of Law at the precise time that a politically motivated impeachment of the head of the judiciary was taking place in Parliament.

Another such striking example of absurdity was evidenced when Minister of Languages and Social Integration Vasudeva Nanayakkara told Sri Lanka’s 43^rd Chief Justice to go to hell on the floor of the House and refused permission to go ahead with the hosting of a conference of judicial officers on the basis that they were due to discuss the impeachment even as his ministry proudly boasted of implementing an access to justice project with the United Nations agencies.

A carrot and stick approach

In sum, this country’s hapless citizenry can only stand back and watch the cynical games that are being played. And the tactics employed by this country’s political leadership have really not been all that subtle. It has used the stick and carrot method of inducement with impeccable finesse even as it relies (with justifiable reason) on the essential disinterest of those pleading with Sri Lanka to improve its human rights record.

The Lessons Learnt and Reconciliation Commission (LLRC) was very much a part of this conscienceless inducement strategy even though the LLRC report was somewhat more hard hitting than what President Mahinda Rajapaksa would have wished. Even so, all what was needed was a little bit more creative imaginativeness to deal with this report which his administration has demonstrated very well.

We are therefore destined to suffer through more ineffective resolutions and mouthy debates this year even as the state of democracy in Sri Lanka takes one cruel beating after another.