By Kishali Pinto Jayawardena –

Kishali Pinto Jayawardena

A careful and sober reading of the Report of Sri Lanka’s Lessons Learnt and Reconciliation Commission (LLRC) reveals its many complexities when weighed against the current political ethos. Gradually, the responses to this Report are bound to be far more measured rather than starkly divided between those who unhesitatingly support its contents and those who, just as unequivocally, dismiss the same.

Bringing this administration to task

For the moment, let us look at the perception on the part of some that the LLRC Report safeguards the government from basic questions of accountability towards its citizens during the last stages of the conflict.  This perception stems from the LLRC’s cautious detailing of a limited number of incidents in which errant individuals ‘may have been implicated but without intent’, rather than rigorously questioning whether these incidents were a part of state policy, deliberately planned and cold bloodedly executed. And true, the political rationale on which the LLRC was created on 15^th May 2010 was linked to international pressure exerted on the government, rather than based on genuine intentions of fostering reconciliation.

However, with changing dynamics nationally as well as internationally, this Commission was thrust into a position, perhaps least anticipated at the start, of being entreated to call off the wolf from the gates, (metaphorically speaking), by the saner segments of Sri Lankan society. Its response to this call has resulted in not-so-subtle markers in its Report which if hearkened to, will undermine the fundamental power base of this administration and bring it to a much needed reckoning of the Rule of Law and with time, even in respect of war time accountability.

So the importance of this Report lies in its context and in the extreme expectations that have been placed on it nationally, regionally and internationally. Such intense scrutiny was not evidenced in regard to previous Commissions of Inquiry, including the 2006 Udalagama Commission which was prematurely and ignominiously wound up. The very fact that the LLRC Report was released in full to the public, unlike the Udalagama Report, testifies to this fundamental difference in background. And to be fair, the LLRC steered clear of much of the pitfalls that eventually doomed the Udalagama Commission, in particular avoiding its proceedings being dominated by a disastrous combination of manipulative state and non-state lawyers.

The government itself may be slowly awakening to this unpalatable fact and perhaps it will not be long before we see its spin doctors trying to whittle down the LLRC Report.

Immediately implementable recommendations

As was observed in these column spaces previously, the LLRC has strongly urged the implementation of the Udalagama Commission’s recommendations on the extra judicial killings of seventeen Tamil and Muslim aid workers in Mutur in August 2006 and five Tamil students in Trincomalee in January of that same year. To give full effect to this recommendation, the Udalagama Commission Report itself needs to be released.  More than most, these two cases expose the fault lines in Sri Lanka’s justice system in respect of investigations, prosecutions (including the failure of an independent witness protection programme) and adjudication. These examples illustrate why a 17^th Amendment to the Constitution continues to be so crucial. These are old cases and unlike in the case of war time abuse, cannot be delayed on the basis that more time is needed for investigation and collection of data.  If the government is called to account in these two cases with the same determination which marked the eventual successful prosecution of the murderers of Krishanthi Kumaraswamy (1996) at least the first step will be taken on the road to accountability. Necessarily these steps need to be incremental rather than instant.

There are other markers in the Report that can be identified as immediately implementable. These include the strict monitoring of safeguards in respect of arrest and detention, several strictures on abductions, redressing the plight of detained persons, the disarming of persons carrying un-authorised weapons along with their prosecution and the enactment of a right to information law. Even if the Commission’s interim recommendations have not yet been implemented, it would not be easy to renege from the firm Presidential promise that the final recommendations will be implemented in full.

Between Scylla and Charybdis

Yet the problem for the government is that implementing the LLRC’s recommendations in respect of the Rule of Law would inevitably involve undermining its essential power base at several crucial points. Given the nature of the political leadership that we have now, this will be difficult, thus putting it classically between Scylla and Charybdis, even if the remarkably adept prowess of this Presidency in wriggling out of tight corners is conceded.

The government itself may be slowly awakening to this unpalatable fact and perhaps it will not be long before we see its spin doctors trying to whittle down the LLRC Report. Newspaper reports this week cite the Jathika Hela Urumaya (JHU) alleging that the LLRC has not taken into account the many assassinations carried out by the Liberation Tigers of Tamil Eelam between 1972 and 2009. It is also alleged that the LLRC had exceeded its mandate by referring to an ‘ethnic problem’ and by recommending ‘devolution.’ These allegations are misconceived. The JHU needs to be educated regarding the precise mandate of the Commission which covered only the events between February 2002 and May 2009. Its basis for alleging that the LLRC exceeded its mandate is also unclear. Ironically, the LLRC’s recommendations regarding devolution tepidly focus on ‘greater peoples’ participation at the grass roots level’ whatever that may mean. Yet, the manner in which these allegations are framed by the JHU is telling. This administration, after all, is known, for ‘floating’ such signals to test the waters as it were, before it subverts processes which appear to be politically unpleasant.

A collective voice of reason

In an extremely divided society, heightened by mutual suspicion and lacking a credible opposition, the LLRC Report presents the best opportunity so far, for a collective voice of reason to emerge out of the chaos. This voice needs to come, not out of the middle class elite who occasionally grumble about the evils of the regime but from the wider public and rural civic action groups comprising village elders, school teachers and retired public servants who confront the breakdown of the Rule of Law almost daily and suffer from it unceasingly. They need to grasp the contents of this Report in full. Sri Lanka’s long history of failed Commissions of Inquiry may yet be challenged with sufficient people pressure.

The issues that the LLRC raises are not unfamiliar to the Sinhalese living in the South (broadly speaking) whose own tales of horror under a different political administration were documented in much the same way by the 1994 and 1998 Disappearances Commissions. These horrors remain un-addressed and mothers sometimes still trek to Colombo to ascertain the fate of a habeas corpus application lodged twenty years back in respect of a missing child. Synergy must be created between these two processes in acknowledging a common and longstanding problem with impunity.

Sensibly critiquing the LLRC report is necessary, even imperative. Debunking it wholesale is however shortsighted and, in the long run, dangerous. International pressure is well and good when confronting a despotic administration blind to basic norms of governance. But this pressure must always be applied with caution so as to prevent the political leadership skillfully using such pressure for its own continuance. The key to changing Sri Lanka’s pitiless non-accountability culture is in garnering public support not merely from the outside but from the inside. Certainly the LLRC’s recommendations can be usefully wielded in order to reach out for a bolder constitutional ideal that insists on the freeing of public and judicial office from political control as well as the rejection of an Executive Presidency clearly placed above the Rule of Law.

Perhaps the New Year will see the tentative beginnings of such a strategy.