By Jude Fernando –
“It is the power of hybridity that enables the colonized to challenge the ‘inherited boundaries of power and knowledge’. It breaks down the symmetry and duality of the self/Other, insider/outsider, and establishes alternative spaces of power and knowledge.” – Homi Bhabha
Sri Lankans as individuals and as members of diverse ethnic groups are cultural, economic, and political hybrids. They are receptive to hybridity in anything and everything they do, without much regard for its long-term consequences. The cherished ideals of national sovereignty, national identity and the political order Sri Lankans want to protect are all transnational hybrids. Why then, do they reject ‘hybridity’ when it comes to verifying the allegations regarding the violations of human rights abuses, war crimes, and crimes against humanity?
The stated intention of the UNHRC’s call for hybrid investigation is to “support the Government of Sri Lanka’s commitment to strengthen and safeguard the credibility of the processes of truth seeking, justice, reparations, and guarantees of non-recurrence by engaging in broad national consultations with the inclusion of victims and civil society, including non-governmental organizations, from all affected communities that will inform the design and implementation of these processes, drawing on international expertise, assistance and best practices.” Why then, is serious public dialogue about these positive benefits of a hybrid investigation absent? Why is the government more preoccupied with finding ways to convince the public that the investigation will have no foreign interferences? These are not just political questions – they are also moral and existential.
Objections to a hybrid investigation are carry-overs from a politically motivated distinction the UPFA made between ‘domestic’ and ‘international’, to enhance its image as protector against international conspiracies and separatists. UPFA exploited this image to muster popular legitimacy for all the deceptive strategies it used to justify its refusal to honor the demands for truth and accountability, and deny a free and safe space for the public to explore the relative merits of an international and/or domestic inquiry. The UPFA’s aversion to truth and accountability was evident in the way it conducted the Lessons Learnt and Reconciliation Commission (LLRC).
The LLRC omitted the reference to truth and transitional justice. It had an “inadequate mandate, insufficient guarantees of independence, and [a] lack of witness protection.” It also lacked the expertise to conduct inquiries relating to human rights abuses during wartime. Consequently, it failed to adequately investigate allegations against all those accused of human rights abuses. In fact, the Commission never brought a single person to justice. Despite the many warnings by its own supporters, the UPFA continued to mislead the public about the false dangers of knowing the truth and accountability, and the conspiratorial motives of those demanding justice. UPFA’s popular legitimacy rested not on the pursuit of truth but on forces opposed to truth. It drew its strength to resist accountability not only from domestic forces, but also from the controversial compromises it made with those members of the international community who opposed the UNHCR resolutions, and unconditionally bankrolled the government. In the process, UPFA nourished forces opposed to any credible measures for to honor the demands for truth and accountability. UPFA’s approach to UNHRC was hybrid, but its’ foundations were intellectually dishonest and immoral.
Opposition to a hybrid investigation is inevitable in a political culture where politicians are preoccupied with disseminating rather than directly confronting the propaganda against international involvement in any type of inquiry. It deprives society of an opportunity to reexamine taken-for-granted fears of accountability and transitional justice. We would be naïve to believe that the change of government has radically changed the political culture that shapes the way the majority of the population makes sense of and reacts to the UNHCR’s demand for accountability. When people derive their identity and security exclusively from ethno-nationalist ideals, their commitment to truth and justice does not extend beyond those ideals. Most information the general public receives about the government’s dealings with the UNHCR is distorted and misinterpreted by ethno-nationalist activists sympathetic to the previous regime’s policies. Civil society organizations, popular media, and religious leaders have all failed to help people understand the rather complex details of the UNHCR’s call for accountability through a hybrid inquiry.
Broad-based public support for a hybrid inquiry is unlikely when there is no concerted effort to get the public to reflect on the contradiction between them using an ostensibly ‘pure’ ethno-nationalist framework to make judgements about the UNHRC’s demands for transitional justice, and then not applying the same decision-making framework in other areas of life. These decisions are brazenly hybrid and appear to violate the core religious values of ethno-nationalism. Furthermore, the apparent ambiguities and contradictions in the way the current government frames its arguments in favor of a domestic inquiry, does not help our society broaden the scope of transitional justice beyond the constraints imposed by ethno-nationalist forces and those who value political stability over truth and justice.
The government’s opposition to a ‘hybrid inquiry’ did not evolve from consultation with the Tamil and Sinhala communities or political parties and civil society organizations that represent them. Instead of directly engaging with the Sinhala and Tamil communities’ respective reservations regarding a hybrid inquiry, the government, in consultation with a few countries, appears to have decided on a wholly domestic inquiry. The ambiguity as to the nature of foreign intervention in the domestic investigation is a major concern of both Sinhala and Tamil communities. Prime Minister says that the “local mechanism will not include any international partners or interference”(CP/09/23) Whereas the UNHRC resolution para 6 emphasizes “importance of participation in a Sri Lankan judicial mechanism, including the Special Counsel’s office, of Commonwealth and other foreign judges, defense lawyers, and authorized prosecutors and investigators ”(CT/09/24).
I doubt that the government has adequately addressed the Tamil community’s fears that a purely a domestic inquiry would be hijacked by those adamantly opposed to transitional justice, including perpetrators of crimes and groups with a vested political interest in protecting the perpetrators of those crimes. The government must recognize that Tamil opposition to a purely domestic inquiry stems from their bitter experiences with approximately eighteen commissions from 1963 to 2013 to investigate the violence and injustices committed against the Tamil community, including the Presidential Commission on Disappearances under the leadership of Mr. Paranagama. The government has yet to explain how the proposed domestic inquiry would differ from its predecessors, given the fact that the current so-called ‘national government’ accommodates committed ethno-nationalists and that an impartial inquiry would likely threaten the government’s ethnonationalists’ political support bases. At the same time, a hybrid inquiry would increase pressure on the government to deliver results, whereas previous internal Commissions did not have such pressures from forces outside of Sri Lanka.
Society’s preoccupation with taken-for-granted fears of foreign intervention in the transitional justice process has prevented it from reflecting on the probable positive linkages between a hybrid inquiry into alleged war crimes, and transitional justice and reconciliation. Such fears also handicap our society’s ability to recognize the potential of a hybrid inquiry to prevent undesirable impacts on the country’s legitimate national interests.
Many justify their opposition to a hybrid inquiry by pointing out that in Sri Lanka there are no constitutional provisions for a ‘hybrid inquiry’ and that the country has plenty of competent judges to conduct an impartial inquiry. These arguments are made as though the justice system has had sufficient time to recover from its negative past during the UPFA regime. Neither of these arguments against foreign intervention is based on a careful assessment of the capabilities of the domestic justice system to handle such a complex issue as transitional justice.
Politicians and their intellectual allies opposed to a hybrid investigation completely disregard the inadequacies and limitations of domestic justice mechanisms in addressing issues relating to ethnic conflict, and the ways that an international intervention could compensate for those inadequacies and limitations. A purely doctrinal approach to law fails to recognize that law does not protect the ‘natural order of society,’ but creates and protects order stemming from economic and political power. The individual and collective identity of those who interpret the law is not entirely immune to these contextually specific economic and political ideologies, and power relationships. Consequently, “despite the law’s claims to accord justified, determinate and controlled expressions of power, law fails on each of these dimensions and instead mystifies outsiders in an effort to legitimate the results in courts and legislatures.” Protecting a more humane and egalitarian coexistence and democratic society is not an inherent quality of law. It is really ironic that the JVP and the religious leaders do no subject the constitution and the country’s legal system to critical scrutiny based on their Marxist and religious doctrines, respectively.
One can find numerous examples of law as the expression of unequal economic and political power. The Republican Constitution of 1972 is a product of the unequal distribution of power between the Sinhala and Tamil communities. The many commissions to address the violence against minorities failed, as their mandate and the flexibility to interpret the laws were subordinate to the very forces responsible for injustices that the commissions were entrusted to investigate. The government applied the Prevention of Terrorism Act (PTA) in a discriminating fashion to Tamil journalists who faced accusations of aiding and abetting terrorists and disrupting ethnic harmony simply because they exposed human rights abuses. Sinhala politicians and ultra nationalist groups did not face similar consequences for making blatantly racist statements or for rewarding LTTE carders (who were responsible for murdering unarmed civilians and abducting children) with ministerial portfolios. Similarly, members of the former government did not face consequences for allegedly providing funding to the LTTE.
Apart from the inherent subjective biases inevitable in any legal system, a few other popular misconceptions fail to consider the benefits of a hybrid inquiry. First, the legal system and interpretative frameworks in Sri Lanka are not purely indigenous; they are hybrids, as they evolved through the interaction among British, Roman, Dutch, and Common Law. The ethnic conflict itself is partly a product of the legal system, and any solution to the conflict entails substantive reforms in the legal system. Moreover, I never hear the Lawyers Collective, which was critical of the justice system under the UPFA regime, or the country’s reputed jurists, objecting to a hybrid inquiry. The opposition is a self-serving imposition by the politicians.
Second, the public is duped into believing that a ‘domestic inquiry’ is completely free of undesirable foreign influences in the country’s internal affairs. In fact, such influences could better thrive under the cover of a domestic inquiry. Today, the boundaries between the domestic and the international are blurred and subject to continuous negotiation. Thirdly, to say that the hybrid inquiry is entirely an external imposition completely overlooks the fact that it is also the Tamil community’s preference in place of an international inquiry. The proposed domestic inquiry is a result of contextually specific compromises between the government of Sri Lanka and the international community agreed upon after the regime change in Sri Lanka. The idea of ‘domesticity’ is a misnomer to the extent that it is a political construct to appease the variety of stakeholders whose political interests are likely to be undermined by hybrid and international inquiries.
A hybrid investigation is better positioned to minimize the subjective biases of law and its interpretations. Foreign participation in an inquiry does not threaten but enhances the credibility of the domestic legal system, as it introduces checks and balances on the subjective biases of each member conducting the inquiry. A dialogue among different legal traditions and judges is more likely to aid the cause of justice. The witnesses and the accused are in a far more comfortable position to testify in a multicultural, multinational investigation than a purely domestic one. A hybrid inquiry will be far more amenable to impartiality and accountability than a domestic inquiry, as the former is relatively less vulnerable to politicization. Furthermore, a hybrid inquiry has a greater potential to build Tamil and Sinhala community support for government efforts, if the government’s primary objective is to use the inquiry to complement its broader objectives of reconciliation and transitional justice. If the government rejects a hybrid inquiry purely for the sake of political stability, it would neither bring closure to the issues of accountability, nor safeguard its stability. Extremists and political opportunists will welcome such a move by the government, and it might even precipitate an early collapse of the government.
Hybrid legal responses to transitional justice, a currently popular institutional response to transitional justice, grew out of the complex conflict and post-conflict situations in countries such as Rwanda and Sierra Leone and the experiences of the Truth and Reconciliation Commission in South Africa. These responses accommodate the coexistence of multiple social, political and legal institutions, traditional and formal, domestic and international, to maximize the capabilities of each institution’s contribution to transitional justice. Their goals are not only legal, but also cater to the physical, psychological and social needs of individuals and groups after protracted conflicts. Former UN Secretary General Kofi Annan, in response to post-conflict reconciliation mechanisms in Rwanda, Sierra Leone, and East Timor, noted that the hybrid institutional (e.g. gacaca system in Rwanda) responses grew out of, not in opposition to, the recognition of the role that the indigenous institutions can play in transitional justice. Hybrid systems could be viewed as an opportunity to improve the Sri Lankan justice system so that it will produce tangible outcomes while creating the necessary conditions to cajole it to function at the standards that we expect of it.
The kind of moral holism advocated by hybrid systems also functions as a buffer against the potential cooption of traditional, formal, domestic and foreign systems of justice by the vested interest groups to deny justice to the victims and perpetrators of crimes. In comparison to African countries, Sri Lankan traditional systems of jurisprudence in conflict resolution have virtually disappeared. The country’s justice system is a compilation of many different international legal traditions. Compared to African countries, Sri Lanka is far more resistant to foreign interventions, despite the fact that it’s domestic justice system is not fully accepted by the victims of alleged crimes, as the system has yet to recover its credibility, lost during the UPFA regime.
The public should certainly not blindly accept the hybrid court. The limitations of hybrid courts are well documented in the literature, the Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) being recent examples. Despite the stated intentions for impartiality, hybrid courts themselves are political compromises accused of manipulation, suppression of victims’ rights, and biases. Since the Nuremburg Trials, these hybrid tribunals have been subjected to heavy criticism, including the charge that they merely represented “victor’s justice,” but they have also made significant contributions toward the advancement of international law to uphold justice in conflict and post conflict situations. The government’s responsibility is to explore these negative experiences of hybrid courts in terms of their implications for protecting the entitlements of the victims and perpetrators of alleged war crimes and crimes against humanity, in the context of Sri Lanka.
Under these circumstances, the best option for maintaining a high degree of impartiality and satisfying multiple stakeholders is an inquiry that is conducted by those with the best knowledge, experience, and integrity from different legal and cultural contexts. It should include domestic and international legal professionals, the military, civil servants, members of local and international civil society organizations, and victims of war and terror from both sides of the ethnic divide. This perhaps is the reason for Mr. Abraham Sumanthirans’s (TNA) contention that “we would want international judges in special courts that the government sets up, independent prosecutors and, importantly, laws to incorporate war crimes into the body of offenses in Sri Lanka with retroactive effect.” Ideally, a hybrid inquiry conducted at a neutral location would provide the continuity of the investigation, in the event that the current regime loses its hold on state power.
Hybrid investigation should be viewed as an opportunity to counter anyone who seeks to exploit the accountability process to harm the country’s just and equitable national interests. If judiciously handled, it will also lay the foundation for a more inclusive meaning of sovereignty and national identity, which I think is essential for meaningful reconciliation in a multicultural society like Sri Lanka. The people could help such an endeavor by using the moral values of their respective religions to evaluate the relative benefits and limitations of hybrid, domestic, and international investigative mechanisms.