Columns
‘After the heavy rains, some wetness remains’
View(s):The wholly reprehensible quotation which this column borrows for the title this week comes verbatim from the November 2011 report of the Lessons Learnt and Reconciliation Commission (LLRC). This is where it quotes the head of the government linked Eelam Peoples Democratic Party (EPDP) when the LLRC questioned him in regard to specific allegations of enforced disappearances, extortion and extra-judicial killings leveled against the EPDP by Tamil civilians living in the North after the close of the war in 2009, (see at p174 of the LLRC report).
A manifestly callous observation
The callous nature of this quote is cannily carried by the LLRC to underscore the horrifyingly casual nature of extra-legal killings carried out by paramilitaries. And in observation thereof, the fact of the matter is that the paramilitaries worked in close tandem with sections of the government military. To asset this is sheer commonsense as otherwise, such illegal activities would have been brought to a halt, at least gradually post 2009.
But let us return to the LLRC report. The EPDP leader made this remark to the LLRC in the larger context of what the LLRC categorised as ‘ruthless internecine warfare’ encouraged by the Liberation Tigers of Tamil Eelam (LTTE) which resulted in Tamil groups opposed to the LTTE having to carry weapons and as this explanation goes, ‘although the LTTE engineered conflict is over, some residual activity could remain for some time.’
But the LLRC was unequivocal in its condemnation of the explanations by the EPDP and paramilitaries, observing that they ‘provide little or no consolation to the aggrieved parties and tends to militate against any meaningful reconciliation process.’ Indeed, personal testimonies of civilians victimized by these groups have been detailed by the Commission members in its 388 page report under a heading appropriately titled ‘illegal armed groups.’
Its recommendation is categorical. First, proper investigations should be conducted in respect of these allegations. Second, criminal proceedings should be instituted against offenders. That was not all. The Commission also reiterated the disarming of illegal armed groups, pointing out moreover that if that same recommendation issued in their interim report had been implemented, the attack on the Jaffna based Uthayan newspaper may have been prevented (see at p175 of the LLRC report). There must be a time bound and verifiable process, it stressed.
Predictably, the EPDP leader breathed fire and brimstone consequent to the release of the LLRC report promising to sue the Commission. Predictably again, he never did.
Non-implementation of the ‘hard parts’ of the LLRC report
Two years on, these remain the ‘hard parts’ of the LLRC report which the Rajapaksa Presidency chooses to disregard, along with the LLRC’s specific recommendation to appoint a Special Commissioner of Investigations in order to investigate enforced disappearances and to provide material to the Attorney General to initiate prosecutions.
These are, of course, not extraordinary recommendations. These obligations are part of a State’s duties towards its citizens. Indeed, they are imposed upon this Government through existing penal statutes. One does not need an LLRC to tell the Government to enforce the existing law. But the fact of the matter is that the political will is not evidenced to do so. And this remains the truth whether it is the LLRC or a ridiculously imagined TRC (Truth and Reconciliation Commission) that is in issue.
Further, there is a logical link to this recommendation and amendments made in 2008 to the Commissions of Inquiry (COI) Act conferring new powers upon the Attorney General to “institute criminal proceedings in a court of law in respect of any offence based on material collected in the course of an investigation or inquiry, as the case may be, by a Commission of Inquiry” appointed under the Act. (see new Section 24 of the COI Act of 1948 brought in by the Commissions of Inquiry (Amendment) Act, No 16 of 2008.
These amendments were brought as a result of sustained pressure on the Government to remedy the fact that Commission reports are inevitably discarded with no link between criminal proceedings and Commission hearings. Past instances of such failures had been meticulously documented. Changes to the laws were made to offset these criticisms.
Empowering Commissions with authority
At the time that the amendments were effected, it was pointed out by this columnist that vesting discretion in the office of the Attorney General needs to be distinguished from the more imperative reforms called for. These are the amendment of the laws of criminal procedure, penal culpability and evidence in order to vest the proceedings and findings of Commissions of Inquiry with specific legal relevance. The 2008 amendment was critiqued on the basis that merely conferring powers of indictment upon the Attorney General poses a certain element of risk given the politicized nature of this office. In fact, these concerns were raised during the relevant Parliamentary debates on this amendment (see Hansard of 07.02.2008, at pp. 850-852).
Having said that however in what appears to be far saner times to what inflicts us now, it must be noted that the 2008 amendment did give some force to the reports of COIs. Indeed, this link may also be one specific reason why the 2006 Commission of Inquiry Report into the killings of the aid workers in Mutur and the extrajudicial executions of Tamil students in Trincomalee has not still been made public despite the stringent recommendation of the LLRC.
Most probably the Udalagama reports points to culpability on the part of relatively senior army and STF personnel at least in regard to the Trincomalee killings. Subordinates who have been indicted in the past year are, as is the pattern in such events, mere scapegoats. In any event, we must be kept guessing in the absence of the publication of the Udalagama LLRC report notwithstanding despicable attempts by government paid propagandists in the private media, (now proudly spewing venom in the state media), to publish extracts from the submissions of the defence counsel for the respondent army officers claiming those to be ‘leaked’ sections of the Udalagama report.
Government needs to stop pussyfooting around the LLRC report
Whatever it may be, unless and until this Presidency implements these specific recommendations of the LLRC with demonstrable political will and ceases its pussyfooting around the LLRC Report by citing only the ‘soft’ recommendations relating to rehabilitation and the like, there is little likelihood of the lessening of the pressure under which it is currently being put. And it may as well enact a Right to Information Act as well, yet another of the LLRC’s key recommendations which it chooses to ignore.
In the absence thereof, it is not simply a question of ‘some wetness’ remaining after conflict. Rather and on all counts, the Sri Lankan people continue to be douched by unending monsoonal rains of human rights abuses and manifold violations of the Rule of Law. And unlike the monsoons which bring relief to a thirsty land, what we have here is the converse; a nation which is parched with the manifest absence of the Rule of Law in every sense of the word.