Columns

Talking with a Kashmiri lawyer in New Delhi on Saturday morning, I realized anew that the universal problem of justice for the disappeared cannot be met purely by law reform or by the prosecution of a few low-level offenders. Experiences throughout the world show that these are superficial measures, designed to placate and mollify in the short term. Inevitably moreover, such actions are influenced by political expediency rather than by genuine intent to reform. 

Serious questions of state accountability
If therefore, the Sirisena Presidency intends to prevent the Sri Lankan State from harming its own citizens, serious questions of state accountability must be addressed. It must release the Udalagama Report in line with the recommendations of the Lessons Learnt and Reconciliation Commission. Effective prosecutions must be expedited against state agents responsible for the brutal 2006 killings of students in Trincomalee and aid workers in Mutur. The horrendous practice of keeping Tamil detainees imprisoned without charges being brought against them must be stopped. There is a deep sense of hurt and grievance on the part of the Tamil community which needs to be looked at sensitively. Other imperatives may form part of a wider push for reforms rather than be brought within the reach of the Government’s abominably ill advised voluntary limitation of a 100-day programme.

First, the doctrine of command responsibility must be reflected in Sri Lanka’s pre-independence Penal Code. In other words, the legal liability of political and military superiors when their subordinates commit abuses under their watch must be ensured. With that, political will must be evidenced to prosecute and punish.

Not a problem limited to the war
Let us be clear however. This is not a question limited to the ending of the war in 2009 or indeed to abuses committed against members of one ethnicity. Rather it is an overarching problem of state impunity in regard to which the United National Party (UNP) and the Sri Lanka Freedom Party (SLFP) are both responsible. So as government politicians now wax eloquent on accountability, the contribution of their party to Sri Lanka’s ‘impunity culture’ must be recalled.

Indeed, if state repentance is talked about, it is under governments of the SLFP that even the minimum was enforced. Successful prosecution of the killing of Premawathie Manamperi in the first Southern insurrection, the rape and murder of Tamil schoolgirl Krishanthi Kumaraswamy and the disappearance of her mother, brother and friend in the 1990′s and the enforced disappearances of Sinhalese schoolchildren from Embilipitiya in the second Southern insurrection are examples thereto. So let us have a little less political hypocrisy exhibited, as oxymoronic as that may be.

Second, bringing in command responsibility into the domestic penal law is not a revolutionary development. In several excellently reasoned decisions when its jurisprudence equaled the quality of developed Commonwealth courts, the Sri Lankan Supreme Court has pronounced on the vicarious liability of superior officers who turn a blind eye to violations committed by their subordinates.

Political will to prosecute
Admittedly, the importation of these constitutional concepts into the criminal law is subject to certain caveats. An individual’s mental intention to commit a crime must be shown. But there is precedent in this regard. Sri Lanka’s most well crafted Convention Against Torture and other Inhuman and Degrading Punishment Act No 22 of 1994 (CAT Act) penalizes superior officers who ‘consent or acquiesce’ in torture. In fact, the Act’s definition of torture vis a vis the element of criminal intention is even broader than the United Nations Convention on Torture.

However, political will to properly use the 1994 CAT Act has been strikingly absent in the twenty years of its enactment. Then as now, this law came into force at a time when Sri Lanka was promised something better. These promises dissolved into thin air thereafter. Torture and disappearances continued as part of an unspoken state policy.

In the past, the Department of the Attorney General has been questioned by the High Court as to why officers in charge of police stations are not indicted where they have ‘consented or acquiesced’ in torture under their command. Yet the prosecutorial response thereto has been dismissive. The Department’s record under the Act is extremely poor with a mere sprinkling of convictions.

Dilemmas of accountability not peculiar to us
So as we hail the enactment of Sri Lanka’s Protection of Victims and Witnesses law this week, a timely caution may be in order. Good laws have been of little use in the absence of political will and effective enforcement mechanisms. Moreover, the question of state accountability for abuses undergone by Sri Lanka’s Tamil community is even more complex. A one-time deferment of the March 2015 United Nations Human Rights Council’s report on Sri Lanka has been effected on the basis of giving space for a credible national inquiry.

Yet on the one hand, the Southern political spectrum has been agitated by inflammatory allegations that this delay will only lead to a strengthening of the report, focusing on the State’s responsibility rather than within the larger issue of impunity brought about by state as well as non-state actors. This may well lend grist to the mill of rabid Sinhala nationalists who are eagerly waiting the return of the Rajapaksa era. In that context, the lamentably ill timed resolution of the Northern Provincial Council stating that ‘genocide’ has been committed by the Sinhala State against the Tamil people is regrettable.

On the other hand, when assurances of a credible national inquiry on war-time accountability are held out, it is difficult to withhold one’s skepticism when this Government’s progress in regard to the most basic criminal investigation against low-level offenders including ‘elephant thieves’ is alarmingly slow.
Regardless, Sri Lanka should witness vigour in public debates around these issues. International scrutiny on the country’s accountability record can best be met through these strategies. Legal and policy reforms must be accompanied by reparations for those who have suffered of all ethnicity. Energetic discussions in India currently involve these same questions where Kashmir’s problems of enforced disappearances are concerned.
We are certainly not alone in the profound dilemmas that these issues pose.