Columns

Stories of injustice
This father went through the local justice process with all its pain, humiliation and hopelessness, including being relentlessly badgered during the hearings of the Udalagama Commission inquiry (2006), resulting in him breaking down in tears. So the academic rhetoric of the law and intricate constitutional tangles mean little to him.

At the other end of the country, such esoteric preoccupations would also mean little to the falsely accused schoolboy in the rape and murder of little Seya Sadewmi, who was remanded, allegedly tortured and filmed naked before being released by the police upon lack of DNA evidence this week.

These stories of ‘Southern ‘injustice’ are also endless. Emblematic among them is the torture of Gerald Perera who was also arrested by the police after being mistaken for a known thief in 2002. Two years later, despite one of the most far reaching judgments of the Supreme Court awarding him record compensation, he was shot at point blank range, days before he was due to give evidence at the trial of his torturers. It took eleven tortuous years of persistent activism for the accused police officers to be convicted this year. This too was possible only because state agents or high level politicians were not involved.

The integrity of the judiciary
And what of the death of Sri Lankan ruggerite Wasim Thajudeen which surfaced at high intensity just prior to the August parliamentary elections? Now what we hear is unseemly wrangling between judicial medical officers. To add insult to horrendous injury, crucial forensic and evidentiary reports appear to have ‘disappeared.’ Same patterns of subverted investigation, prosecution and legal inquiry were evidenced in the ‘Northern’ crimes, in regard to the 2006 Trincomalee killings of students and the extra-judicial executions of aid workers in Mutur that same year.

These are grave thoughts even as we absorb the impact of Thursday’s United Nations Human Rights Council’s resolution committing Sri Lanka to correct its legal failures. Prime Minister Ranil Wickremesinghe may well posit the integrity of the judiciary at the centre of the debate as he has done this week. From unwisely hailing the restoration of the independence of the judiciary upon the summary ejecting out of (Chief Justice) Mohan Peiris after the January 2015 electoral win, more cautious language is now used. Under pressure, the Government admits now that, much more needs to be done to ‘clean up’ the judicial institution. That itself is a first step.

However, odd references by government ministers to the Criminal Justice Commission (CJC Act No.14 of 1972) apparently as useful precedent for referencing previous ad hoc inquiries into human rights violations in present day times raises considerable unease. Several provisions of this law, enacted to deal with persons involved in the first Janatha Vimukthi Peramuna insurrection and with foreign exchange control offenders, were repugnant in the first instance.

Eschewing simplistic proposals
Indeed the Bar Council at the time raised strong concerns that this ‘new type of criminal tribunal’ is of unlimited retro-active operation, that the role of the members of the commission will be inquisitorial rather than judicial and that the laws of evidence and procedure are to be relaxed. It was observed that ‘a probable consequence of the proposed relaxation of the laws of evidence, which will permit otherwise inadmissible and hearsay evidence to be led, would be that innocent persons would be convicted upon unreliable evidence.’

To believe that the importation of the United Nations’ favourite answer to transitional justice dilemmas will automatically provide solutions is also unforgivably simplistic. It is infinitely amusing if it is not so tragic for example, that the ‘special courts’ of Rwanda and Cambodia had as members, Sri Lankan judges who were themselves complicit in lesser or greater measure in the decline of judicial integrity during 1999-2014 in this country.

Earlier this year, I asked a fellow panelist and a well known international legal expert (plenary sessions of the American Law and Society Association (LSA), Seattle, May 2015) as to how these veritable idiocies occur and he was speechless.
Those who view imperfect practices of international justice tribunals with deep skepticism therefore have reason to do so.

Learning from lessons of history
These are lessons of history that we should keep in mind when painfully navigating this minefield of blood and injustice throughout the land. Indisputably the country’s internal legal and investigative systems have been crippled to the point where they are no longer democratically functional as we see in the recent controversies over the role of the Attorney General in the Avant Garde case.

This breakdown of the law occurred insidiously, creeping upon us even as, in the immortalized words of the Guatemalan revolutionary poet Otto Rene Castillo, ‘apolitical intellectuals’ engaged in ‘absurd justifications, born in the shadow of the total lie.’ The ‘total lie’ of belief in a functional system of Sri Lankan law is therefore the first fact that we must acknowledge in all its awful truth.

And critical self-reflection is long overdue even as towering cut-outs of President Maithripala Sirisena welcome him back in honour of having ‘saved’ little Lanka, presumably from the ravening Western wolf. Moreover, the unsettling sight of his son sitting along with the official delegation in the assembly hall of the United Nations brings back recollections of a Rajapaksa-era which is disturbing to say the least. Even now, risking all the gains of the past few months is certainly not beyond possibility.

In the final result, the Sri Lankan Government will not be able to ‘escape’ with a domestic mechanism if it is shot through with the same systemic flaws which are all too familiar to us. The attention of the United Nations on this country is here to stay for an appreciably long time until concrete results are evidenced.
We need make no mistake about that.