Columns

There is an uncanny sense of déjà vu in the air.
The persistent recalling of worrisome history is pervasive, whether in regard to roguery relating to public funds, ministers appointing relatives to state offices because they are ‘trusted’ or the intimidation of citizens and students.

Continuation of an abusive state apparatus
Unlike its infinitely cruder predecessor, this new Government is more inclined to likeable optics on liberal reform. But would optics alone suffice? And in the absence of once strident critical voices, who were (rightly) outraged at Rajapaksa misdeeds, this question becomes even more acute.

This week, the Minister of Foreign Affairs is reported to have sworn in all solemnity that if state agents were ‘proved’ to have ‘questioned’ relatives of missing people who had met the United Nations Working Group on Enforced or Involuntary Disappearances, they would be disciplined. This was in response to the Working Group’s considerable public disquiet in that regard.

These are tormenting echoes of the past. As late as last year, such ‘questioning’ was a prelude to the enforced disappearance of these unfortunates. While thankfully such atrocities are seemingly no longer part of deliberate state policy, Sri Lanka’s security apparatus appears to have continued with little change despite the turnover in political leadership early this year. This is evidenced by the Avant Garde controversy, to name just one example.

‘Proved by whom?”
This is a pattern that we are well used to. In the first flush of electoral victory, complacency in seeing new faces persuades us into optimistically believing that things have changed. But in actual fact, impunity structures remain very much in place. As we saw in 1994 and in 2005, it only requires a government to feel itself besieged for these structures to become frighteningly operational.
Hence the Foreign Affairs Minister’s assertion gives rise to several pertinent questions. One may well ask the Minister, ‘proved by whom?’ Are ordinary Tamil civilians, oppressed enough by their travails under Rajapaksa rule and still living in the shadow of enormous fear of ‘the Sinhala State,’ expected to file an application in court to ‘prove’ their complaints? This is reaching the heights of unfounded optimism.

The least that could have been done by the Government is to hold a credible inquiry in regard to these allegations of intimidation. But such inquiries cannot be held in a vacuum. The Government must demonstrate genuineness in reversing abuses of the past. As much as corruption inquiries cannot be accepted as credible based on pure rhetoric, this is also the same in regard to protection of civil liberties. Rhetoric alone is cold comfort for those who fear state agents with good reason.

Lack of political will
Indeed, this would be an ideal opportunity to implement Sri Lanka’s Witness Protection law in force since August. But its Protection Division posited as part of the police hierarchy is a key weakness of this legal scheme. It is farcical to expect vulnerable persons fearing state agents to repose confidence in those very agents to protect them. Best practice in other countries demonstrates that the functional parts of witness protection must be completely separate from the law enforcement machinery. The Government has yet to demonstrate its credibility by amending the law to ensure this. It has shown no inclination to do so. In any event, this law is yet limited to the statute book.

So in this relatively hopeless context, to talk of ‘proof’ is to invite cynicism. This was exactly how Rajapaksa agents dismissed allegations of abuses. ‘Prove them,’ they said with customary bluster. Now Sri Lanka’s dysfunction of justice institutions is placed shamefully on near par with the Congo.

Yet what hampers justice is not the absence of sufficient law or capable officers but the lack of will. We see this in the unfortunately public tussle between officers of the Department of the Attorney General in regard to moving the legal system against Avant Garde. Other such examples are multifarious.

Abusers still in office
As far back as in early 2006, a report submitted by Sri Lanka’s reputed High Court judge, the late T. Suntheralingam identified special task force officers as responsible for the January 2006 killings of students in Trincomalee. He had been requested by the Human Rights Commission (HRC, functioning under the 17th Amendment) to inquire into this and other gross human rights abuses.

The report was completed in March 2006 and later handed over to the HRC. It was inexplicably not released to the public. Annual reports of the HRC did not even refer to this excellently drafted report. It was as if it had never been commissioned or handed over. This reflects on the integrity of the HRC long before the 18th Amendment malformed the process.

If the Suntheralingam report had been made public at the time, the later fiasco of the Udalagama Commission may have taken a different turn. In fact, we may not ultimately have had a United Nations mandated inquiry waved under our noses. State complicity in the killing of these hapless students as they were chatting near the Gandhi statue in the city centre was so great that, with all its subversion, the Udalagama Commission had to concede the same. It also had to concede the lack of professionalism in the equally heinous killing of aid workers in Mutur, just seven months later. There was basically no other conclusion that could have been reached.

Core danger in ambitious plans
And what of the state agents identified as being responsible for abuses? They continue to serve in senior positions while junior officers are sacrificed at the altar to satisfy ‘international pressure.’ At another level, officers of the HRC directly responsible for perversely withholding the Suntheralingam report represented the body as recently as a few months ago, unsurprisingly rebutting allegations of torture in police stations. When abusive and corrupt state agents are kept in place or promoted, what chance does good governance have?

The Government now proposes ambitiously ‘instant’ (much like noodles) transitional justice processes. Is it to prosecute a few individuals and hold that out as the triumph of ‘accountability’ without significant reform of the state security apparatus? Are we to be satisfied with the optics of conformity to law while the reality is quite the contrast?
If so, that manifestly cannot be tolerated.