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The 20th century essayist and philosopher George Santayana’s caustic observation that ‘those who cannot remember the past are condemned to repeat it’ may well have been specifically tailored for Sri Lanka. This is true not only for politicians who are generally characterised by a singularly bovine stupidity but also for many others whose capitulation to political agendas is deplorable.

A common focus in securing justice
Last year, with the routing of the Rajapaksas, the several United Nations Resolutions committing Sri Lanka to securing justice for war time atrocities remained a foremost challenge. Ideally this should have been coupled with a strong law centered determination in bringing corruptors to justice. Both aspects may have been part of one process, bringing the people into the centre of change. Public support for this would have been overwhelming across the country, with the firm relegation of the Rajapaksa support base to the sidelines.

There is an important common focus in both processes. This is the cleansing of the defiled Augean stables of Sri Lanka’s police and prosecutorial agencies. In that regard, I do not use the term ‘defiled’ lightly. This is not to say that honourable individuals do not serve in these agencies. On the contrary, the system works in such a manner that honour and dignity have little place in decision making. Currently there is public scrutiny of the pending appointment of Sri Lanka’s Attorney General. The subversion of the prosecutorial role is neither recent nor intermittent. It has been well documented before courts as well as during Commissions of Inquiry, most recently by a senior police officer who pointed to the active role played by a particular senior state law officer in obstructing the inquiries of the 2006 Udalagama Commission.

The conflict of interest arising by a state law officer ‘advising’ failed police investigations and then assuming the role of chief legal ‘advisor’ of the very body mandated to inquire into those investigations was obvious. This was stressed by two retired judges of Sri Lanka’s Supreme Court who gave a legal opinion at the time. It is regretful, however, that none of the Commissioners possessed the basic courage to speak forthrightly on these matters, either then or later. This is what the culture of silence means in this country.

Isolation of honourable state and judicial officers
That said, we would be fooling ourselves to think that a single appointment (even that of the Attorney General) would dent Sri Lanka’s impunity culture. Last year, state officers who acted in accordance with the law retreated in disorder under the ‘yahapalanaya’ (good governance) establishment. When state counsel demanded answers from the army in inquiries of gross human rights abuses of Sinhalese, Tamils and Muslims (examples being Ekneligoda, Thajudeen and the several enforced disappearances of Tamil civilians), outrageous pressure was brought to bear on them.

Comparably, several brave magistrates have distinguished themselves in their refusal to yield to crude pressure. One example is the Homagama magistrate who meted out appropriately severe treatment to the leader of the Bodu Bala Sena (BBS), following his threatening the magistrate, the lawyers and the wife of the victim in the Ekneligoda disappearance case. The judicial officer publicly lamented the pressure that he had been subjected to. These were unprecedented assertions given that judges generally observe the highest rectitude on the bench.

Credibility of the political authority
Above all, the Ministries of Justice and Law and Order which stand in an immediately supervisory position to these agencies, need to be like Caesar’s wife, not only above suspicion but seen to be above suspicion as well. But even given Sri Lanka’s torrid past, the Wickremesinghe-Sirisena coalition Government has not succeeded very well in that respect. The Avant Garde controversy cast serious aspersions against the previous holder of the Law and Order Ministry and the incumbent Minister of Justice. These controversies are still unresolved.

But we see the denial of systemic impunity at the very highest levels of the political authority. President Sirisena’s recent denial to the BBC that the army high command was obstructing inquiries into highly controversial cases is a case in point. By scornfully dismissing concerns raised by family members and even by the court as ‘wrong’, the President pandered to domestic politics and abandoned the mandate on which he was elected.

If more decisive political leadership had been evidenced, President Sirisena may have been justified in claiming to foreign news agencies that Sri Lanka has sufficient local independent mechanisms to ensure accountability. But his administration’s performance during the past year has not proved that claim. Sri Lankans themselves can scarcely be blamed for feeling legitimately skeptical.

Fundamental challenges before us
As much as we may want it, Constitutions alone cannot solve the country’s problems. And we appear to have perfected the art of impeccably drafted laws which defeat considerations of justice in their practical workings. Esoteric constitutional reforms are always rendered helpless when confronted by structural impunity

It must be recognised that the report of the Office of the High Commissioner (OHCHR) on which the 2015 United Nations Resolution was based, was not of such a gentle nature as is sought to be made out. The OHCHR concluded that horrific crimes of a systemic nature had occurred both during conflict and afterwards which ‘if established in a court of law, may constitute war crimes and crimes against humanity, and give rise to individual criminal responsibility.’

These are not conclusions that can be shrugged aside with an airy wave of a Presidential hand. While symbolic gestures such as the national anthem being sung in Tamil on Independence Day is well and good, these are not the ‘hard’ questions before us. Indeed, the very fact that there is a debate on this is due to the monumentally racist idiocies of the Rajapaksas. Energy need not be wasted overmuch on the same. There are far more serious tasks in hand which also cannot be glossed over by the arrest of a Rajapaksa sibling or two.

Undoubtedly the key challenge for this Presidency and this Government is how to meet public expectations if it is to avoid a deepening crisis of public credibility emanating from the North to South. In the alternative, Sri Lanka will be once more swamped by internal crisis and external pressure which, in the midst of a worsening economy, will certainly have catastrophic consequences.