Achieving just a few fundamental changes in displacing impunity

By Kishali Pinto Jayawardena

The central issue in regard to the prevalence of impunity for rights violators in Sri Lanka is quite clear. It has been, and still is, the question of an almost absolute lack of legal accountability for abusers. The point has been made in this column before; during the past three decades of conflict, we have had only two successful prosecutions, firstly the Krishanthi Kumaraswamy case in the North and the Embilipitiya Disappearances in the South. This is why we have had sixty odd disappearances in the past and why we continue to see this phenomenon of abductions and extra judicial killings.

All the spluttering justifications advanced by various governments as to why the conflict makes anti terror laws necessary have not served to detract from this single stark statistic which shows the other side of what the terror laws can do to ordinary human beings.

So, on the one hand, while the old argument may be made that extraordinary situations of crisis demand extraordinary measures, the Sri Lankan State has yet not explained why it has been able to find and sentence the perpetrators responsible only in two singular instances among scores of similar happenings, many of them qualifying within the definition of crimes against humanity according to international human rights. The recent re-imposition of strict (and stricter) emergency regulations bring back these old bogeys and with justifiable reason.

In that context, the appointment of yet another Commission of Inquiry (even if a group of international eminent persons as observers is superinposed as a gloss to this exercise) will not serve to end this most barbaric of cycles. However, provided that these international observers are searching in their assessments, (and in that regard, the nomination of former United Nations Special Rapporteur on Torture and currently expert member of the United Nations Human Rights Committee, Nigel Rodley is to be particularly welcomed), what it might do is to bring intense pressure upon the Government to put into place, legal and investigative structures that might go some way towards establishing legal accountability.

Indeed, one does not have to embark on a voyage of discovery to detail what these measures may amount to. Some of these measures are contained in Reports of past Commissions of Inquiry into Extra Judicial Killings, Disappearances and the like. Needless to say, these Commissions were appointed in terms of the same law under which the current Commission is constituted.
Here again, though they were appointed for only one year, their terms were extended beyond this period, thus usefully lessening the urgent cry of immediate action to be taken in respect of the incidents, which were the focus of the investigations. Ultimately when their Reports were, in fact released, particularly those of the 1997 Disappearances Commissions which contained some extremely useful recommendations to the Government, none of these measures were implemented excepting the payment of some amount of compensation.

The euphemistically titled Presidential Truth Commission on Ethnic Violence in 2001, was far less structured in its contents and recommendations. The nature of this Commission was, as noted before in this column, quite different to the South African Truth Commission to which however, there are generous references to, in the Report. As defective as this so-called Truth Commission was, its Report was also treated to the same fate.

And while there were those who appeared to feel that the payment of compensation was sufficient to remedy the grievances of the victims who had given evidence before these Commissions, this was but a parody of the truth. If, in fact, there had been a greater cry on the past of the Sri Lankan public, including its activists, academics and indeed, the media, at that time for the implementation of measures suggested in these Reports, perhaps we may not be facing such a desperate situation now.

One common recommendation, for example, in the Reports of the 1997 Disappearances Commissions as well as the 2001 Presidential Truth Commission on Ethnic Violence was the vesting of the National Human Rights Commission of Sri Lanka with powerful and specific investigative capacity with the requisite amendments to be made to the enabling Act. This remains a tremendous lacunae. Over and above, what we have now is the dismantling of even the limited authority that the Commission possessed earlier as a result of the unconstitutional appointment of its Commissioners by the President early on in the year. Currently, the Commission engages in what is regrettably only a farcical carrying out of its mandate.

For example, though the international non-governmental organisation, Action Contra L' Faim lodged a complaint in the Commission regarding the killing of seventeen of its aid workers as far back as early September 2006, no action has been taken by the Commission in that regard excepting the formal notification to the complainant that the petition has been accorded a number and that "investigations are proceeding." The question as to how investigations can proceed without the complainant being called for an inquiry at the outset is relevant in that regard.

It may now be maintained that this case is among the selected cases to be investigated by the Presidential Commission, thus obviating the necessity for the NHRC to go into the matter. However, this cannot, at any stage, be a credible excuse given that the NHRC is vested with a specific statutory duty in that respect and given also that the warrant of the Presidential Commission does not exclude other investigative processes continuing. But this is what is so obviously wrong with the NHRC now. Its lack of commitment continues to be so spectacularly manifest.

The one other recommendation emerging particularly from the 1997 Disappearances Commissions Report was the creation of the office of a Special Prosecutor. The Commission specifically makes the observation that " the existing framework of the Attorney General's office is not structured to fill this need. The Attorney General's function is to mount prosecutions and represent generally state officers in complaints against them. This appears to place that office in a paradoxical position. The sole concern of the proposed independent prosecutor's office would be to institute proceedings (criminal prosecutions) where the Human Rights Commission (with the assistance of its investigative unit) has found sufficient evidence for that purpose." This observation sets out the gist of the problem in admirably succinct terms.

The establishing of a Special Prosecutor (as an office proposed to be set up under the same terms and conditions of the office of the Attorney General and the Auditor General thereby possessing constitutional protection), is a recommendation that has been reflected in numerous other reports, both domestic and international. Undoubtedly the Disappearance Investigative Unit (DIU) of the Police Department should not be the sole authority responsible for providing crucial evidence to initiate charges against human rights offenders, some of whom come from within the department's own ranks. An independent body possessing investigatory powers to look into cases of disappearance, torture and extra judicial killing must be established.

Equally, the imperative need for a witness protection system has been emphasized. If these two requirements are put into place and the legal system is found to be credible in terms of examining and delivering justice, both to the accused and to the victim, the Sri Lankan State would not need to engage itself in convoluted processes of international observers or face the barrage of criticism that it presently does. This is a reality that we still have not learnt to face.

In so far as the present Commission is concerned, much depends on the extent to which the Commissioners are willing to use their mandate effectively.

Problematic sections of the mandate which give to the President, the power to exclude part of the contents of the Report if they are found to "be prejudicial to or absolutely necessary for the protection of national security, public safety or well being" are not positive indications. A general critique of the mandate has been made previously in this column and will not be re-iterated. Suffice to say however, that overwhelming public cynicism as to whether this Commission can accomplish anything will put great burdens on the Commissioners to justify their functioning. This will be effectively the last chance to determine as to whether any concrete difference can be made to decades of impunity for rights violators in Sri Lanka.

If these efforts will ultimately accomplish just a few fundamental changes; namely the setting up of a Special Prosecutors Office and the putting into place of an effective witness protection system within the context of a well functioning Human Rights Commission, (and dare we say it, a credible and independent legal/judicial system), then we should feel justly satisfied.