Sri Lankan war criminals and British justice

By Kishali Pinto Jayawardena

Seldom has such a richly feathered pigeon, (in so far as Sri Lankan war criminals are concerned and let us not be coy about the language we use), fluttered within the grasp of British justice as 'Colonel' Karuna. This week, a British court flooded with curious spectators watched Karuna Amman testifying to the fact that senior government advisors had arranged his fraudulent passport for him. Further details of the alleged deals struck or the many dozens of people allegedly authorized by Karuna to be abducted, imprisoned and 'disappeared' during his period of dubious glory in this country will emerge in the months to come and hopefully to bring him to trial on far more serious charges than identity fraud.

The Abduction and Disappearance of Professor Raveendranath

It must be recalled that Karuna's TMVP faction had been credibly implicated in, among others, the abduction and disappearance of Prof. S. Raveendranath, former Vice Chancellor of the Eastern University, Sri Lanka (EUSL). To recall briefly, Prof. Raveendranath was abducted in mid December while attending a science forum at an auditorium situated in a high security zone in Colombo. Prior to his abduction, unidentified gunmen demanding his resignation had kidnapped the Dean of the Faculty of Arts of EUSL, Dr. Bala Sugamar who was released only after Professor Raveendranath signified his readiness to resign.

Though Prof Raveendranath tendered his resignation on 2nd of October 2006, this was accepted by the University Grants Commission only on 19th January 2007 and it was in between these two events that he was abducted. Deaths threats attributed to members of the Karuna faction had plagued him during the period before his abduction. While there is little doubt now as to the demise of this academic respected by his peers and loved by his students, an official version of what had happened to him has never been released up to date. The authorities have shown little interest in pursuing investigations into the case after the initial flurry and promises of effective inquiry.

The Long Reach of International Law

Karuna's current dilemma is a good warning for his one time enthusiastic mentor, the LTTE's Prabhakaran. Indeed, the warning about the long arm of international justice applies equally well to members of the Sri Lankan security forces, the police and their commanders who engage in persistent and systematic breaches of the laws of war and humanitarian norms. In each case, it is not the lackadaisical reach of the domestic legal system that they should keep in mind, (this same legal system that has allowed perpetrators to escape unpunished on all but the rarest of occasions and is consequently treated by them with scant disregard), but the international legal system that prescribes universal jurisdiction to prosecute and punish for war crimes. Whereas the relatively softer sanction of not authorizing entry to their countries is now being implemented fairly rigorously by a number of embassies in respect of individuals implicated in grave human rights violations, the actual bringing to trial and prosecution of these persons will be a welcome development.

Lack of Effective Domestic Systems of Governance

One need not traverse far to explain as to why this is so. There is now absolutely no doubt that our domestic systems are wholly incapable of delivering any effective measure of justice. This is notwithstanding the one or two judgments delivered in recent months by the Supreme Court that have endeavoured to restrain an administration fittingly castigated as being 'blind' and which judgments have been (boringly and predictably) used to good propaganda effect by the Sri Lanka mission in Geneva and elsewhere. This same lack of clear sightedness characterizes efforts made by government apologists to explain the reason for the non -constitution of the Constitutional Council in terms of the 17th Amendment, as being the fault of the parliamentarians belonging to the smaller parties to agree on a nominee and the consequent fault of the Speaker to compel them to come to a consensus.

In other words, the fault of the country's Executive President for making his own appointments directly to the constitutional commissions rather than using his executive powers more beneficially to give effect to the spirit of the 17th Amendment by filling the vacancies in the Council as pressed for by a number of concerned jurists at that time, is conveniently bypassed. The argument (made by the then Attorney General) that all the appointments should be made at once or that the Council cannot function with one vacancy, is a constitutional argument and could have been resolved by the Supreme Court. This is indeed, what would have happened in a saner jurisdiction with a publicly accountable President, a conscientious Speaker and committed parliamentarians rather than allow such a puerile question to corrode the working of a constitutional amendment that was hailed at the time of its passing for restoring accountable governance.

Immediate Establishment of the Constitutional Council

In any event, I wonder as to what these government apologists have to say now, given that the majority of the minority parties have, in fact, agreed upon a joint nomination and the Jathika Hela Urumaya (after some unconscionably weak humming and hawing about 'process' and 'consultation'), has apparently yielded to wiser counsel agreeing to the choice of the joint nominee. Regardless of the JHU position, the fact is that the majority of the smaller political parties have now chosen their nominee. The ball is now (as common parlance goes) firmly and squarely in the court of the Executive President and his actions in that regard will either justify what has been said about this so called 'constitutional crisis' all along or will exonerate him. But the studied silence emanating from the office of the Presidency testifies to the obduracy of President Rajapaksa in making sure that the CC will not come into being. It may accordingly be maintained that continuing failure to take the necessary steps as mandated by the 17th Amendment to the Constitution, amounts to intentional violation of the Constitution.

Incidentally, it may be also said that neither the Janatha Vimukthi Peramuna (JVP) nor the JHU can afford to take high ground on this issue; in the first instance, it was the JVP itself that was blocking the nomination of a consensus candidate without making the least effort to arrive at some agreement with the other political parties. Now, the party attitude appears to have changed, perhaps out of an admirable desire to have yet another reason to accuse the government of bad governance. For that matter, the main opposition, United National Party can also ill afford to adopt a sanctimonious attitude as its front benchers exhibited a complete lack of concern regarding the proper implementation of the 17th Amendment in the past year or more. It is only now that the UNP is stressing the importance of the reactivation of the CC and the constitution of the Elections Commission in the context of the future polls in the East.

Dysfunctional Criminal Justice Process

This same dysfunction characterizes the country's criminal justice process in so far as the trials of perpetrators of human rights violations are concerned. While prosecutions themselves are few, those that do go to court seldom result in a positive conviction. Research studies have shown that certain patterns predominate in these prosecutions; for example, the fact that the accused (invariably soldiers or the police) are released on bail almost immediately after being charged, the extremely long delay in the trials, the extreme intimidation of witnesses and the holding of the trial in a place of request of the accused.

This dysfunctional state of the law is evidenced, as this column has pointed out in the past, equally in relation to crimes against Tamil civilians as well as Sinhalese civilians. The brutality of the Sri Lankan State in this regard, appears to differentiate (ironically enough) only marginally against individuals based on their ethnicity. This is an acknowledgement that would serve well to bring people from the North/East to the South together to examine the manner in which our country's justice system has failed its people. In the meantime, let British justice take its course with all possible severity.