The Government's logic, albeit plaintively articulated, that it had no earthly reason to attack media stations and kill journalists while the forces were winning spectacular battles on the war front, is as peculiar as it is utterly specious.
Turned on its head, this argument does the Government no good at all. It is after all, precisely after the Tiger had been driven to its lair that the calls for good governance and an end to an increasingly corrupt political administration would have become far more strident. In fact, there is a certain irresistible reasoning to this rebuttal. All this time, what we heard was the cacophonous cries of government spokesmen that the war was the reason as to why certain compromises had to be made. In effect, the argument was that there was no time for the luxuries of constitutional governance while fighting a foe as ruthless as the Tigers.
Putting the Rajapaksa administration on the defensive in 2009
And to a certain extent, this argument attracted some sympathy even among those who were by no means supporters of the present regime. The unexpressed feeling perhaps was that the Government had to be given a measure of leeway, provided that it did not engage in egregious human rights violations, to fight its war. However, trapped by its shrill rhetoric to finish the war once and for all and combined with a political strategy that inclines towards a quick election, the fall of Killinochchi brought about a state of affairs where this argument would have undoubtedly lost much of its fervor during 2009. It takes only the minimum of shrewd political analysis to figure this out after all. Regardless of whether one would agree with their oft times racy style of journalism, there is no doubt that both the MTV news stations and the Sunday Leader newspaper were among the most vocal critics of the abysmal governance record of this administration, shooting from the hip as it were, all around and with little distinction as to who is hit. Rendering them dysfunctional would have well served those who have no qualms about bleeding this country dry to enrich their own pockets.
This is, of course, merely to demonstrate that the Government would do well to stop bleating about its war victories being the reason as to why it would not have engaged in such contemptible media repression. Such arguments may be swallowed by only the blinkered of its supporters. They merely sound silly to others.
Responsibility to
investigate and apprehend belongs to the government
The question is therefore, not the shifting of blame from one quarter to another. Regardless of who the perpetrators were, the Government will stand condemned on the single issue of lack of effective, prompt and efficient investigations into these incidents as much as it stands condemned on this same basis in regard to the many other grave human rights violations that have occurred in past years. The pattern indeed, is so incredibly similar. For example if we take the killings of the seventeen aid workers of Action Contra L' Faim, it was in not affording a good investigation that led to suspicion being directed towards government forces. There again, (as is now being made by the Opposition in regard to the assassination of Lasantha Wickremetunge), the call was made - and was agreed to - for foreign forensic investigators. However, as events showed thereafter, these foreign experts were stymied at every turn; ultimately we saw the failure in regard to the very preservation of the scene of crime and the breaking of the chain of custody of evidential items crucial to the case.
Applicable norms in
international law
In international law, it must be recalled quite simply, that even where an official is acting ultra vires, the State will find itself in a position of responsibility if it provided the means or facilities to accomplish the act. Similarly, liability is laid upon a State even if the alleged perpetrators could not be identified but the State failed to engage in prompt and effective investigation. This was the principle applied even if acts of non-state actors are in issue.
Indeed, the UN Human Rights Committee has applied this principle to Sri Lanka itself in examining a complaint filed by a father from Trincomalee, whose son 'disappeared' in army custody in 1990 (see, Jegetheeswaran Sarma Case, CCPR/C/78/D/950/2000, 31/07/2003). The Committee deliberates on the interpretation of the provisions of the International Covenant on Civil and Political Rights (ICCPR) to which Sri Lanka is a signatory and the provisions of which, as Sri Lanka's Supreme Court had declared in its 2008 Reference, has been adequately reflected in our domestic law. The Committee's reasoning in this regard is by no means unusual; indeed, this is reflected by other international and regional tribunals including the Inter-American Court of Human Rights and by the European Court of Human Rights.
Concerns raised
by the IIGEP
The issue of effective investigations into grave human rights violations coupled with lack of good prosecutions was raised very succinctly by the Independent International Group of Eminent Persons (IIGEP) who, for some time, monitored the 2006 Presidential Commission of Inquiry into Grave Human Rights Violations (popularly referred to as the Udalagama Commission). The IIGEP, which comprised some of the leading international law experts in their field, was treated with disdain, humiliated by (among others), senior state law officers and finally driven out of the country for their pains.
This columnist was among the few, who at that time predicted that the 2006 Udalagama Commission would turn out to be an utter waste of colossal amounts of money, time and effort. These predictions have more than amply justified themselves with the course of time. The one positive element in this entire exercise was that the IIGEP refused to be bullied and refused to be tempted by all the irrelevancies that were sought to be whispered in their ears. They focused as they should, on Sri Lanka's investigative and prosecutorial record and insisted that this should be set right.
Drawing greater strength
in fighting for democracy
These concerns remain relevant may I say, not only to this government but all its predecessors who engaged in equally heinous human rights violations. This is what all right thinking citizens in this country must endeavour to focus on through increased awareness and a refusal to be blinded to the truth. This is a time when the fight for the revival of the 17th Amendment to the Constitution must draw greater strength and where people must also fight for a truly independent judiciary, not judges who are ruled by personal caprice and overwhelming ego to rule blatantly for the government at times when it suits them and at others, to rush pell mell, as it were, into judicial adventurism.
Resting one's hopes in this regard in political forces, including that of the opposition, will yield little as these hopes are carried aloft by opposition politicians only until they come to office. If the past has taught us some things, it is this. Until an apolitical citizenry, supported by an independent media acts in this respect, we are doomed to suffer the fate of fools. |
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