Columns

When Chilean-born author Isabel Allende wrote with consummate skill of Chile’s ‘disappeared’ under Pinochet’s dictatorship in her best-selling book, ‘Of Love and Shadows’ (1987), about the mothers who, ‘were no longer afraid and had no hesitation about placing their lives in jeopardy though life was all they had left; everything else had been taken from them,’ she was writing of conflicts past, present and future.

A tone-deaf State

She could have been writing presciently about Sri Lanka or Kashmir or anywhere else in the world racked by the agony of human beings caught in the crossfire between the State and its bitterly adversarial enemies. Uncannily similar too are the agonies of parents who died while still hoping for their sons and daughters to come home. Their pain echoes across continents and through millennia, right down to anguished lamentations to the gods for justice that never came.

Typically, the Sri Lanka State has been tone-deaf to these lamentations. A few days ago, the release of a report on the country’s ‘mass graves’ and ‘failed exhumations’ compiled by a collective of local and foreign civil society organisations reawakened much of these old – but still recurrent – nightmares. What is remarkable in that release is not so much the contents of the report which encapsulates, analyses, and reflects on decades-old documentation on Southern (Sinhalese) and Northern (Tamil) partially exhumed mass graves, numbered as being at least twenty from Mannar to Matale, but in the questions still left unanswered.

Why has Sri Lanka not yet adopted an exhumation policy on mass graves that adheres to international law and gives the affected families the right to join in and be represented? Merely affording one agency (the Office of Missing Persons, OMP), the authority to ‘initiate’ exhumations of mass graves (Section 12 (d), OMP Act) is simply not sufficient. Section 12 (d) is perhaps the only unique feature of the OMP Act which established a body that was otherwise, cannily not given the power to prosecute extraordinary crimes of the ‘disappeared’ thereby effectively depriving it of much of its power at the outset.

Confusion worse confounded

In terms of Section 12 (d), the OMP may ‘apply to the appropriate Magistrate’s Court having territorial jurisdiction, for an order of Court to carry out an excavation and/or exhumation of suspected grave sites.’ The OMP is also mandated to act as an observer at ‘such excavation or exhumation, and at other proceedings, pursuant to the same.’ Notably, this power was exercised in relation to the Mannar mass graves in 2019 but despite a blitz of publicity at the time, disputes over the carbon dating of selected remains tied the investigations up in knots.

One report from a lab in the United States concluded that the remains belong to an age-long predating conflict between the State and militants in that area. However, family members of the Mannar ‘disappeared’ contested the authenticity of the samples sent for testing. Four years later, the Mannar hearings still wearily drag on with little results. All this speaks to a state of confusion worse confounded. One concrete indication of the Government’s will to bring about ‘truth and reconciliation’ would be to put an end to these frenzied patterns of ‘mass graves’ accidentally popping up, most often during construction.

Throw into that mix, painfully delayed forensic reports, contesting claims of carbon dating by scientists and the usual ‘politicisation’ or ‘internationalisation’ of the exhumations and we have an unhappy result that offers no solace to the victims. For how much longer should these ‘graves’ haunt the national conscience? From the Disappearances Commissions in the nineteen nineties, to the Lessons Learnt and Reconciliation Commission (LLRC) decades later, the same recommendations to address and rectify Sri Lanka’s pattern of state impunity for extraordinary human rights violations keep repeating themselves.

What binds a common absence of justice

The reports as well as other studies document thousands of cases in which a meticulous process of undermining the law is recorded. At each turn, the operation of the criminal justice law in which lies the only hope to bring closure to these extraordinary crimes, was subverted. This ranged from the complicity of the Office of the Attorney General in mishandling prosecutions, transferring Magistrates hearing the inquiries, and preventing family members of victims from being represented, to pardons being conferred by the Office of the President on convicted killers.

Indeed, as abuses of the law became commonplace, the very meaning of the Rule of Law was reduced to a nonsensical notion. Whether it was ‘extraordinary crimes’ during conflict or ‘ordinary crimes’ during ‘peace’ (viz; high corruption), the law simply ceased to work properly. Therein, we see cause and effect in play, the impact that the deliberate degrading of a centuries-old legal system has had on precipitating the economic crisis. Finally, those who sat on ‘politically captured’ centres of fiscal and monetary policy in Colombo, did not demur or dissent publicly before Sri Lanka’s foreign exchange reserves dwindled to zero.

This was while the nation was fed lies by suited criminals masquerading as Governors of the Bank and experts in monetary policy. In all of this, we too had a part to play as much as we too, as citizens stayed quiet when mass killings in the South or the North occurred. In the end result, the safety of none was secured. This is what binds the lack of justice for killings of civilians during the so-called Southern ‘insurgency’ and Northern ‘terrorism’ alike though that fact is often missed in blinkered attempts to ‘limit’ victimhood to one segment of the Sri Lankan citizenry or the other.

A common struggle for justice

In fact, the joining of common struggles for justice for the ‘disappeared’ from Point Pedro to Dondra may have been a powerful point of pressure on all Sri Lankan Governments, rather than divisions along race and ethnicity. Above all, the focal point of attack should have been the proper operation of the law to bring killers to justice in emblematic cases such as the Mutur killings of aid workers and the Trincomalee killings of students. Instead, we had the famous four prongs of a transitional justice mechanism of the ‘yahapalanaya’ Government (2015-2019).

However, none of those ‘prongs’ actually brought home any result. Currently, Sri Lanka is on the cusp of yet another ‘truth and reconciliation’ (TRC) exercise. We have been told that the Cabinet of Ministers has approved a joint-Cabinet memorandum on a TRC mechanism. Supposedly this has been ‘inspired’ by South Africa’s Truth and Reconciliation Commission though in what precise parts, this ‘inspiration’ has come about is still uncertain.

But several unwelcome truths will not ring cheerily in the ears of the Minister of Justice and the Minister of Foreign Affairs who, we are again informed, had ‘studied’ the South African experiment on a recent visit. It can safely be predicted that a TRC will not be welcomed with much enthusiasm by the ‘victims’ for whom this has been proposed. This is as much as in 2016, the OMP Act was underwhelming and predicted to turn out as an eye wash (see ‘Cheers in Colombo, Apathy in Jaffna, Focus on Rights, August 28, 2016) due to inherent failings in the law.

The focus on investigations
and prosecutions

This prediction proved to be accurate on all fours, seven years later. And so we return to the point of investigations and prosecutions as we must. An often missed reference to this lies in the interim report of the Commission of Inquiry into Disappearances in the Western Zone (December 1997). The Commission issued two crisp warnings to the Government. Firstly, state agencies must dismantle ‘alternative command structures’ which committed extraordinary abuses at political will.

Secondly, the jurisdiction to bring ‘justice’ to victims must remain with the courts. In other words, temporary ‘reconciliation’ measures can only work up to a limited extent.

This was where the focus should have been then. It remains the same now.