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Whether in regard to war crimes, gross corruption or economic white collar crimes, unearthing accountability in Sri Lanka is somewhat akin to peeling away multiple layers of a rotten onion. First, the stench overwhelms you. Secondly, each layer is correspondingly more decayed than the previous. Finally, one is left with the core which is but a revolting mass of pulpy nothingness, to be consigned to the dustbin.

Another ‘showpiece’ transitional justice body?

These less than propitious thoughts at the dawn of a less than propitious New Year are compelled by the necessary (albeit reluctant) scrutiny of the Bill seeking to establish a so-called ‘Commission for Truth, Unity and Reconciliation.’ Essentially, if a private entity with more money than commonsense wished to establish bodies with grievously overlapping mandates such as an Office on Missing Persons (OMP), an Office for National Unity and Reconciliation and now, a Commission on those same lines, that is not our business.

If so, we may hold our tongues and say ‘good luck’ to that process. But the problem is when the State spearheads these efforts, when ‘showpiece’ bodies are touted as being what Sri Lankan victims have asked for and when public funds of no inconsiderable amount are expended. Finally, the ‘mountain in labour gives birth to a mouse,’ which must inevitably be the case. And then, where are we? Worse off than before.

Why is a ‘mouse’ so inevitable, someone might ask? In July last year, I answered that question in a caustic reflection as apt now as it was then (‘Go to the law, not another truth and reconciliation charade’, Focus on Rights, July 2nd 2023). Pointing to thousands of cases where the criminal justice law had been subverted to prevent accountability for extraordinary human rights violations, it was reminded that the priority is to correct systemic failings.

Political ‘Godfathers’ of crime

That included state prosecutors mishandling prosecutions in regard to ‘torture’ and other grave crimes, Magistrates hearing inquiries being transferred, family members of victims not allowed to be represented and pardons conferred by the Office of the President on convicted perpetrators of state-sanctioned murders of civilians. Systemic breakdowns in accountability are common from the South to the North.

Abusive and deeply entrenched state security and police structures operate at their whim and fancy. In fact, impunity has only increased under the command of an Acting Inspector General of Police who continues in his post despite a Supreme Court judgement holding him directly responsible for torture in custody. An unholy nexus between police abusers and politicians is very much out in the open, in the highly mis-titled ‘Yukthiya’ (‘Justice’) operation spearheaded by Public Security Minister Tiran Alles and Acting IGP Deshabandu Tennekoon.

As the Bar Association of Sri Lankan recently cautioned with justifiable alarm, ‘arbitrary arrests, police raids without proper warrants and extrajudicial killings… not only undermine the bedrock principles of justice but also erode public confidence in the integrity of law enforcement agencies.’ That is, if any measure of ‘public confidence’ still exists in the ‘integrity’ of the law enforcement process, we must add. The warning that even criminals have the right to due process had been echoed earlier by the Supreme Court in relation to the Acting IGP (Weheragedera Ranjith Sumangala v Bandara, Police Officer and others, SCM 14.12.2023).

The Court’s warning has fallen on deaf ears

The Court advised the Department of the Police that, ‘Even reconvicted criminals of the most notorious kind are entitled to their fundamental rights.’ All this is, of course, familiar stuff. The steps contingent to an arrest in observing due process, had not been followed in the arrest and torture of an ex-soldier implicated to incidents of theft. This led to the Court holding that a rights violation had been committed. Meanwhile the Bench’s observation that ‘while findings of fundamental rights are ample, the wrongdoers – specially the big fish in the pond -  are seldom held duly accountable,’ seems (unfortunately) to be apposite in the Weheragedera case as well.

For the decision seems scarcely to have ruffled the feathers of the Acting IGP in question, his patron Minister or the ruling establishment, for that matter. The National Police Commission has been dithering in taking ‘appropriate disciplinary action’ against those implicated. Public appeals to the Attorney General to commence action under the criminal law have been met with a deafening silence.

Replicate this instance by a thousand fold and we have the ‘rotten onion’ of state accountability, as much for the majority as for the minorities. Systemic subversion of the legal system is why no prosecution for emblematic human rights violation has been successful in recent decades. How can that not be the case when the political establishment (Government as well as Opposition) lack the requisite will?

Painful insult to obvious injury

For victims of minority ethnicity, this is punishment upon punishment. That goes beyond the police arresting protestors of Tamil ethnicity heckling the President on his visit to Jaffna this week. That is classic state ‘over-reach,’ predictable and slightly ridiculous. But the State’s recourse to ‘transitional justice’ bodies without ‘justice’ speaks to systemic manipulation of the law to entrench inequity. And while it may be well and good to cynically ‘engineer’ these mechanisms, the vexed question of state accountability will always surface.

The Bill on ‘Truth, Unity and Reconciliation’ envisages a gargantuan body of not ‘less than seven’ and ‘not more than twenty one members.’ Appointment/removal of members by the President is through ‘recommendations/concurrence’ of the Constitutional Council (CC). Certainly a degree of justifiable scepticism arises in the degree of confidence that can be placed in that safeguard, given the CC’s approval of a controversial Acting IGP.

That apart, what the ‘Truth Commission’ has been tasked to do is much of the ‘same old, same old.’ Its mandate is to investigate, inquire and make recommendations in regard to inter alia, violations of human rights, ‘caused in the course of, or reasonably connected to or consequent to the conflict that took place in the Northern and Eastern provinces during the period 1983-2009 or iots aftermath.’

Placating ‘international critics’ at the expense of victims

This hugely long period of time, not only duplicates the work of previous Commissions (this body is empowered to examine those recommendations as well) but makes its task that much more complicated. Its powers are considerable, including ‘search and inspection’ under a magisterial search warrant. The Commission will also have the power to excavate or observe excavations of suspected sites of mass graves, similar to the authority given to the OMP.

But the nub of the Bill  lies in clause 16 (2) where the Attorney General is empowered to institute criminal proceedings based on material collected during a Commission process. Specifically, the Commission’s recommendations shall not be ‘determinant’ of civil or criminal liability, the preceding sub-clause details. So, what else is new? This is exactly what happened with previous such bodies, exactly where the exercise failed and exactly why we talked disparagingly about the ‘mountain and the mouse.’

The mistake lies in even expecting that things may be different, as for example, that the Office of a Special Prosecutor may have been empowered to handle these cases. The challenges of the Commission in addressing state accountability remain formidable. Would victims not be better off without these bodies that the Government parades in Geneva, New York and elsewhere to placate its critics?

At least, the state coffers will not be deprived of scarce resources diverted towards  largely redundant exercises.