Focus on Rights

An ill deserved pat on the back

By Kishali Pinto Jayawardena

One cannot help but be bewildered by Foreign Minister Lakshman Kadirgamar's claim to the visiting UN Working Group on Enforced or Involuntary Disappearances last week, that there has been a "drastic reduction" in the incidence of disappearances since the Kumaratunga administration assumed office.

Taken further, the Foreign Minister's statement reads even more fantastically. That the Kumaratunga administration's directives to the armed forces to distinguish between the LTTE and the people, to act within the framework of the law and to ensure that no person would be allowed to act with impunity, had been the direct driving force behind this "drastic reduction". Minister Kadirgamar indeed admits only one exception to this pattern of "drastic reduction" cited as a "brief period" in mid 1996 in the Jaffna peninsula, which the government was "deeply concerned about and was committed to get to the bottom of, as evidenced by the Krishanthi Kumarasamy case and the Chemmani case".

While this self- congratulatory pat on the back must be treated with the indulgence it deserves, what precisely are the statements that we are making here? The Foreign Minister's claim to a numerical superiority over the UNP government of the previous era, in the totting up of the number of disappearances recorded is, of course, an idle exercise in a post 1994 "non JVP" era. Quite apart from this, it begs a number of questions. For instance, can this "deep concern" over the 600 disappearances in Jaffna, estimated to be the highest in the country since 1991, be satisfied by a mere citation of the Kumarasamy case and the Chemmani investigations, strategically important though they may be?

In the first place, the Jaffna disappearances were not confined to 1996 but was also evident in the succeeding years, as in 1997 when 100 cases of disappearances were reported mainly from Jaffna, Batticaloa, Mannar and Kilinochchi.

It was in 1997 that President Kumaratunga promised relatives of those 'disappeared" that a Commission of persons comprising representatives from the Tamil community, legal personalities, members of the clergy and respected members of society (not including politicians) would be appointed to look into these disappearances. Up to date, no such Commission has been appointed and the possibility is that with the recent negation of the Chemmani "mass" graves, the whole question of accountability for these disappearances would also be allowed to lapse.

Again, the Foreign Minister's claim is that impunity has been denied for errant security forces acting under the PTA and ER, on the initiative of the government. On the contrary however, problematic provisions relating to the absence of any or minimum safeguards relating to conditions of detention, admissibility of police confessions to senior police officers, and doing away with the normal procedure in relation to deaths in custody in respect of inquests, postmortem examinations, disposal of bodies and judicial inquiry remain.

Though indictments have been filed against an estimated 486 officers in connection with disappearances of individuals, the process of bringing these indictments have been agonisingly slow and have not had any evident deterrent effect on the forces. More indeed has been accomplished by the single-handed efforts of the Supreme Court in dealing with cases of unlawful arrest and detention brought before it. The Court has laid down a strict regulation of procedures to be followed in the making of detention orders, the keeping of persons in authorised places of detention and powers of search consequent to arrest. Findings by the Supreme Court against particular officers have however not been taken further at departmental level. On the other hand, findings made by Presidential Commissions of Inquiry appointed to look into politically motivated killings of the previous regime have led to disciplinary action against selected police officers, resulting ironically in those police officers successfully challenging those findings in court on the basis that they had been denied fair treatment.

Meanwhile, the National Human Rights Commission is, as customary, put forward by the Foreign Minister as an example of the bona fides of the government. Again, this begs a fundamental question about the efficacy of the Commission.

As Amnesty International commented somewhat diplomatically in its 1999 report on "Sri Lanka; Torture in Custody", "the HRC has been slow to make a significant impact on the human rights situation in the country". In reality, the HRC has proved lamentably incapable of fulfilling its role as a powerful rights monitor.

Basic safeguards provided by the Human Rights Commission Law protecting civilians against arbitrary action of state officers are not adequately policed by the Commission.

One significant example is the rule that the Commission be notified of all arrests within 48 hours which is rarely observed, while no prosecutions or disciplinary action has been taken against officers violating this rule. The Commission itself has yet to make its first annual report public. In April 1999, the Government announced its intention of increasing the budget of the HRC from Rs 14,235 million to Rupees 25.1 million "to support the planned expansion of scope, intensity and the focus of the Commission's activities".

Irrespective of this projected expansion of its functioning, whether the Commission will prove its ambitious mandate remains questionable.

Apart from the above, the bypassing of the recommendations of the three commissions appointed to look into pre 1991 disappearances is unequivocally the most powerful reason why this trumpeted commitment of the Kumaratunga administration in putting into effect a new culture of human rights protection is suspect.

The reports of the three Commissions suggested a number of welfare measures for the kith and kin of the disappeared. The report of the Commission on the Western, Southern and Sabaragamuwa Provinces in particular included a number of very practical relief measures relating to the emotional and economic rehabilitation of the spouses and children of those affected, payment of adequate compensation, the release of monies in frozen accounts and measures to minimise problems that relatives face when trying to reclaim land lost during that time.

The Commission made the rather provocative suggestion that a new tax similar to the defence levy be imposed to raise sufficient funds for the payment of compensation.

In addition, it was recommended that a panel of lay visitors be established for each area and persons on this panel be given the authority to speak to detainees, check the conditions of detention and coordinate with national human rights groups. Such a step, it was suggested, would re-establish community based forces and procedures that the citizen can turn to when faced with misuse of state power. For this same purpose, the setting up of a Citizens Advisory Bureau was recommended to help bereaved persons solve problems such as EPF dues, obtaining death certificates, the settlement of property matters and so on.

The Commission further suggested that a Wall of Reconciliation be erected whereon would be inscribed the names of all those who died in that period in an acknowledgment by the State that what had happened to these people was wrong, regardless of whichever government committed the abuses.

None of these welfare cum reconciliatory measures have been implemented so far. Payment of compensation to those affected has been halting and intermittent amidst complaints of insufficient funds and reports that the payments have not been even handed due to political influence. Up to late 1997, only some 5,991 claims were settled while applications for compensation in this respect reportedly numbered 15,995.

The whole problem raises some very crucial questions. While it is true that penal action against police officers mentioned in these reports have to be undertaken cautiously and on the basis of sufficient evidence against them, the non implementation of basic welfare measures that would have lessened the continuing agony of a traumatised "ghost population" in the South is almost impossible to rationalise.

In the end result, the Kumaratunga administration has to be undoubtedly given its due in terms of individual markers of accountability such as the Kumarasamy case and the Chemmani investigations. However, its sincerity in terms of erasing a prevailing climate of impunity for disappearances in Sri Lanka remains a long way yet from being realised.

Tele-war to defeat Prabha's Eelam

By Kumbakarana

When the Pope visited Sri Lanka a few years ago, large numbers of Jaffna Catholics arrived in Colombo.

A young nun told the media: "We thought that Colombo was a city which was a little bigger than Jaffna and we thought that Colombo was a heap of rubble, after the destruction wreaked on the city by the Tigers. But this is a heaven.

The godfathers of Tamil racism did think a few years ago that after a prolonged war of several years, the country's economy would disintegrate, and the capital city would lie in ruins. But despite a devastating war of nearly three decades, sabotage and ethnic cleansing, Sri Lanka has managed to survive and develop.

But in Jaffna in place of the beautiful dream of Eelam, one only sees a few old building, heaps of rubble with residents living in a backward backyard. Except for those who have migrated to the south of Sri Lanka and to foreign lands for many Jaffna people Eelam life, Eelam if it ever materialises will be built on a cemetery.

According to Tamil Nadu watchers, Dravidian recism has become much more subdued in this southern Indian state where it once thrived. It has become a mixed concept of 'Hindutva' and globalisation, and leading to a retreat from the ideology of Dravida Nadu. In Sri Lanka Hindu philosophy and popular culture have had a considerable impact on Tamil separatism.

The main reasons for Jaffna's youth joining the LTTE were strong family restrictions and the suffering caused under the caste system but, within the LTTE the caste system prevails to a much lesser degree.

The Tamil Congress, the Federal Party, the TULF revolved round the Vellala community while the LTTE drew its membership from castes which were non-Vellala. According to some reports, the massacre of TELO members by the LTTE was due to Sabaratnam's high caste.

Besides the LTTE is said to have librated the Tamil woman who was discriminated against in the Tamil society. Men and women are allowed to mix freely. What we usually hear are reports about strict rules governing sexual relations between LTTE male and female cadres.

In an LTTE documentary, 'Freedom Birds,' LTTE woman leader Akila holds up two cyanide capsules proudly and says that Tamil women require two capsules because they place a high value equally on their lives and their chastity. But a military officer said that they found condoms in the side pockets of some LTTE female cadres who were killed.

In popular Tamil cinema what is projected is the victorious hero. Fans are ready even to lay down their lives if they want to imitate their film heroes.

The depiction of the deaths of Black Tigers in video films is an imitation of popular Tamil films. Film makers use such gimmicks as focusing the camera slowly on the dead body of the Sea Tiger, from his feet right up along the length of his body and lighting it up brightly, and exaggerating its size. Tamil youth who want to imitate MGR or Rajini Kanth now have the Black Tigers. People who would have died unknown deaths now have the opportunity to die before thousands of TV viewers.

A photo journalist who takes shots of semi-clad women says that large numbers of southern women are willing to come forward, for no payment at all, to satisfy their overwhelming vanity and urge for publicity.

Tamil young men and women come forward for the same reason - to get symbolic recognition within their society by laying down their lives for a cause. What Tamil youth have to realize is that in order to be recognised one does not have to pay the highest price by dying.

There are nine TV channels, thirteen radio services, over one hundred newspapers, in the country and they are growing all the time in numbers. The problem is that these winds are blowing towards the Wanni, but they have been sealed off from Jaffna by Prabhakaran. But Tamils in Colombo, Melbourne, Toronto, London etc., enjoy this commercial culture to the maximum.

The youth of Chennai have been enjoying the fruits of the open economy for five years. This lesson has to be learnt in the Wanni and Jaffna. To defeat Prabhakaran the weapon is not the devolution of power but eighteen TV channels aimed at the Wanni and Jaffna. Jaffna youth will decide then, whether they will live in 18th century Jaffna or join Colombo to live in the 21st century.