Solving Impunity: Oppressive authoritarianism haunts Sri Lankan society

Solving Impunity: Oppressive authoritarianism haunts Sri Lankan society

Media Minister Keheliya Rambukwella recently announced that the government plans to remove emergency laws by the end of this year. For most of the past four decades, the country has been ruled under emergency laws, which gives the security forces extraordinary powers over citizens and puts them in a position of vulnerability in any interaction. This concession being made to democracy may be due to mounting international pressure on the government on account of its shortcomings in meeting international standards of human rights.

Last year, the European Union denied Sri Lanka the GSP Plus tariff concession made available to a limited number of developing countries because of the country’s less than stellar human rights record. Western countries in particular have been calling on the Sri Lankan government to completely remove the emergency laws, especially since the war ended more than two years ago. At that time the government relaxed some of the emergency laws which had given the security forces wide powers to arrest and detain people without any charges. This move coincided with the decision making process in the EU regarding the trade concessions to Sri Lanka.

Some government ministers went to the extent of saying that over 75 percent of the emergency laws had been repealed, but this was probably to impress the international community more than the people in Sri Lanka, who did not recognize the difference. The government spokesperson’s recent statement about a complete withdrawal of the emergency regulations may reflect a tacit government admission of this reality. The emergency regulations have been used by successive governments since 1971 aiming to curb unrest. But the present government has even continued to use emergency laws during election periods, which previous governments shied away from.

Unfortunately, the emergency laws are not the only weapon in the government’s arsenal of repressive laws. The Prevention of Terrorism Act continues to remain in the law books, and despite the comprehensive defeat of terrorism in the country, there has been no action or even talk about repealing that draconian law. Despite this elephant in the room, it is hoped that the end of emergency law, promised by a government spokes-person, could open up a new chapter in Sri Lanka’s governance. Indeed, following the repeal of the emergency laws there will be a need to provide the security forces with special training to re-educate them about their proper role in a peace-time democracy.

Continuing Impunity

The question is: “how seriously will the government take the promise that its spokesperson has made?” When the government announced that it was relaxing emergency laws last year, the EU decision on whether or not to grant the GSP Plus tariff concession was still to be taken. The relaxation of the emergency laws was seen as a response to that pressure. But there was hardly any change visible on the ground. The situation of uncertainty with respect to the government’s handling of any opposition has continued unabated. The way in which the trade union action at the Free Trade Zone was suppressed a in July of 2011 by police firing live bullets at protesting workers was unacceptable. At the present time the government is under pressure due to the issue of war crimes and the unrelenting exposure being given by UK Channel 4 television to horrific scenes that purport to be from the last days of the war. It is also ironic that the government announcement of a possible end to the emergency laws was followed a few days later by the brutal attack on a senior journalist in Jaffna.

The news editor of the Uthayan newspaper, Gnanasundaram Kuganathan, is now in critical condition in the intensive care unit of Jaffna Hospital with head injuries due to blows from iron bars. The victim had previously been targeted by assailants who stormed the Uthayan office in May 2006, asked for him by name and, having failed to find him, killed two other staff members. He only recently started residing outside of the Uthayan office, believing that the security climate in Jaffna had improved, and impunity no longer reigned. He antici-pated a normal life, but was mistaken. The attack on him will remind all journalists of what their fate could be if they cross an unknown line and anger those in positions of power.

Once again the attack on a journalist, in which the assailants have escaped, has taken place in close proximity to a military sentry point on a main road in Jaffna which has a heavy presence of military personnel. This is reminiscent of the slaying of Sunday Leader editor Lasantha Wickrematunge on a main road in Colombo near a military checkpoint in 2009, and of the arson attack on Lanka E News in 2010. The failure of the law enforcement authorities to apprehend the assailants is an indictment of the regime of law enforcement that is armed with emergency powers but still fails to protect citizens, especially media persons and those critical of the government.

What is particularly deplorable about these attacks on journalists is the impunity with which they are carried out. A code of silence, a facade of investigations, and a failure to prosecute suspects are the main characteristics of this impunity. None of the killings or attacks on media institutions have been solved. This has led to a climate of fear and self-censorship within journalists and the larger society. This is not democracy where the fundamental freedoms guaranteed by the Constitution are protected by the Government. It is therefore incumbent on the government to take immediate and convincing steps to protect the media in order to safeguard the democratic rights of the people.

Necessary Action

Having emergency laws and even the Prevention of Terrorism Act will not, by themselves, prevent lawless acts from taking place. What is necessary is for the police and security forces to do their jobs properly and not be hamstrung as a result of political interference. If the government wishes to convince the international community and opposition parties within the country to stop being critical of it on account of failures in human rights protection and good governance, it will need to improve the system of checks and balances and institutional integrity. Institutions that are without integrity cannot do their duty.

The failure of the law enforcement authorities when journalists are attacked is evidence of a wider governmental failure. The mere repeal of emergency laws without improving the independence and integrity of law enforcement agencies will not lead to the positive changes that the international community and human rights watchdogs expect from the government. Such half hearted actions will not do the government much good in terms of projecting itself as one that practices the principles of good governance. There is however a more sincere option for the government to pursue, requiring the government to engage in power sharing with the opposition, something it has shown itself loath to do up to now.

The 17th Amendment of 2001 vested the power of appointment of positions in the state apparatus that ensure good governance in a cross party Constitutional Council to ensure a system of checks and balances. However, this commendable constitutional legislation was negated by the 18th Amendment of 2010. This has handed over to the President the power to appoint a Chief Justice, the chairpersons of the Election Commission, Public Service Commission, National Police Commission, among others. It further concentrated power in the Presidency. If it hopes to convince the world that it is serious about charting a new path to good governance, the government needs to reconsider its nullification of the 17th Amendment to the constitution by the 18th Amendment.

There are two narratives of the end phase of the war that are battling for dominance. The first is that of the Sri Lankan government. This narrative emphasizes the victory over the LTTE and terrorism, and the securing of the country’s unity and sovereignty. It also asserts that the war was conducted according to international law with a policy of minimizing civilian casualties. The competing narrative is the account of the expert panel appointed by the UN secretary general, which comprises a severe indictment of the Sri Lankan government’s lack of adherence to international norms in the conduct of the war. This report has drawn on the information available within the UN system and also the reports of human rights organizations.

The UN panel report, also known as the Darusman report in deference to its chairman, is over 200 pages in length. It was issued to the public in March this year. Although well written, not many would wish to labor many hours to read it unless especially motivated as students of the Sri Lankan conflict or as advocates of a position. This is not the case with the UK Channel 4 video titled ‘Sri Lanka’s Killing Fields’ that made its appearance in June this year. It is a one hour documentary, and provides a graphic account of what is presented as the last days of the war. It is readily accessible on the internet to those who wish to see it, if they are prepared to brave its warning that it contains scenes that could be very disturbing.

The Sri Lankan government’s response to the UN expert panel report and to the UK Channel 4 video has, from its inception, taken the form of denials and denunciations. The material in them is described as fabricated, biased and ill motivated by a desire for revenge at the defeat of the LTTE. The sources of information are also accused of being tainted, being either NGOs or Tamil Diaspora. As a result, the notion of an international conspiracy has a wide acceptance within Sri Lanka.

In such a situation of opposing versions of the same event, the solution would seem to be a third report of an independent group. The government has, however, sidestepped the increasingly vociferous international demand for an independent international investigation into the alleged human rights violations and war crimes by referring to the Lessons Learnt and Reconciliation Commission it has appointed.

Incidentally, an op-ed article in the New

York Times in June 2011 titled “The Silence of Sri Lanka” by the former foreign ministers David Miliband of the United Kingdom and Bernard Kouchner of France may have faded from the memory of most Sri Lankans. But it remains a potent reminder of the powerful forces arrayed against the Sri Lankan government leadership who stand accused of condoning or even commissioning war crimes in the last phase of Sri Lanka’s thirty year war. The international pressure on the government on human rights issues is continuing without respite.

At the time of the visit by David Miliband and Bernard Kouchner, the capitals of European countries in which there was a significant number of Tamils were having massive street protests. A significant protest was staged in Toronto, Canada as well. Along with the activists in the Tamil Diaspora, the LTTE leadership believed that the protests, which were bringing traffic to a halt in those cities, would prompt the required international intervention. But it was a gross miscalculation on their part. Both the LTTE leadership and the Tamil Diaspora misled each other as to their real strength. The LTTE could not hold out any more against the government military force, and the Tamil Diaspora could not deliver anything more than the visit by David Miliband and Bernard Kouchner.

The high powered visit that took place two and a half years ago ended without any positive result. Now the duo write after the decimation of the LTTE and the large numbers of civilians who died in that last phase of war that “The integrity of the international system in addressing human rights abuses is rightly under scrutiny as never before…We therefore call on our governments to set a deadline soon for satisfactory response from the Sri Lankan government, and if that is not forthcoming to initiate the international arrangements recommended by the report.” The report they are referring to is the Report of the Expert Panel appointed by the UN Secretary General on Accountability in Sri Lanka.

Polarization

The report by the Expert Panel set up by UN Secretary General Ban Ki-Moon has sharply polarized Sri Lankan society and is likely to do so even more unless the government takes remedial action. The report on alleged violations of human rights and international humani-tarian law in the last phase of the country’s separatist war was totally rejected by the government as being biased and factually inaccurate and failing to give adequate recognition to the role played by the LTTE in the tragedy that occurred. On the issue of the war and post-war developments, the government has repeatedly obtained the strong endorsement of the electorate, and especially of the Sinhalese majority. In media commentary as well as private conversation there is a great deal of emotion. The statement of President Mahinda Rajapaksa that he is prepared for the “electric chair” has deeply anguished many of his supporters.

On the other hand, the report received strong endorsement from the Tamil National Alliance, which is the political party that represents the majority of the Tamil people of the north and east. In its statement the TNA said that the report “confirms the truth of what happened to unarmed Tamil civilians in the course of the recently concluded war and is an irrefutable confirmation of the accounts of the events as reported by us to Parliament as and when they occurred.” The TNA’s full endorsement of the Expert Panel report was unexpected. Previous statements issued by TNA spokespersons were more cautious in their recognition that full scale political confrontation was not in the interests of the Tamil people.

The fact that the TNA has thrown caution to the winds with regard to the Expert Panel report suggests that there was a renewed sense of confidence that had come into it with regard to its bargaining strength. After the total military liquidation of the LTTE, it seemed that the government was overwhelmingly powerful and had no need to consider meeting Tamil demands even half way. The fact that the UN Secretary General had taken up a position that vindicated their sense of grievance would be empowering to the TNA, which up to now has been a marginal actor in Sri Lanka’s majority-based politics. However, this hardening of attitudes on either side of the ethnic divide is not a positive development if conflict resolution is to be the outcome. The international community that seeks to uphold international standards of human rights also needs to be mindful of the polarizing consequences within Sri Lanka of its own actions.

Government Reply

The report titled “Humanitarian Operation­: A Factual Analysis” and a video titled “Lies Agreed Upon” has been the government’s reply to the UN expert panel report and the UK Channel 4 video. The government’s report and video provide an opposite perspective to that found in the UN expert panel report and the Channel 4 video. They focus on the LTTE and on its brutal methods. The government narrative goes back in time to cover the period in which the LTTE first engaged in acts of terrorism. It does not start where the international narrative starts from, which is the last phase of the war. As a result the government narrative provides a
context in which the ferocity of the war in its last phase can be better understood from the nature of the LTTE which held a population of over 300,000 hostages during that period.

In such a situation, where two sides proffer opposing versions of the same event, the solution would seem to be a third report of an independent group. The government has, however, sidestepped the increasingly vociferous international demand for an independent international investigation into the alleged human rights violations and war crimes by referring to the Lessons Learnt and Reconciliation Commission it has appointed. The Sri Lankan government has presented the LLRC as a legitimate and viable mechanism that precludes the need for an international investigation at this time, and even in the future. This is on the basis that international remedies are only necessary when national ones have failed. The LLRC has already issued an interim report and its final report is expected in November this year.

The recent government report also acknowledges civilian casualties but in a highly circumscribed way. It says, “The government of Sri Lanka made every effort to protect civilians in the conflict zone through the creation of safe corridors and no fire zones, and by adhering to a “zero civilian casualties” policy that had been conveyed to all troops through repeated training and operational orders. Sri Lanka also took a proactive and extensive role in delivering humanitarian assistance to these civilians before, during and after the fighting. Despite the clear intent of the government of Sri Lanka and the numerous precautions taken, it was impossible in a battle of this magnitude, against a ruthless opponent actively endangering civilians, for civilian casualties to be avoided.”

There is no doubt that the government narrative will be the one that dominates and prevails within Sri Lanka. It will prevail regardless of the content and quality of the government report and video. This is because most people within the country experienced first hand the fear of the LTTE’s brutal terrorism even if it was not inflicted directly upon them. The government report and video will further strengthen the feeling of people within the country that the international community is biased and anti-Sri Lanka in its targeting of the government. This will lead to a further hardening of anti-Western sentiment as it is generally perceived that the West, epitomized by David Miliband and Bernard Kouchner, is seeking to punish the government for ridding the country of the LTTE.

On the other hand, a section of the international community led by Western governments such as UK, US and France are taking a hard stand regarding issues of accountability for war crimes and an independent international mechanism to investigate the last phase of Sri Lanka’s war. Together with the Tamil Diaspora and international human rights organizations, they are not likely to change their positions either. So what remains are two narratives, one that dominates internationally and the other that is dominant within Sri Lanka. These two narratives are at loggerheads with each other and appear to have no meeting place. Neither of these narratives is going to be a vehicle for reconciliation in the future, as each will be fiercely resisted and debunked by the other. Ensuring peace and achieving reconciliation will require a different narrative not yet in the public domain. ■

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Jehan Perera is a Harvard scholar and Executive Director at National Peace Council of Sri Lanka.

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