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Circus tricks to satisfy international audiences: TRC of Sri Lanka – Kishali Pinto -Jayawardena

President Ranil Wickremesinghe’s assertion during a recent interview with the French media that the Government of Sri Lanka will invite foreign jurists to ‘observe’ the sittings of the proposed Truth and Reconciliation (TRC) Commission and that therefore, ‘no one can say that it is a cover-up,’ is political satire of the most rip-roaring kind.

Circus tricks to satisfy international audiences

I say this with tongue firmly in cheek. Typically, President Wickremesinghe pulled out what would have occurred to him as a trump card before international media. But for Sri Lankans with reasonably good memories, that proclamation of ‘foreign observers’ as a bulwark to preserve the integrity of the TRC process has terrible echoes of deja vu. For this is not the first time that a Head of State has resorted to this particular circus trick to deflect pressure.

The very last example we had was in 2007 when former President Mahinda Rajapaksa invited eleven international jurists headed by former Indian Chief Justice PN Bhagwati to ‘observe’ the sittings of the Udalagama Commission of Inquiry tasked with probing sixteen human rights violations. The incidents included two of the most egregious instances of extra-judicial killings of civilians in Sri Lanka’s turbulent history of deadly conflict.

These were the two separately carried out summary executions in 2006, of Tamil and Muslim aid workers in Mutur and the casual killings of five Tamil students who had gathered for a convivial evening on the Trincomalee beachfront before proceeding for their studies. To be clear, all these victims were conclusively established to have had no links to the separatist struggle being waged by the Liberation Tigers of Tamil Eelam (LTTE) at the time. Perhaps more than any other example, the cases symbolised the agony of innocents caught up in conflict.

How not to inquire into state abuse

At least in these two instances, if the legal process had been allowed to proceed without political interference and if the families of the victims had been granted their ‘day in court’ with punishments under law meted out to the perpetrators, much of the country’s later convulsions with ‘international justice’ may have been avoided. But that was not to be. In fact, the Udalagama Commission of Inquiry soon became a classic case study of how not to inquire into gross human rights abuse.

In a reflection that I wrote for the Sunday Times after the Commission was abruptly wound up without being allowed to complete its investigations (‘A Fitting End to a Shakespearean Farce,’ Focus on Rights, June 21st 2009), it was stressed that this ending was sadly but entirely predictable. The Government was put on inquiry as to why such tremendous amounts of money had been wasted on a useless exercise. Could not these energies and resources have been better directed towards ensuring that the legal process proceeded in accordance with Sri Lanka’s penal and criminal procedure laws?

As observed, ‘(this) concerns the near complete failure of Sri Lanka’s investigative, prosecutorial and judicial agencies to act against those who repeatedly commit abuses under cover of conflict. None of these three branches can absolve themselves of responsibility…each failure is inextricably connected to the other; cumulatively they form a pattern that surely should trouble each and every one of us as clear thinking, rational citizens.’ Victims of state terror, Sinhalese, Tamil or Muslim as the case may be, can only helplessly look on when de jure (legal) impunity is afforded to their abusers.

The 2007 farce with ‘international observers’

This propels us down a slippery slope which leads to the clamour for ‘international justice.’ So, where does this leave Sri Lanka’s multiple victims? Close to one and a half decades later, that question still stands true in respect of relevant cases tortuously dragging on in courts despite periodic promises of state law officers to ‘expedite’ the prosecutions. But the failure of the Udalagama Commission was aggravated by the near total disaster with ‘international observers’ which we need to be reminded of.

That is all the more important when the President sunnily promises ‘international observation’ yet again in the belief that this will be a panacea to cure all ills. In 2007, the begrudging agreement to bring in foreign jurists was due also to the (then) President attempting to wriggle out of a tricky situation. But the Government had badly misjudged the calibre of the observers, named rather amusingly as the International Independent Group of Eminent Persons (IIGEP).

The team, apart from the former Indian Chief Justice, included jurists such as the late Professor Nigel Rodley. These jurists of no gentle mettle had fashioned legal international norms on State accountability and dealt with States which were far more fractious than the Sri Lankan Government. Essentially, they had no problem in calling the bluff of those who tried to pull the wool over their eyes, so to speak. After just ten months of open loggerheads with the Attorney General’s Department in particular over the ‘subversion’ of the Commission, the IIGEP packed up their bags and left.

Six grounds that showed absence of political will

In a public statement released afterwards, headlined, ‘A Lack of Political Will to Support a Search for the Truth’, five reasons were detailed. Firstly, there was a fundamental conflict of interest in the Commission proceedings due to the fact that ‘…the Attorney General’s Department of Sri Lanka has played an inappropriate and impermissible role in the proceedings of the Commission and in advising the Commission on the conduct of its proceedings.’

Elaborating on this, it was pointed out that, ‘An officer (Deputy Solicitor-General) of the Attorney General’s Department has taken a leading role in two of the four cases before the Commission so far, by way of acting as lead counsel in the questioning of the witnesses.’ However, where the investigations, or allegations against government forces, including the security forces under review are concerned, ‘the Attorney General has powers, and exercised them in some of these cases, to give advice or directions to investigating officials during the original police investigations.’

Buttressing this view that a serious conflict of interest arose thereby was an opinion by two (retired) Supreme Court justices who, in their time, had formulated Sri Lanka’s public law jurisprudence. The observers also listed the absence of a credible and effective victim and witness protection programme, lack of timeliness and transparency in Commission proceedings, lack of full cooperation by State bodies and lack of financial independence of the Commission as grounds for their loss of faith.

Scandalising controversies in Sri Lanka and overseas

These five publicly stated grounds were however, just the tip of the iceberg. The carefully phrased language belied the scathing nature of the mission’s meticulously detailed and rigorously researched confidential reports on their ‘failed observation’ in Sri Lanka. These reports which were circulated internationally worsened the crisis of the State’s credibility. Those ten months had seen unprecedented antagonism directed at the observer mission by the Government which accused the observers of sending their assistants to monitor the process.

The disputes were also featured most embarrassingly outside Sri Lanka. The Indian media carried its former Chief Justice’s pained expostulations that Sri Lankan State officials including the Attorney General should respond to him in ‘courteous language.’ Finally, the process itself threw more mud on the Government’s face than if the ill-managed observation exercise had not happened at all.

Fast forward to the present, the credibility of Sri Lanka’s proposed TRC requires far more than a deftly turned Presidential reliance on ‘international observers.’ Even if the interventions of the state law office is handled with more finesse, major questions remain regarding the very same problems posed by the IIGEP, including most notably the utter failure of an effective victim and witnesses protection programme. The answer does not lie in securing massive funds to pay a proposed TRC’s staff through donor funding or otherwise.

Surely, have we not learnt this painful history lesson at least now?

Original Caption -The president’s ‘trump card’ on the proposed trc and a history lesson,

(16 July, Sunday Times)


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