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Thursday, May 23, 2024

Our Profound Failures have Resulted in National Shame – Kishali Pinto Jayawardena


In its September 2015 report on Sri Lanka, the Office of the United Nations High Commissioner on Human Rights (OHCHR) quotes immensely interesting asides from the (yet unpublished) report of the Udalagama Commission of Inquiry (2006).

We have been promised by the Prime Minister that the Udalagama report will be tabled in Parliament next week. Informally however, the report has been in circulation for some time.

Involvement of armed personnel in crimes
But let us revert to the OHCHR’s quotation of the Udalagama report. Paragraph 1240 of its report, for example, discusses the heinous extra-judicial executions of five Tamil students in Trincomalee in 2006. The students hailing from professional and well to do families, many of whom had either been admitted to university or were awaiting university admission, were killed as they were casually chatting to each other near the beach front. The OHCHR report cites the Udalagama Commission as stating that ‘there are strong grounds to surmise the involvement of uniformed personnel in the commission of the crime.’

This is of course, saying nothing very new. The involvement of state officers in the murders of the five Trincomalee students had been widely known for years, with specific details contained in reports of the University Teachers for Human Rights (UTHR). These analytical reports were distinguished for their fierce denunciation of the Liberation Tigers of Tamil Eelam (LTTE) as well as the Government.

But the question remains actually less with why the Government at the time preferred to push even these minimalist findings of the Udalagama Commission under the proverbial carpet. The answer to that is self-obvious. Rather, it is as to how, as decent men and women professedly with consciences, we allowed this farce to continue? It is the same question in regard to the death of Sri Lankan ruggerite Wasim Thajudeen. Could sane human beings have allowed these atrocities to happen in full view as it were and yet looked away?

Need to go beyond the superficial
The Udalagama Commission had been tasked to inquire into several grave human rights violations of the time including the Trinco murders and the killings of aid workers in Mutur. Repeatedly undermined by state actors, it was prematurely wound up without being able to complete its mandate.

In a fundamental sense, the fiasco to which this Commission degenerated captures in a microcosm, exactly what is wrong with us. I use the present tense quite deliberately for the reason that despite our greatest expectations, two ‘yahapalanaya’ election victories cannot guarantee concrete change in our democratic institutions if weourselves do not go beyond the superficial. No automatic solutions can be offered by the 19th Amendment or indeed, an entirely new Constitution that people are now feverishly running around with.

The issue in question goes far deeper than pure legal or constitutional reform. It must not be forgotten that during 2001-2004, a Constitutional Council did function. Its composition was vastly better than the one that we have now. ‘Independent’ constitutional commissions were established, excepting the Elections Commission. Yet, was there significant change in Sri Lanka’s democratic functionality? One thinks not.

Explaining away our complicity
Granted, if one compares that period with the darkness of the Rajapaksa decade that followed, things were infinitely better. But the bar is set so low that anything would seem better than the systemic degradation that took place between 2015-2014. Rather, the basic question that should concern us is whether structural reform of institutions took place. For example did the National Police Commission and the National Human Rights Commission actually achieve a better functioning of the institutions that they dealt with? The answer to that question must unequivocally be in the negative.

But to return to the Udalagama Commission, the propaganda around its functioning was beautifully choreographed precisely to obscure and prevent justice rather than achieve it. The role of the Attorney General in ‘assisting’ the Commission only resulted in stirring up controversies. Indeed two (retired) Justices of the Supreme Court noted for their integrity gave an opinion at the time to the effect that if a particular state law officer had been involved in any way whatsoever in regard to any of the violations being investigated by the Commission, that officer was duty bound to excuse himself from participating in the Commission proceedings.

Witnesses and family members of those who had suffered the most atrocious wrongs were badgered as they gave evidence to the extent that they broke down in tears. This was to be expected of the government and its defenders. But what of the other seemingly honourable men and women who participated in or counseled the deliberations of this Commission? How can one explain away their silence or their complicity when the process of justice was so ruthlessly subverted?

The prevalence of sheer self-interest
The extent of this subversion was such that an ‘embedded’ journalist of the private media published extracts from the submissions of defence counsel for the army, claiming that these were extracts from the Udalagama Commission report itself. Those who challenged this shameless propaganda (including this columnist) were, in turn, repeatedly attacked. The Udalagama report itself continued to be hidden away, doubtless in a desk of a Rajapaksa minion.

But it again needs to be asked as to if, in the minimum, a formal refutation of mischievous and false news reports could not have been issued by the Commission or at least one of the Commissioners possessing a tad more courage and conscience than the others? Surely it was not to be expected that such action would lead to the person in question being ‘white-vanned’ to use the popular colloquialism in regard to enforced disappearances? Rather, it was sheer self-interest that dictated much of the silence of those who should have spoken out at the time.

Profound failures of this nature have propelled Sri Lanka to now face the eventuality of a (veiled or otherwise) ‘hybrid court’ proposal to our utter ignominy. Quite apart from the rank stupidities of politicians in bringing about this state of affairs, there is a historic responsibility that we need to bear for our silence at a time when it would have mattered.

– Sunday Times


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