It is undoubtedly a great irony that at the lowest point of the Sri Lankan Government’s adherence to the Rule of Law, we hear its carefully choreographed announcement during the visit of the United Nations High Commissioner for Human Rights, that enforced disappearances will be criminalised.
Law reform means little
Is there any value to be given to this announcement? Without the slightest hesitation, the answer to this question must be given resoundingly in the negative. This Government has shown no regard for the law or for the courts. The callous throwing out of the country’s 43rd Chief Justice and the utilisation of the military in Hulfsdorp was a categorical sign of this. Its parading of new law is therefore a mockery. Criminalizing enforced disappearances, which has been a demand of Sri Lanka’s civil rights advocates for years leaves only a bitter aftertaste. In this environment of a deep shadow security State, such reforms will mean very little.
Certainly trotting out a parade of new laws when this Government wishes to appease others has long since been its enduring trademark. In 2007, it enacted the ludicrously titled International Covenant on Civil and Political Rights (ICCPR) Act to appease international pressure.
This Act was a direct result of an ill-reasoned judgment handed down by retired Chief Justice Sarath Silva in the Singarasa case (SCM 15.09.2006) which determined that opinions communicated by the juristic body of the United Nations, (ie, the Human Rights Committee) amounted to an exercise of ‘judicial power’ within Sri Lanka. The basic fact that the Committee’s opinions were strictly recommendatory appeared to have been of little account to the Court’s decision.
Familiar patterns of State abuse
In the wake of the considerable furore that this created, the ICCPR Act was enacted prohibiting inter alia racial and religious hatred and providing a remedy against executive or administrative acts in violation thereof to the High Court. Yet to this date, this law has remained the proverbial dead letter. And now, to our amusement, we hear the Government again announcing the criminalization of hate speech even as the Bodu Bala Sena runs rampant with impunity all over the country arousing virulent anti-Muslim hatred as policemen stand idly by. Where is the value of the law indeed?
Moreover Sri Lanka’s ICCPR obligations meant that the country should have criminalised enforced disappearances a long time ago. Enforced disappearances represent a clear breach of various provisions of the Covenant. In one Communication of Views handed down by the UN Committee against the Sri Lankan State (Sarma v Sri Lanka No 950/2000) Adoption of Views on 31 July 2003) which concerned the disappearance of a Tamil youth from the North, the State was asked to reform its laws and practices to little avail.
Whether the crime concerned an enforced disappearance or outright killing as was the case in the 2006 executions of the students in Trincomalee and the aid workers in Mutur, there are familiar features of state impunity.
Common to all these cases, the investigation commenced only after considerable time had lapsed, information on orders that may have been given to the low ranking officers regarding their role in the relevant operations were not forthcoming and the chain of command went disregarded. Even if momentarily arrested, suspects were allowed to roam free on bail and engaged in intimidating family members of victims. In regard to the 2006 killings however, remarkably, not even a single suspect was arrested for well over seven years. The recent arrest of special task force personnel in the Trincomalee case is farcical as the perpetrators had been easily identifiable for years.
Why is the Udalagama report not released?
Meanwhile, the judicial inquiry and forensic investigations into the Mutur executions were characterised by typically grave flaws. These include the transfer of the case from the Magistrate of Mutur to the Magistrate of Anuradhapura (for which differing reasons were given by state officials), the drawbacks in the preservation of the scene of crime and the chain of custody being broken.
The commitment of the government in pursuing this investigation was at best, lackadaisical. For example, were the records of the ongoing military operations in Mutur in 2006 accessed or produced for public scrutiny?
Were detention records or information relating to the cordon and search operation adduced? Was important information provided by parties and not followed up by government investigators? And most importantly why is the Government so determined not to publish the report of the 2006 Udalagama Commission which looked into these cases in some detail before it was unceremoniously wound up by the administration? The Lessons Learnt and Reconciliation Commission (LLRC) recommended the release of this report. But this is one recommendation which is studiously being ignored to date.
Dancing for international consumption
In sum, it must be reiterated that the law by itself, as a theoretical value, has limited meaning. Indeed, in countries such as Sri Lanka where the law has been twisted and manipulated to victimize innocents, it has acquired a far sinister meaning. The utilization of the Prevention of Terrorism Act (PTA, 1979) for purposes that are completely contrary to its purpose is a good enough example. Even after the Government continued to boast that the emergency regime had lapsed, it expanded the PTA and used it to devastating effect against critics of the government.
So as this administration’s policy makers feverishly dance to bring in amendments to the archaic Penal Code to stave off international scrutiny and protests that it will sufficiently investigate and prosecute the 2006 Trincomalee and Mutur killings, let it be said clearly that no one is fooled. We can only watch and wait.