Saturday, May 15, 2010

On Commission and Omission

by Dr. P. Saravanamuttu - The first anniversary of the end of the war approaches and we are into a celebratory heroes’ week. Whilst the regime will not fail to remind us ad infinitum of the great service it did us in defeating the fascist and ferocious LTTE and continue to accrue political capital on account of it, there is no denying the widespread relief felt over the defeat of the LTTE and the end of the war. There is no denying either, that this was achieved through military victory by the armed forces and accordingly, there will be gratitude and appreciation expressed to the armed forces and the political leadership for this and the celebration of victory, year in and year out.

It was a bloody, costly war. Soldiers and civilians alike lost their lives, their limbs and livelihoods. Not every one gave them voluntarily for the unity or unitary status of the country or out of unbridled patriotism. Many civilians had no choice and many of them who signed up to the forces may well have done so because of economic necessity. Yet their sacrifice has played its part in the post-war situation we now find ourselves in.

Is the triumphal pomp and circumstance of the march past the fitting memorial to them too? Is there not a crying need to pay tribute to their sacrifice, that of the civilians in particular, through acts of remembrance that do not require displays of military hardware and re-enactments of battle in this our blessed land of all the great religions of the world? Will there be a call from on high for a minute’s silence and for the believers, at least, will religious leaders hold an inter-faith service of remembrance at Independence Square?

Perhaps, not. Perhaps the regime believes that reconciliation and healing is to be pursued through economic development and the latest commission to be announced – that on Post- Conflict Study and Reconciliation. The terms of reference of the Commission are yet to be announced –likewise the members. From what has been made public, it will also look at allegations of violations of international standards and will be comprised of eminent Sri Lankans at home and abroad.

Sadly, commissions and committees are a dime a dozen in Sri Lanka. Set up with much fanfare, they deliberate, recommend and report, only to be consigned to the dustbin of history or some locked drawer in the presidential secretariat. Take the last commission on human rights entitled the Presidential Commission to Investigate and Inquire into Allegations of Serious Abuses of Human Rights, popularly known as the COI to which was the attached the International Independent Group of Eminent Persons (IIGEP). The IIGEP left in frustration and despair, the COI soldiered on and reported to the President and was disbanded in 2009. Apart from what could only have been selected leaks of its findings to the kept press, victims, witnesses and the citizens of this country are yet to be informed of its recommendations and conclusions. Or take the All Party Representatives Committee, the APRC. It has reported. Apparently, end of story.

The international community bought the APRC and COI as evidence of the regime’s bona fides – in the first instance with regard to a political settlement of the ethnic conflict and in the second with regard to reversing the culture of impunity in respect of human rights violations. The settlement is yet to be mooted and the constitutional reform reported to be imminent, is about the electoral process, removing the time bar on the presidential term and a second chamber. The latter may well have some tangential connection to the APRC deliberations, but as sure as night follows day, it is unlikely to be anything beyond a token gesture to power sharing at the centre. As for the culture of impunity, it is very much in place. What of the brutal slaying of the Trincomalee Five and the ACF atrocity? More recently, why is there no police action on the disappearance of journalist Prageeth Eknaligoda or on the alleged PSD assault of a journalist of this newspaper?

Given this record, it is difficult to escape the conclusion that this commission along with the Tissanayagam pardon at this point, and the lifting of certain emergency regulations whilst other draconian ones are reinforced to remain in place, amount to yet another attempt to placate the international community, especially those pompous hypocrites from the West and even across the Palk Straits, who harp on rights and governance and other such irrelevant drivel! National sovereignty and the tenets of the “We did it our way” and “Go to hell” foreign policy aside, salvaging GSP+ and not through litigation as well as staving off Mr Moon’s Panel of Experts, have everything to do with this ostensibly human rights friendly, change of face and heart, by the regime.

Whatever the reason, these developments are to be welcomed if they are serious and sincere. Human Rights Watch has referred to the regime’s game of smoke and mirrors to describe its penchant for procrastination amounting to prevarication on this score. Will the regime pull out of its hat, a “home –grown”- much beloved adjective of regime- speak – plucky, sturdy rabbit of a refutation of this charge? There is some hope and one hopes it lies with the eminent Sri Lankans who will be appointed to the commission and on whose eminence and credibility, the credibility of the commission itself, in large part rests.

Is it too much to ask of them to refuse to serve unless the findings of the COI, for one, are made public and demonstrable action taken to reverse the culture of impunity in respect of, at least, the cases that came before that commission?

This may well be seen as an act of defiance. Yet on this first anniversary of the end of the war and with the post-conflict challenge of peace, reconciliation and unity still ahead of us, this may be all that the ordinary victims and witnesses of human rights abuse have – the courage of the eminent -in the absence of official acknowledgement and effective action in respect of their pain and suffering. What remains is to look beyond our shores for relief, truth and justice and risk the charge of undermining national sovereignty – a crime the Defence Secretary is on record as saying, deserves capital punishment.

© Groundviews

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Saturday, May 15, 2010

Sri Lanka: Thought crime, torture and kingly fiat

Vidya Cumaraswamy - The detention, trial, imprisonment and subsequent pardon of the journalist Tissanayagam reveals that the rule of law no longer applies in Sri Lanka. Tissanayagam’s almost two and a half year ordeal by law sets out the extent to which the law in Sri Lanka has become an instrument of political and ethnic coercion rather than the guarantor of justice, rights and stability.

After months of mounting international pressure, it appears that Tissanayagam will finally be pardoned by Presidential decree - an outcome that does little to restore faith in the system whilst revealing that Sri Lanka’s legalised capacity for violence and coercion can only be restrained by international intervention.

The conditions of Tissanayagam’s detention as well as the charges that were laid against him violated all the fundamental principles that guarantee the law’s compliance with the principle of the rule of law. Despite all of this Sri Lanka’s legal system delivered a verdict of guilty and in accordance with its own distorted principles sentenced him to twenty years of imprisonment.

Kept in detention for months without charge Tissanayagam and the other Tamil journalists were subject to abuse including the extraction of forced confessions. They were denied proper access to defence and police officers supervised the few meetings the defendants were allowed with their lawyers.

Not only was Tissanayagam finally convicted and sentenced on the basis of a forced conviction, the charges of ‘inciting communal hatred’ were also a clear violation of universally applicable norms regarding the reasonable expression of political dissent.

He was charged on the basis of articles and editorials that appeared in the English language North East Herald that reported on Sri Lanka’s military campaign from a Tamil perspective as a fundamental threat to Tamil lives, security and integrity of the Tamil polity.

Although there was nothing in this that could reasonably be interpreted as inciting communal hatred, it was of course fundamentally at odds with the mainstream Sri Lankan media’s depiction of the war as an epic struggle against terrorism which would finally liberate the Sinhala motherland from the clutches of LTTE separatism.

The legal system’s ability to convict Tissanayagam on the basis of a confession obtained under torture on charges that amount to accusations ‘thought crime’ reveal that Sri Lanka has fully departed from the principles of the rule of law.

The Sri Lankan president’s reported decision to pardon him does not restore legality or a sense of fairness to the conduct of this case. A presidential pardon is not the same as a legal acquittal and Tissanayagam’s life and freedom has ultimately been decided by presidential whim rather than the normal operation of an impersonal but just set of legal mechanisms.

The Presidential pardon echoes medieval forms of justice dispensed as royal patronage and is in keeping with Sinhala leaders’ proclivity for styling themselves as mythical Sinhala rulers.

Rajapakse associates himself with the fabled Duttugemunu, his predecessor Chandrika chose to mark the Sinhala military’s capture of Jaffna in a ‘royal’ style ritual in which she received the Tamil city that was renamed in Sinhala as ‘Yappapatune’. Meanwhile Sri Lanka’s first executive president Jeyawardene penned a treatise entitled ‘Golden Chains’ in which he presented himself as the latest in a 2,000 year line of Sinhala chieftains.

Not only does the pardon fail to exonerate Tissanayagam of the chilling charges of ‘thought crime’, it also fails to address the sinister provision of Sri Lanka’s anti terrorism legislation that leaves Tamils at the mercy of an ethnically biased legal system.

In June 2009 a report by the Human Rights Institute of the International Bar Association found that Tamils were left ‘unprotected’ in Sri Lanka’s legal system as the legal aid system, funded by the UN, operated a policy of not providing assistance to cases involving terrorism legislation. This has left many Tamils incarcerated for years at a time without hope of legal redress.

In October 2009 for example a Colombo based human rights group found a twenty nine year old Tamil youth in Welikada prison who had been detained for fifteen years, since the age of fourteen, under the terrorism legislation. He had not been charged or brought before a court and had been deprived of fifteen years of his youth for no apparent reason except that he was Tamil. There are possibly countless others in a similar situation.

Tissanayagam’s freedom was finally assured by his international profile which led to sustained pressure on his behalf. Tellingly it was Sri Lanka’s external affairs minister, G. L Pieris, who announced the pardon to the gathered international media. The pardon is clearly an act of Sri Lanka’ international diplomacy, an act made possible by the complete absence of the rule of law as an operating principle in its legal system.

Sri Lanka may hope that pardoning Tissanayagam will ease the international pressure, perhaps reversing the European Union’s suspension of preferential tariffs on the island’s key export, garments. However, the international community can no longer afford to be bought off with such superficial gestures.

Royal pardons have no place in a state that must now grow up and become a stable, inclusive and constitutional democracy. Sri Lanka’s legal, administrative and constitutional systems require a radical overhaul. As the outcome of Tissanayagam’s legal ordeal demonstrates, the only way this can be achieved is through sustained and ongoing international intervention.

© Tamil Guardian

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Saturday, May 15, 2010

'Traitors should be given Capital punishment': Sri Lanka's Defence Secretary

Defence Secretary Rajapaksa says the LTTE rump is exploring every avenue to avenge Prabhakaran's killing on the banks of the Nanthikadal lagoon last May.

Defence Secretary Gotabhaya Rajapaksa says anyone seeking to undermine Sri Lanka's sovereignty should be treated as a traitor regardless of his or her position.

It will be a grave blunder on the government's part to pave the way for the so-called international community to interfere in Sri Lanka, he says.

The Defence Ministry says that any Sri Lankan promoting an agenda which is detrimental to the country is nothing but a traitor who should be ready to face the consequences.

Defence Secretary Rajapaksa told The Island in a brief interview that traitors deserved capital punishment and no one should shed crocodile tears over them.

He emphasized that the armed forces had paid a heavy price to bring the LTTE to its knees last May and nothing could be as loathsome as producing officers, who had spearheaded the offensive before an international tribunal.

He said that a recent statement, which had been attributed to Oxford Chancellor Chris Patten as reported in yesterday's issue of The Island, underscored the need to be vigilant to external threats. The last British Governor of Hong Kong is reported having said that the UN should have intervened politically and diplomatically under the doctrine of Responsibility to Protect (R2P) in Sri Lanka's campaign against the LTTE.

Defence Secretary Rajapaksa said that former Army Commander General Fonseka, in the run-up to January 26 presidential election, alleged the Army had executed LTTE cadres, who gave themselves up on the Vanni front. Defence Secretary Rajapaksa said: "Although Fonseka had subsequently said that the Army did not massacre surrendering LTTE cadres, though being ordered by me, it paved the way for international intervention."

Defence Secretary Rajapaksa alleged that those bent on destabilizing the country would now exploit Fonseka's parliamentary privileges to fast track their sinister campaign. Now that terrorists no longer retained a conventional fighting capability, the LTTE rump would strive to isolate the country, he said. The fastest way to achieve their goal was to use MP Sarath Fonseka to justify their baseless allegations, he said. He emphasized that anyone throwing his or her weight behind an anti-Sri Lanka conspiracy would be considered a traitor and people should be na‹ve to believe such behavior could be tolerated.

Responding to a query by The Island, the war veteran said that the conclusion of the war last year had brought a sense of relief to all communities. Although petty minded politicians may not realize the ground situation as yet, in the absence of the LTTE factor, the Opposition would be powerless, he said. The bottom line is that the Opposition may not have an issue big enough to exploit as a rallying point except unsubstantiated war crimes charges.

During the war, interested parties, including the media, had accused the Navy and Air Force, too, of indiscriminate attacks on civilians and in some instances Indian fishermen. Had they bothered to follow the media coverage of the war in Afghanistan and Iraq, they would accept Sri Lanka's extraordinary efforts to minimize civilian loss of life. He said that even at the height of the war on the Vanni front, the ICRC was allowed to evacuate the wounded out of LTTE-held territory. He said that the government could have finished off the LTTE in a much shorter time if the military ignored the civilian factor.

© Ministry of Defence - Sri Lanka

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Saturday, May 15, 2010

SRI LANKA: Indigenous insensitivity and the reconciliation commission

The BBC Sinhala Service reported today of a press conference held by the Minister of Media, Keheliya Rambukwella. At this press conference he was questioned on the announcement by the government about a commission for reconciliation and lessons learned. He was questioned as to whether the commission will be something like the Truth and Reconciliation Commission of South Africa.

The Minister's answer was that the South African experience and the bringing of Norway as mediators and the like are all alien experiences to Sri Lanka. He said that, in this particular instance, the government will look to an indigenous approach, something home grown, something of Sri Lanka's own to the issue of reconciliation and lessons learned in terms of the recent conflict.

As this is the position of the government it is worth examining the indigenous approaches to truth and reconciliation to the Sri Lankan context. From various approaches through government commissions there is overwhelming agreement that all the commissions appointed so far, have failed to address the serious questions that have been affecting Sri Lanka in the conflicts in the recent past. The commissions have been condemned by international organisations such as Amnesty International as well as by local human rights groups who have published extensive reports and analysis on the workings of these commissions.

From the point of view of mandate as well as the selection of the commissioners and the work they have carried out, it is not difficult to form an opinion that these commissions were not meant, first of all to engage in a genuine investigation to find the truth of what has happened, or to address the problems of law and morality concerned. They did not deal with the ways to avoid the possibility of the recurrence of similar incidents in the future.

In fact, all such commissions to date have been exercises of denial. Their purpose was to create confusion in the minds of the people at times when the people are seriously expressing concerns about the problems that are a result of these conflicts such as forced disappearances, extrajudicial killings, torture, abuse of power, illegal arrest and detention and many other forms of arbitrary use of power which has caused enormous suffering to the people.

Therefore any repetition of the immediate past in terms of truth and reconciliation would be to repeat the traditions of denial, instead of trying to achieve anything positive. Then we should go back and ask as to whether there are / local traditions of truth telling in the midst of conflicts. I think it is not difficult at all to answer that question.

Sri Lanka's ancient tradition is set on a caste based social structure. The political scientist and the sociologist all agree that the centuries of social organisation of Sri Lanka was based on the hierarchical model of caste. Caste does not recognise the equality of human beings and is based on the legal premise of disproportionate punishment for different categories of persons. While any crime against the upper layer is considered the most heinous, any violence to the lower layers of society are not considered crimes at all. Such was the caste doctrines in India and such was the doctrines that have been deeply entrenched in the Sri Lankan psyche. The country does not have tradition of truth telling and seeking reconciliation after periods of crises.

Some may argue that the religion of Sri Lanka is Buddhist and Buddhism has a rich tradition of truth and reconciliation. That Buddhism has that tradition is undeniable. It is one of the greatest traditions in terms of seeking truth and reconciliation.

However, this is not the living tradition of Sri Lanka in terms of social relationships. Even the monks themselves are divided into castes and the deeply entrenched tradition of cast remains in the Sinhala and Tamil communities. Therefore in the living reality of Sri Lanka, there has never been a time since the Polonnaruwa period at least, when there was a tradition truth seeking and reconciliation.

Therefore talking of a commission in indigenous terms is clearly dangerous. The first time this was introduced into the political discussion in Sri Lanka was in the 1972 Constitution and it was called an autochthonous constitution. What was this indigenous, autochthonous constitution? It displaced the supremacy of the parliament. In fact, this constitution destroyed whatever had been built in terms of freedom of expression and the duty of the judiciary to protect the individual from the arbitrary actions of the state.

That indigenous tradition was continued in the 1978 Constitution. This created the indigenous dictator. Sri Lanka abandoned the liberal democratic constitutional model altogether. The separation of power concept was given up in favour of the absolute power of the executive president. After that came the undermining of the judiciary on an unprecedented scale and also the undermining of the parliament. All these are aspects on which enough has been written in detail and the purpose of this statement is not to go into the details of that discourse. But the fact that this indigenous tradition is a tradition of dictatorship and authoritarianism and the suppression of the rights of the individuals is quite clear.

The problem that Sri Lanka faces is one of an indigenous tradition of the total suppression of people which has been the cause of the violations that Sri Lanka is trying to deal with now. The development of the indigenous tradition of suppression also provoked the indigenous traditions of rebel movements which also resorted to the most barbaric modes of violence. Both in the south in terms of the JVP rebellions and in the north in the Tamil movements culminating in the liberation tiger movement saw, the barbaric use of violence. Thus the indigenous traditions of the state using barbarous violence and the local rebels using also using violence are what the country has seen in the past.

What the Minister's statement clearly indicates is that this commission is going to be a farce. It is going to be a repetition of the traditions of denial, the suppression of truth and trying to strengthen the local suppression that has been going on with the help of the people who are willing to support that tradition. Therefore it will not be a surprise that the so-called commissioners would be those who have a long record of being engaged in the suppression of all attempts of people to seek justice and find ways of dealing with a barbarous, indigenous past.

© Asian Human Rights Commission

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Saturday, May 15, 2010

US welcomes Sri Lanka commission

The United States has welcomed the announcement by the Sri Lankan government to establish a Commission on Lessons Learnt and Reconciliation to examine key aspects of the recently ended conflict in Sri Lanka.

The government last week said it is to appoint the Commission, especially to investigate "the allegations on the abuse of international norms of conduct in such situations".

The statement issued by the US ambassador to the United Nations Susan E Rice states that experience in other countries has shown that commissions of inquiry can play a valuable role in advancing accountability when they are appropriately constituted and enjoy broad public support.

"We hope the commission will also reflect the desires and requests of the citizens of Sri Lanka, who were the primary victims of the conflict. Being responsive to their needs will be an important measure of the commission's success" Susan E Rice adds in the statement.

Rights watchdogs

International human rights organisations have also cautiously welcomed efforts of the Sri Lankan government to hold these investigations.

Human Rights Watch, in a statement, said it is yet another attempt to deflect an independent international investigation.

"Every time the international community raises the issue of accountability, Sri Lanka establishes a commission that takes a long time to achieve nothing," said Brad Adams, Asia director at Human Rights Watch.

Hong Kong based Asian Human Rights Commission (AHRC), meanwhile, said it raises the question whether the attempts to deal with the conflict and the wrongdoings with an intention of learning lessons and taking measures to prevent return of conflict are genuine.

The AHRC believes the best way to analyze the credibility of these efforts are to look into the past experiences of the governments attempts to address the internationally raised questions.

It added that the previous commissions were attempts at evasion and exercises in denial and that this may be repeated in the new commission.

© BBC Sinhala

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Saturday, May 15, 2010

SL Cabinet approves establishment of Lessons Learnt and Reconciliation Commission

Sri Lanka Cabinet on Wednesday approved a proposal by the President Mahinda Rajapakse to appoint a Lessons Learnt and Reconciliation Commission to study the causes that led to the conflict and to prevent such future occurrences, according to Media Minister Keheliya Rambukwella. The Commission would comprise seven eminent Sri Lankans and its terms of reference are to be gazetted in a few days, he said.

The Cabinet has allocated initially a sum of ten million rupees from the General Treasury to permit the Commission to commence its function immediately.

To this effect a Secretariat is to be set up to carry out the administrative functions of the commission. A secretary General would be appointed to oversee it financial management.

The Minister further informed that the Commission would be required to inquire and report on matters that are to be gazetted shortly and that may have taken place between 21st February 2002 and 19th May 2009.

© Tamil Net

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