Rule of Law: First step to invigorate

democratic institutions and advance nation

building

By Kopalasingam Sritharan and Rajan Hoole, UTHR (Jaffna)-November 15,

2015
The governments strategy of marketing the UNHRC
resolution to the Sinhalese as a victory by placing a spin on its contents is
bound to backfire in the long run. While the UNHRC resolutions
recommendation of international participation in the judicial process
divides Sinhalese opinion, there is little popular resistance to the idea that
human rights abuses need addressing. Given this context, instead of trying
to stage-manage the Sinhalese extremists, the government must convince
its constituencies of the need for accountability and truth telling.
Conflicting statements about the nature of the accountability process will
undermine its credibility and victims confidence in it.
In the crucial presidential election of January 2015 which led to the new
governments joint sponsorship of the historic UNHRC Resolution, gives us
a unique opportunity to put behind us practices, mores and preoccupation
with narrow ideologies that turned the attainment of Independence in
1948 into a hell of mediocrity, bloodshed and corruption.
Confronting our violent past with honesty, embarking on a truthful retelling
of the ethnic conflict, acknowledging the crimes committed by parties to
the armed conflict, providing closure and justice for the victims are
inescapable tasks if Sri Lanka is to herald an era of democratic
governance, just peace, and equality for all peoples of this country.

Indeed, these were precisely the messages behind which the majority of
Sri Lankans unitedtwice within the lapse of eight months. There can be
no excuse for yet another missed opportunity.
Rejection of Universal Norms and Demise of the Rule of Law
The French Revolution of 1789, driven by the insolvency of Louis XVIs
government, went through phases of war and a reign of terror, crashed
once more on the rock of more calamitous insolvency, giving way to the
rise of Napoleon in 1799, who, in turn, fared no better with the economy.
For, all it cost the French people in lives and destruction, Immanuel Kant
deemed the revolution a milestone in the progress of mankind. Its
Declaration of the Rights of Man left with us the rallying cry: Liberty
Equality Fraternity, which has echoed far and wide ever since. In France,
it meant the culmination of ideas of the Age of Enlightenment, where the
state became secular and the Calvinist (Huguenot) and Jewish minorities
realised equality.
The first article in the French Declaration, viz."Men are born and remain
free and equal in rights. Social distinctions may be founded only upon the
general good", comprises today the cornerstone of human rights and
humanitarian law. What we in Lanka wished to be after Independence in
1948 was ours to fashion. By rushing into the Citizenship Acts we ensured
that Liberty, Equality and Fraternity had little resonance in our intellectual
or political life ever since. The Acts which de-citizenised and
disenfranchised the migrant Indian labour on our estates, who were key to
our solvency, was contrary to natural justice and international law as the
late Senator Somasundaram Nadesan ably demonstrated. We became a
law unto ourselves. It is this position that the Privy Council sanctioned in
its 1953 judgment on disenfranchisement by shielding the impugned Acts
under the rubric of sovereign equality of states states that delude
themselves into believing that they are immune to all checks. The abysmal
standard of debate among the proponents of the Citizenship Acts in
singling out an exploited community for abuse (e.g. as immoral carriers of
disease), and the personalities involved (including the vast majority of
Tamil and Muslim MPs), made it clear that we had moved from colonialism
to feudalism.
As the French did during the Revolution, we have suffered enormously, but
little was done to change our two extreme nationalist camps remaining the
controllers of our discourse, awaiting the next crisis to unloose their
incendiary genius. One portent of hope is that despite the governments
local ambivalence, the recent UNHRC report and resolution has been hailed

by many leading public figures across our ethnic divisions as an

opportunity to reconcile and move decisively towards the rule of law and
greater justice for all peoples.
The demise of the rule of law is evident in the scandalously sluggish pace
at which the wheels of justice turn in Sri Lanka. That has to do with our
rejection of time-tested international norms. Consequently, decisionmakers at all levels, from the judiciary to the administration and our
universities, rather than be guided by the rules, await the signal from
upstairs the sure road to burgeoning delay and administrative collapse.
A common symptom is the absence of recourse to justice in blatant
instances of abuse of power in our institutions that should have been
rectified quickly at a low level. The delay, expense and uncertainty in going
to the Supreme Court or the Court of Appeal are unmanageable for most
victims, especially the young.We tried to confront the world with our
appalling standards under the illusion that mere sovereignty would protect
us. The world has hit back with a friendly warning that we dare not ignore.
Our courts will gain the maturity to impart justice impartially only when we
command the openness to accept and incorporate precedents from the
history of jurisprudence whose effects we have seen to be benignant. To
go back to the Citizenship Acts, we have the precedent of 1608 AD from
English Common Law, by which our sovereigns in the relevant period,
George VI and Elizabeth II, were bound.Lord Edward Coke recorded in his
widely respected Reports:
"Everyone born within the dominions of the King of England, whether here
or in his colonies or dependencies, being under the protection of
therefore, according to our common law, owes allegiance to the King and
is subject to all the duties and entitled to enjoy all the rights and liberties
of an Englishman." (Calvins case)
This judgment in Calvins case was in respect of the rights in England of
James Is Scottish subjects. The case was argued using examples spread
widely over time and space. A clinching argument appealing to Natural Law
was taken from the Book of Acts (circa 50 AD): "So as hereby it is
manifest that Paul was a Jew, born at Tarsus in Cilicia, in Asia Minor; and
yet being born under the obedience of the Roman Emperor, he was by
birth a citizen of Rome in Italy in Europe, that is, capable of and inheritable
to all privileges and immunities of that city."
Again from one of Cokes judgments: " when an Act of Parliament is

against common right and reason, or repugnant, or impossible to be

performed, the common law will control it and adjudge such Act to be
void." This would also be the position under Roman Dutch Law,which is the
operative law in Lanka. One wonders how the Privy Council, which advises
the Queen, sanctioned the Citizenship Acts which turned an entire
community of the Monarchs subjects, to whom protection was owed, into
stateless persons with no rights or claims anywhere.
Impunity and sovereignty
The Supreme Court of Ceylon in endorsing the Citizenship Acts acted under
extremely bad precedents that went far to discredit the rule of law. Once,
we decided that it is only our sovereign standards that matter and no one
has any right to inhibit our folly, communal violence, blessed and even
actively supported by our leaders, had no checks or recourse. Justice
Sansonis report on the 1977 violence gave a harrowing description of the
involvement of some senior police officers, but deliberately shielded the
highest by failing to take cognizance of the evidence about the incendiary
radio message from Jaffna Police Station which claimed fictitiously that
Sinhalese and Naga Vihare were under attack in Jaffna. Far worse violence
in July 1983 was denied even the benefit of an inquiry.
Impunity of this kind cost the country dear. There is an old precedent to
the 2009 White Flag case the July 1983 Welikade Prison Massacres.
Killing prisoners Kuttimani and Thangathurai was the governments gift to
Prabhakaran of unchallenged leadership of the Tamil militancy. Those who
knew Kuttimani and Thangathurai assert that they were the only two
persons who could have curbed Prabhakaran and were moderate enough
not to impose a long-drawn and fatally destructive war on the community.
We little dreamt that the cruelties war imposed on civilians in Vietnam and
Cambodia would soon be our lot. Since the 1980s, cameras and eyewitnesses have captured similar scenes in Lanka and even worse of breastfeeding mothers being ripped by shrapnel, entire families bombed in
bunkers and the weakest in rural villages brutally hacked. No community
can claim innocence. If we do not want this to happen ever again, we will
only do ourselves a favour by inviting judges and investigators of known
integrity without reserve to help us to deliver a measure of justice that is
owed to the victims. Our own record is hopelessly tarnished.
In the massacre of 27 Tamil inmates of Bindunuwewa rehabilitation centre
by a politically instigated mob in October 2000, while armed police stood
by, the High Court brought shaky convictions against five persons including

two police officers. The Supreme Court threw these out in May 2005.
Testimony from senior journalists of high level instigation involving a
leading provincial politician, points to the purposeful incompetence of the
entire justice machinery.
The Chief Justices judgment of 15th September 2006 on the appeal under
the International Covenant of Civil and Political Rights by PTA detainee
Singarasa highlighted Sri Lankas cavalier disregard for the Covenant its
President had acceded to. He said rights under the Covenant are not
rights under the law of Sri Lanka, at a time the UNs role was crucial for
us.
Since the sovereignty of a state is created and sustained by its people as
an instrument for their commonweal, justifying and masking the states
abuse of its citizens employing a flawed understanding of sovereignty, is
disingenuous and dangerous.
Commission of Inquiry: Failing the Victims and Imperilling the Witnesses
When the war began in 2006, the ire of the international community was
directed against the LTTE for ditching Norways initiative. What brought the
change were the highly repulsive acts of impunity by the Defence Ministry,
in particular the killing of five students in Trincomalee and the ACF
massacre of aid workers. The government agreed to a Commission of
Inquiry (CoI)incorporating an International Independent Group of Eminent
Persons. Witnesses in 2007 first testified at closed door sessions with the
CoIs team of police investigators present. From then on good witnesses
were systematically intimidated. Police officer Shanmugaraja, a witness to
the ACF massacre, was warned before the closed door session that if he let
the side down his family would suffer. He played safe before the CoI.
Rev. Sornarajah, Methodist minister in Mutur, was confident at the 2007
closed door session and was identified an excellent witness. He had met
the ACF victims about 9.00 AM a few hours before the massacre and his
testimony discredited the JMOs timing as early morning. The Police
worked on him and he came for the commission hearing in May 2008, a
broken man, and was intimidated again during the tea break. Back in the
hearing, he wept saying he feared for his life. Commissioner Dr. Nesiah
rose and escorted him out to reassure him. The counsel for the Army
photographed this and demanded the sacking of Nesiah for interfering with
a witness and this was done.
The IIGEP team arranged asylum for witnesses under threat including

Shanmugaraja and Sornaraja. On 14th July 2009 the Chairman of the CoI
went public alluding to LTTE as the killers and exonerated the State. As
though this did not carry conviction, days later the counsel for the Army
got the Police to summon the families of ACF victims to Fort Frederick,
Trincomalee, and got them to sign letters of gratitude in English to the
President blaming the LTTE for the killings.
Troublingly, the DSG directing the hearings, instead of being impartial,
introduced PC Shamugarajas crucial affidavit as coming from one who
found asylum in Australia, contradicting his earlier testimony before the
closed door session. The DSG could hardly have been ignorant of
intimidation by the Police at the CoI itself. An alleged excerpt in the Press
from the Commissions unpublished report on the ACF case attacking Rev.
Sornarajah read like an anonymous petition:"One wonders whether all
these "theatrics" and uproar were to facilitate his seeking asylum." This
was not disowned by the CoI. Crude intimidation of witnesses was not
isolated. The CoI would have known of above half a dozen instances
including two fatalities.
The CoI fiasco gave no comfort to the government. It had shown no
sympathy for witnesses testifying at immense risk. Victims gained nothing
from the process. The Commission of Inquiry demonstrates that spurious
accountability mechanisms conceived to breast the geopolitical tides to
buy time, divert attention, and hoodwink the international community
largely serve to obfuscate the truth and pile further suffering on the
victims and the witnesses.
In order that we are not held hostage to extremism, the truth must be
brought out and digested by the people. We already see that the UNHRC
findings have silenced many apologists for the LTTE. The governments
strategy of marketing the UNHRC resolution to the Sinhalese as a victory
by placing a spin on its contents is bound to backfire in the long run. While
the UNHRC resolutions recommendation of international participation in
the judicial process divides Sinhalese opinion, there is little popular
resistance to the idea that human rights abuses need addressing. Given
this context, instead of trying to stage-manage the Sinhalese extremists,
the government must convince its constituencies of the need for
accountability and truth telling. Conflicting statements about the nature of
the accountability process will undermine its credibility and victims
confidence in it.
In order to avoid pointless half measures, it is important to understand
that it is our failure of integrity that resulted in the recent UNHRC

resolution. The governments history of blundering disingenuousness led

over time to the denouement at Geneva. It is of no use pretending that our
institutions are other than feudal or that character and independence are
held in high regard while, in fact, signals from above are the very staple of
our officialdom. Our law enforcement institutions are too steeped in
majoritarian nationalist chauvinism and hardly command the trust of
minorities. Once we had built a firm place for the rule of law, we may
advance well-founded motions against our bte noirs, the US, Britain and
India, at the UNHRC and be taken seriously.
A thorough implementation of the UNHRC resolution will not only take us
forward in the journey towards a just peace but also reinvigorate our
judicial and law enforcement institutions. In that, the resolution is not just
about Tamils; it is about pulling Sri Lanka out of its fatal decadence that
survives and thrives from one election to the next.
Posted by Thavam