The new ides of March: Foreign judges

have not come but gone! Beware

the emblematic cases!

12 Little Known Laws of Karma (That Will Change Your Life)

by Rajan Philips-March 25, 2017, 8:03 pm

It is not only the ides of March that is new in Sri Lanka. Remember
the old example of syllogistic fallacy: "It is either raining or not
raining now. But it is not raining now. Therefore, it is raining now"!
We can now make a fallacy example out of the governments
current predicament: "Either the government agreed to foreign
judges in 2015, or it did not agree. Now it is saying it did not
agree.Therefore, the government must indeed have agreed to
foreign judges in 2015"! In any event, foreign judges have not
come to Sri Lanka, but they are gone, notwithstanding the two-
year technical rollover that the UNHRC granted last week to the
government on the self-same 2015 resolution. But the UNHRCs
shadow over Sri Lanka is not receding any time soon, because:
Beware the "emblematic cases". To my mind, these two words
emblematic cases carry far more sting than everything else that
has come out of Geneva. They could also make the sensibilities of
all Sri Lankans converge on a common moral ground instead of
getting torn along ethnic lines.

What are the emblematic cases? According to a UNHRC report

released this March, Sri Lankas emblematic cases are "complex,
serious cases" and the failure to seriously and conclusively
investigate and prosecute them has both undermined the
countrys judicial system and has nourished the culture of
impunity in the land. There is a long list of emblematic cases from
the Kiliveddy massacre in 1996, the Trincomalee and Muttur
killings in 2006, to the Weliweriya shooting of 2013. Included in
the list are the killing of Sunday Leader Editor Lasantha
Wickrematunge in 2009 and the disappearance of journalist
Prageeth Eknaligoda in 2010. The security forces were involved in
these cases either brazenly or covertly along with former LTTE
operatives and the victims ranged from students to aid workers,
prisoners, protesters, opposition politicians and journalists. There
have been other high-profile and still unprosecuted crimes such
as the now confirmed killing of rugger player WasimThajudeen
and the kidnapping of another journalist Keith Noyahr.

Almost over a decade, only two major crime cases would seem to
have been conclusively prosecuted. The first was the New Years
eve murder of a British tourist in Tangalle and the other was high
noon shooting on an election day involving rival members of the
(previous) governing coalition. The Tangalle murder had its day in
court only because there was British insistence and at stake was
Sri Lankas status in hosting the Commonwealth summit in
Colombo. The second case would not have gone anywhere
without the 2015 change in government. But progress in other
cases has come only in fits and starts, more fits than starts. So
there was much surprise and excitement when arrests were made
over the kidnapping case of Mr. Noyahr, a rare survivor of a
kidnapping operation gone awry. Along with surprise and
excitement, there was also much caution, and much of it
editorially articulated, as to whether the government would let
the police finish their work or stop them in their tracks.

Lasantha Wickrematunge: Whodunit?

It turns out that government high-ups have indeed sent down

signals to the sleuths to go slow and not to make politically
inconvenient arrests. Interestingly, allusion to this came in a news
report that covered the UNHRCs reference to emblematic cases.
While there hasnt been much news about the Noyahr case, the
police have been making news about the Lasantha
Wickrematunge murder case. Not only the police, even others
have been making news with mutual finger-pointing as to
whodunit! With a handful of cases to handle, it would seem the
police move from file to file to avoid closing a particular case
under some higher-up political direction. So, on the one hand, the
government is unwilling to allow the police to do their job in
emblematic cases in Colombo, but, on the other hand, it is quite
prepared to co-sponsor sweeping accountability resolutions in
Geneva. And on both counts, the government stands to earn more
unpopularity and gain little or no popularity.

To its credit, and unlike its predecessor, the present government

has not produced emblematic cases of its own. But that is only
one half, or less, of its commitment to good governance. The
bigger challenge for the government is to complete the
investigation and prosecution of the emblematic cases that it
inherited from its predecessor. More importantly, its performance
on these cases has a direct bearing on the position the
government takes and the commitments it makes in Geneva. The
argument of the UNs Human Rights Commissioner for insisting on
foreign, or Commonwealth, judges is that the Sri Lankan
prosecutorial and judicial system is broken and does not have the
capacity or credibility to investigate war crimes. Exhibit A in
support his argument is the list of unresolved emblematic cases.

Curiously, it seems to me, the UNHRC is silent on how the

government should handle the emblematic cases and there
seems to be no suggestion that these cases also require foreign
judges. More importantly, there appears to be no pressure from
Geneva directed at the government to let the police do their work
on the emblematic cases under investigation and carry them
through to prosecution. Instead, the UNHRC is using the
unresolved cases as justification for an accountability mechanism
that is sweeping in the abstract but quite short on concrete
specifics. Conversely, if the news reports are correct, the
government, or high-ups thereof, has no stomach to let the police
carry through their investigations, but is all too willing to co-
sponsor controversial resolutions in Geneva.

The governments backtracking on foreign judges is not

surprising, but pathetic. You only have to read the news reports
on the UNHRC resolution and its background in
September/October 2015. The Prime Minister was fully engaged
by telephone and he did not see any constitutional impediment,
the President was euphoric that he was saving Sri Lanka from the
strictures that the Rajapaksas had brought upon the country, and
the Foreign Minister was as loquacious usual with his Santa Claus
promises. More than political miscalculation at that time, it was
political inaction that has brought the government to its current
predicaments.

The government has enough worries on its plate, even without

worrying about foreign judges. And nothing seems to be going
right for the government, and much of it is its own making. It has
got a two-year technical rollover in Geneva, but at home it is
getting rolled all over. In the worst case scenario, it might be all
over for the government before the two years are over. Its best
case scenario, at least for a part of the government and those in
waiting, is that in two years it could be all over for the UNHRC bar
the shouting thanks to the Trump presidency. But they should not
rush to count the chickens because the Trump presidency is not
showing any sign of being able to hatch anything. Just watch the
CNN, for fake news, of course.

More than anything else the government was elected to

investigate and deal with alleged corruption under the previous
government. But the only inquiry in town is about its own bond
scam in the Central Bank. It is not difficult to imagine that quite a
few people having sleepless nights as revelations keep coming
from the ongoing inquiry. The chips will fall as they must and
people will be held accountable even without foreign judges. Why
cannot a similar passage be allowed for the handling of the
emblematic cases? And why not extend the experience from
these cases to broader areas of accountability?

Some of us have been skeptical about applying the experience of

transitional justice without due consideration to political realities
in Sri Lanka. Similar sentiments were expressed by Tissa
Jayatilaka in a recent Colombo seminar, which are worth
summarizing here. There are three issues that the country needs
to address to bring closure to its extended postwar wake. There is
the question of reparation to people affected by war, both
material and emotional. This is a humanitarian matter and
deserves the highest priority. There is the question of
reconciliation on the political front, which unlike the first, should
be treated as a continuing work in progress and not subjected to
unrealistic timelines. The third is the more legalistic area of
accountability. It is fair to say that meaningful action in reparation
would facilitate understanding in the other two areas. It could also
help operationalize the functioning of provincial and local
administrations in effective ways. On the other hand, insistence
on accountability in the abstract would only cause the
aggravation in all three areas. If accountability is to mean Old
Testament justice of an eye for an eye, we may as well forget
reconciliation. As Mahatma Gandhi warned, An eye for an eye will
leave the whole world blind.
Posted by Thavam