Release the Udalagama Commission report

Talking with a Kashmiri lawyer in New Delhi on Saturday morning, I realized anew that the universal problem of justice for the disappeared cannot be met purely by law reform or by the prosecution of a few lowlevel offenders. Experiences throughout the world show that these are superficial measures, designed to placate and mollify in the short term.

Inevitably moreover, such actions are influenced by political expediency rather than by genuine intent to reform.

Serious questions of state accountability

If therefore, the Sirisena Presidency intends to end old practices of the Sri Lankan State's harming its own citizens, serious questions of state accountability must be put on the table. It must take immediate steps towards transparency including releasing the Udalagama Report in line with the recommendations of the Lessons Learnt and Reconciliation Commission. Effective prosecutions must follow particularly against state agents responsible for the brutal 2006 killings of students in Trincomalee and aid workers in Mutur. There is a deep sense of hurt and grievance on the part of the Tamil community in Sri Lanka which must be met sensitively.

Other imperatives in regard to Sri Lanka's accountability record may form part of a wider push for reforms rather than be brought within the reach of the Government's abominably ill advised voluntary limitation of a 100-day programme. International scrutiny on the country's accountability record can be best met through these strategies.

First, the doctrine of command responsibility must be effected through policy revision as well as amendment of the decades old Penal Code. In other words, the legal liability of political and military superiors when their subordinates commit abuses under their watch must be ensured.

Not a problem limited to the war

Let us be clear however. This is not a question limited to the ending of the war in 2009 or indeed to members of one ethnicity. Rather it is an overarching problem of state impunity in regard to which leaders of the United National Party (UNP) and Sri Lanka Freedom Party (SLFP) are collectively responsible. So as government politicians now wax eloquent on accountability, the contribution of their party to Sri Lanka's 'impunity culture' must be recalled.

Indeed, if state repentance is talked about, it is under governments of the SLFP that even the minimum was enforced. Successful prosecutions on the killing of Premawathie Manamperi in the first Southern insurrection, the rape and murder of Tamil schoolgirl Krishanthi Kumaraswamy and the disappearance of her mother, brother and friend in the 1990's and the enforced disappearances of more than fifty Sinhalese schoolchildren from Embilipitiya in the second Southern insurrection are examples thereto. So let us have a little less political hypocrisy exhibited.

Second, bringing in command responsibility into the domestic penal law is not a revolutionary development. The Sri Lankan Supreme Court has, in several excellently reasoned decisions pronounced on the vicarious liability of police officers and prisons officers when their subordinates commit violations. Then, its jurisprudence equaled the quality of developed Commonwealth courts.

Political will to prosecute

Admittedly, the importation of these constitutional concepts into the penal law is subject to certain riders. An individual's mental intention to commit a crime must be shown. But there is precedent in crafting the penal law in this manner. Sri Lanka's most well designed criminal justice statute, the Convention Against Torture and other Inhuman and Degrading Punishment Act No 22 of 1994 (CAT Act) penalizes superior officers who 'consent or acquiesce' in torture. In fact, the Act's definition of torture vis a vis the element of criminal intention is even broader than the United Nations Convention on Torture.

However, political will to properly use the 1994 CAT Act has been strikingly absent in the twenty years of its enactment. Then as now, this law came into force at a time when Sri Lanka was promised something better. These promises dissolved into thin air thereafter. Torture and disappearances continued as part of an unspoken state policy.

Where the punishment of superiors was concerned, the Department of the Attorney General was questioned by the High Court as to why officers in charge of police stations are not indicted where they have 'consented or acquiesced' in torture. Yet the prosecutorial response thereto has been dismissive. The Department's record under the Act is extremely poor with a mere sprinkling of convictions.

Dilemmas of accountability not peculiar to us

So as we hail the enactment of Sri Lanka's Protection of Victims and Witnesses law this week, a timely caution may be in order. Good laws have been of little use in the absence of political will and effective enforcement mechanisms. Moreover, the question of state accountability for abuses undergone by Sri Lanka's Tamil community is even more complex. A one-time deferment of the March 2015 United Nations Human Rights Council's report on Sri Lanka has been effected on the basis of giving space for a credible national inquiry.

Yet on the one hand, the Southern political spectrum has been agitated by inflammatory allegations that this delay will only lead to a strengthening of the report, focusing on the State's responsibility rather than within the larger issue of impunity brought about by state as well as non-state actors. This may well lend grist to the mill of rabid Sinhala nationalists who are eagerly waiting the return of the Rajapaksa era. In that context, the lamentably ill timed resolution of the Northern Provincial Council stating that 'genocide' has been committed by the Sinhala State against the Tamil people is regrettable.

On the other hand, when assurances of a credible national inquiry on war-time accountability are held out, it is difficult to withhold one's skepticism when this Government's progress in regard to the most basic criminal investigation against low-level offenders including 'elephant thieves' is alarmingly slow.

Regardless, Sri Lanka should witness strong energy in public debates around these issues. Legal reforms must be accompanied by well thought out reparations for those who have suffered, of all ethnicity. Vigorous discussions in India involve these same questions where Kashmir's problems of enforced disappearances are concerned.

We are certainly not alone in the profound dilemmas that these issues pose.