This ‘barking and biting system’ of injustice

Seasoned observers who grimace at the Government-led frantic activity that is manifested now on constitutional reforms to transitional justice cannot be blamed beyond a point.

Charades of Justice

For those familiar with the country’s travails, these are predicable patterns of behaviour. Cycles of devastating violence are interlaced with periods of almost frenetic absorption in whatever ‘dharmishta’ or ‘yahapalanaya’ fancy that happens to catch the public imagination. The preoccupation is with form rather than substance.

In the process, confusion becomes worse confounded by too ambitious programmes of wide-ranging reform with basic concepts still at variance rather than focusing on limited and specific objectives, such as root causes of decay in the investigative, prosecutorial and judicial systems.

This is precisely why, resorting to ad hoc mechanisms including commissions of inquiry have long been a favourite tactic to ward off criticism by successive Sri Lankan leaders. No actual systemic change occurred. Instead we were treated to a charade of justice with unfortunate victims of all ethnicities being paraded before bodies that could not ensure substantial justice.

Ensuring ‘reconciliation’ in reality

On other occasions, we became witness to an equally repulsive exercise of ‘Colombo-led’ reconciliation which failed to reach out to the ethnic communities in the North and East, let alone reassuring Sinhala communities in the South who had been long subjected to inflammatory prejudice by their politicians. In the absence of that necessary element of honesty in its post-conflict reconciliation process, the results were ominous.

For the emotions that such charades arouse are equally violent on both sides of the racial divide. And the backlash thereto becomes infinitely more dangerous than the last. At its most recent in the country’s history, we saw this phenomenon in full flowering with the Rajapaksa decade of degeneration that set in after a sadly mistimed and mishandled ‘ceasefire’ during the period of the short-lived United National Front government.

At one point it did seem as if the 2015 peoples’ revolution had broken that cataclysmic pattern. Yet doubts that set in thereafter are difficult to dismiss. Many of the same mistakes that characterized the UNF rule during that ill-fated ceasefire are being repeated with the same dissociated contempt shown towards critical public opinion. The Government’s package of transitional justice reforms appear to be heading into a storm of controversy. In response, a colleague of mine repeats a caution that is apt; ‘if a different climate of reconciliation is not actually encouraged as opposed to being talked of only in theory, then we will have another generation coming to age with the same bitterness and despair felt by their parents.’

A legal system with little meaning

The Government’s inability to think through sustained and thorough reforms of the judicial institution has also been disheartening. Merely refraining from giving calls to judges to direct the outcome of a particular case as its Medamulana predecessor was wont to do, will not suffice.

There are relative newcomers to the complexity of Sri Lankan politics who continue to be under the misapprehen- sion that the evil began and would have ended with Rajapakse rule. This is most certainly far from the truth. The ugly habits of that decade, including the subordination of the Attorney General’s Department, had their most distinctive precedents in the seventies and eighties.

More recently, the political control of the judicial institution intensified under the Kumaratunga and Rajapaksa Presidencies leading to a virtual systemic breakdown. We are still grappling with reversing those destructive patterns of behaviour. Redressing and correcting the legal process in this background remains of paramount concern. Over decades, the abuses committed by non state agents and state agents alike have deprived the legal process in this country of much meaning.

Ensuring the efficacy of basic legal remedies

It was not so long ago that people were simply 'disappeared' under the cover of emergency law which conferred extraordinary powers on police and service personnel. The writ remedy of habeas corpus should have been of central importance in this background. However, the practical efficacy of this remedy has faltered. There has been no appreciable difference after the new Government came into power either. Manifold factors are to blame stemming from severe dysfunction of the legal and judicial process.

The deliberate negation of this remedy by the respondents to the applications is a primary factor. Even when grave human rights violations were taken before the judicial institutions, common features that encourage impunity are still evidenced. These include the release of the suspect perpetrators on bail, intimidation of witnesses and family members of the victims, transfers of the cases to other courts at the instance of the alleged perpetrators but resulting in grave disadvantage to the petitioners due to financial costs. Difficulties of traveling to and fro from locations in the North/East are also evidenced. Delays in the court process, oftentimes stretching to ten years and more are common.

As Sri Lanka copes with yet another cycle of ‘justice rhetoric’, the public call should be for our legal systems, our judicial institutions and our prosecutorial processes to be substantially reformed. Informed public opinion should reject face saving exercises.

Confronting unpleasant truths head-on

What is the point of a Witness Protection law if it is tainted by individuals who have been demonstrably complicit in covering up grave human rights abuses? Are victims supposed to be so gullible as to trust such bodies? Should this Government be allowed to quote the establishment of these mechanisms as evidence of their intention to ensure justice? These are matters that should be brought to the forefront of each and every discussion, however unpleasant they may be.

Other questions predominate. What is the actual evidence of the improvement of Sri Lanka’s prosecutorial record? What has been the change in investigative and prosecutorial policy, not only in high profile ‘political’ cases but in the ‘mundane’ instances of extra-judicial executions of ordinary civilians? As difficult as this process is, it is only by such rigorous questioning that change can be brought about. Sri Lanka’s systems and institutions should not be allowed to ‘bark and bite’ at innocents any more, whether in the North or in the South broadly speaking.

This must be a collective demand on our part.