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Commissions, Political Crimes and the Question of Accountability

Dr. Rajan Hoole1

"Behold, a king shall reign in righteousness, and princes shall rule in judgement. And a man shall be as a hiding place from the wind, and a covert from the tempest; as rivers of water in a dry place, as the shadow of a great rock in a weary land. And the eyes of them that see shall not be dim, and the ears of them that hear shall hearken. The heart also of the rash shall understand knowledge, and the tongue of the stammerers shall be ready to speak plainly (Isaiah 32:1-4)."

The presidential Commissions set up to inquire into disappearances recorded nearly 23,000 cases for the entire Sri Lanka from January 1, 1988, until 1994. The bulk of these have been attributed to state forces. The number in the Northeast is said to be about 3000. The Southern disappearances too have some surprises, with the Central and Uva Provinces featuring prominently as compared with the Southern Province - reputedly the home of the JVP. As for disappearances not registered before the Commissions, the numbers I suspect are high in the Amparai and perhaps Batticaloa districts, as the organized effort to lodge complaints was feeble. In the North the LTTE is responsible for most of the disappearances since 1990 - an unknown figure above 2000 - none of which have been registered. I have no reliable estimate of killings or disappearances for which the J.V.P. was responsible. This too no doubt numbered several thousands.

We who lived through the worst years of fear, death and trauma clearly felt the effect of huge death machines stalking our land. Any semblance of personal safety was wishful thinking. The reports of several Commissions looking into these disappearances and assassinations of some leading figures have either been completed or are nearing completion. A number of security forces personnel, some of whom today hold the ranks of major-general or deputy inspector-general, have featured in testimony of alleged complicity in large-scale disappearances. Certain top politicians too have been deeply compromised. On the one hand, tens of thousands of those directly affected, mostly from the rural areas, have been crying for justice for years. On the other hand, for most of us middle-class urbanities these reports awaken mixed feelings of guilt and embarrassment; they come from a past we wish to have been buried, but in reality it can never have been or be. It is now our task to consider how to best influence the course of events, keeping in view the future wellbeing of this country.

Some painful dilemmas have to be faced. There is of course a great deal of pressure to do nothing. The seemingly deliberately procrastinated legal proceedings in fact amount to this. If that is so, one needs to ask if society and the country can survive such blatant disregard for natural justice? If we are agreed that the option of doing nothing is not viable, the next question is whether the objective of justice is achieved by punishing only functionaries in uniform who, for the most part, were doing what their political peers and the ruling interests in Colombo in fact wanted or wished them to do - although this was not always spelled out in crude terms.

In order to help us get our minds into this problem, 1 will give a sketch of the institutionalization of state violence, of the considerations behind it, and of the continuing consequences for society of not facing up to it.

The Roots of State Violence

Although the Jayewardene government of 1977 was voted in with much hope, it became increasingly mired in corruption, economic discontent and its own unwillingness to resolve the Tamil problem. One of its early acts to perpetuate its power was to release JVP leaders detained for insurrection by the predecessor government of Mrs. Bandaranayake. Another was to set in motion a questionable legal process that rendered her ineffective as a political opponent. Both were intended to check the SLFP's influence. The next step was begun in 1979 where the PTA was followed by other legislation conferring wide-ranging impunity for the actions of the security forces. Ostensibly this was meant to contain the Tamil insurgency, then mostly at the stage of bank robberies and assassinations. But that these same provisions could be used to suppress even legitimate political and trade union activity was clearly pointed out by the civil rights movement at that time. These fears were fully justified by the UNP government use of violence against trade union activities and against peasants protesting the allocation of their traditional habitations to a multinational. The foundations for the very violent era that was to follow were completed with the passage of Emergency Regulations Special Provisions, permitting the disposal of bodies without inquest, just before the July 1983 communal holocaust.

With the ruling UNP clearly and discreditably implicated in the murders of July 1983, the government resorted to characteristic disingenuousness, which fooled no one but itself. It accused the JVP it had itself released in 1977, along with some left parties very supportive of Tamil rights, of being the cause of the violence and banned them. The ban on the JVP was not removed. Following the rigged referendum of December 1982 extending the life of parliament, the JVP it seemed had become a worn-out shoe. Having no further immediate use for it in checking the SLFP, the government smartly disposed of it as a scapegoat for the shame of July 1983, or so it thought. The JVP built itself up once more as an underground organization, while the government fought an increasingly bitter war in the Northeast. The government's deceptiveness in dealing with the Tamil problem, the opportunism of its anti-Indian rhetoric and its final acceptance in July 1987 of the Accord imposed by India gave the JVP its opportunity. JVP mobilization was fed by the anti-Indian soil sown by the government for many years. Morally its methods of assassination and intimidation were on a par with those to which the state had bought itself by dismantling healthy legal restraints. The July 1983 violence, the Welikade massacre of prisoners and the use of summary killings, torture and massacres in fighting the Tamil insurgency had left the state with no moral foundation.

The government thus fought the JVP with the only thing it was left with - muscular superiority in brute force and terror. This was what happened during 1987-1989, a main part of the tragedy we are dealing with.

Effects on Culture and Society

I prefaced this presentation with a passage from the prophet Isaiah written circa 600 BC. What it says clearly is that when the state upholds a just order, the minds of the people are clear. Truth reigns and deceivers are duly exposed. On the contrary when the order represents a perversion of justice, we have instead a debased intellectual culture in which deception, paranoia and the basest of propaganda thrive. To put it in Marxist terms, we can enjoy the fullness of the world of freedom only when the world of necessity is equitably ordered. The state of our country leaves us in little doubt about the truth of the aforesaid.

It is also clear that the JVP troubles of 1987-89 were about ten years in the making. As the CRM statements show, alarm bells had been ringing from about 1979. Yet the moral lethargy of the ruling interests in Colombo was such that the country got ever deeper into violence and anarchy, unheeding even the dire consequences of July 1983.

The character of this society was brought out rather strikingly by columnist Lucien Rajakarunayake in the Sunday Leader. Joel Pera, the Papua New Guinean rugby coach at an elite club in Colombo was murdered on May 1, 1997, and the son of a key minister in the present government was implicated in the public mind by his own conduct as well as by the blatant partiality of the inquiry. Rajakarunayake observed: "some of us at the Havelock Sports Club failed to hold a special general meeting to pass a vote of condolence for our dead rugby coach who was murdered and ask for a full, free and fair inquiry. Many feared such a move would have adverse repercussions on the very survival of the club." The concerns of the ruling classes in Colombo are so trivial and so mundane that the slightest inconvenience resulting from passing a condolence motion which basic humanity and self respect demanded could not be countenanced. Many of us would recall, during a time when high crimes and massacres were taking place in the country, sitting on committees in the academic, NGO and religious communities, salving our consciences by polishing up statements calculated to make the minimum impact, while being politically correct. Can even a section of this deeply compromised class rise to the occasion when the grave demands of justice are so pressing that the destiny of this country hangs on their resolution? As a society, our refusal to measure up to the demands of justice has made us more frivolous and increasingly callous.

Among the humbler orders of society that have been most affected by this violence the reactions to denial of justice takes unexpected forms. To them, the state order sustained by the ruling class appears as an unyielding cast-iron wall. Their world becomes a meaningless one in which they have lost their near ones and where justice has no place. The moral precepts of religion lose all correspondence to reality. The only lesson they learn from the ruling class is the sole efficacy of violence. I was told by a commissioner who had sat through hundreds of testimonies of the remarkable phenomenon of siblings of persons killed by state forces, themselves joining the same forces. Their sole aim was a nihilistic desire to wield the same destructive power that had killed their brother or father. I have also been told of instances where victims of LTTE terror joined the LTTE while it effectively controlled Jaffna.

If, on the other hand, the society helped families of victims to find justice and restored their confidence in its efficacy, we would retain them as a constructive part of a society with shared values. The denial of justice therefore leads to a divided society. Even that section which is better served by the order is not safe, needing to live in constant fear of the unfathomable whirlpools of violence metamorphosing around it.

Stultification of the Intellect

For extreme nationalists in either the Tamil or the Sinhalese camp, mass killings of their own perpetrated by the supposed defenders of their own side has become too much of an embarrassment to come to terms with. For example, in the rising tide of panic-stricken Sinhalese chauvinism that followed July 1983, the Special Task Force was formed by President Jayawardene's son. It's motto was 'Jaya Niyathai' ('Victory is Certain'). This of course implied in the context victory against the Tamils. In the Eastern Province the STF quickly acquired a reputation as a killer force. This was fine as long as those killed were Tamils. But then when the JVP insurgency erupted the STF was deployed in the South to do the same with Sinhalese youth. A terrible slur was then cast on the nationalist image of the armed forces as a whole. This was a chapter of history the extremists do not want to be reminded of. The Commission Reports are therefore documents they simply cannot digest. This is one key reason for the irrational frenzy with which the Commissions have been attacked from the beginning, particularly in the press. The result has been a further self-imposed suppression of rational thought, particularly in dealing with the all-important ethnic problem.

One could almost put down the outlines of a standard format for the regular stream of lengthy articles in the press on the theme that the Tamil problem is a huge propaganda conspiracy. July 1983 is dismissed as a small aberration in response to the provocation of killing 13 soldiers. This is followed by the cataloguing of LTTE atrocities against the Sinhalese. It is then averred that what exists in reality is a Tamil terrorist problem on the one hand and, because of it, an enormous Sinhalese problem on the other. Atrocities by state forces are of course not mentioned or are dismissed as necessary minor aberrations in the fight against terrorism. That the Sinhalese people have huge unsolved problems is undeniable. But these writers would not allow a drop of the slightest hint that the tragic events of 1987-89 have anything to do with them.

In what may be broadly called the liberal camp a large section wanted a change of government in 1994 and supported Mrs. Kumaratunge, whose platform included setting up these Commissions. But judging from their silences, such as when the important question of placing implicated security personnel on compulsory leave came up, their position today is one of a singular lack of conviction. Perhaps being an integral part of Colombo society carries its own limitations.

The preoccupation rather of a significant liberal section here is to get the UNP and the government together in opening up talks with the LTTE. Given this position the government gets accused of using these Commissions to beat the LJNP with, rather than making peace with the UNP in order to talk to the LTTE and end the war. Here again one sees intellectual flaccidity that understands neither the LTTE, nor the ordinary Tamil people nor the ordinary Sinhalese people. Overtly or covertly there is the worship of power, rather than reason.

The stage is set for the UNP and its major surviving actors in this tragedy to get away scot free without any having to account for their political crimes - crimes that brought direct misery to lakhs of people. The Commission proceedings now therefore stand to be branded as acts of political victimisation. Both the Southern camps named above have thus provided ample opportunity for Tamil extremist propaganda that is as subtle, vicious and effective as it is destructive. This topic would of course take us outside the immediate subject.

The Commissions: Beginnings and Pitfalls

These Commissions came into being because there was a political demand for them among the predominantly rural constituency, and because the promise to appoint them became part of the People's Alliance Party's election platform. That is a legitimate function of politics.

While the violations were going on, a good section of the press sided with the establishment, but would not openly say so for several reasons. There were also individual journalists who covered these events as best as they could. This first group, which included influential figures, showed its colours only when Chandrika Kumaratunge, upon becoming Prime Minister in August 1994, gave effect to her election promise by exhuming mass graves in the South. The government began to be accused of a Dracula-like necrophilia; and of trying to punish officers and men who had saved the country by 'fighting fire with fire,' and whose services were now indispensable in fighting the LTTE.

Another bout of media-frenzy came into evidence when the Batalanda, Kobbekaduwa and Athulathmudali commissions began sittings in January 1996. Some UNP politicians, favourites of influential press figures, were deeply embarrassed at being accused in testimony of direct complicity in torture and murder. One of the strongest outbursts appeared as the lead item in the Sunday Times of August 18, 1996. It charged the present government with mismanagement and with failure to unite the country and concluded with an allusion to Oliver Cromwell's words to an English parliament: "For God's sake go!"

Blaming the present government, which had been two years in office, with failure to unite the country was curious. The last government had after all fought an increasingly bitter separatist war for most of its 17 years in office, making progress neither militarily nor politically. "Failure to unite" of course pertained here to the Commissions of Inquiry, which it supposed were dividing the ruling class. I refer to this to show the mixture of acute embarrassment and hostility the Commissions were giving rise to among Colombo's ruling elite.

A crucial phase was reached in early 1996 when a letter from President Kumaratunge to the army commander asking him to place about 200 personnel, including officers of brigadier rank, on compulsory leave was leaked to the press. These were personnel implicated before the Commissions and their suspension was a necessary and natural step if the Commissions were to retain credibility. The President cannot be accused of opportunism on this point because she was, after all, fighting a war. There was no doubt a great deal of lobbying within the government not to implement this order. But I also cannot recall a single statement from the NGO or human rights communities in Colombo in support of the order. The President's order remains a dead letter. An examination of the context would strongly suggest that this lack of implementation had a direct bearing on the more than 300 disappearances in Jaffna in the four months beginning in July 1996. This scandalous recurrence once more placed the country among the top league of violators.

The Vijaya Kumaratunge Assassination Commission Report was made public in February 1997. Its timing before the local council elections may have been political, but its findings were serious. There was much that was very embarrassing to the UNP hierarchy and to some police top brass. But the findings, as grave as they were, fell largely on stony ground. They face the likelihood of getting lost amidst gossipy allegations to the effect that the findings were politically motivated so as to blame the UNP and let the JVP off the hook. The reality, as the Commissioners had pointed out, is that the two key suspects mysteriously disappeared while in police custody, while other suspects with JVP links had been released almost certainly on orders from the UNP hierarchy. The police at that time (1988-89) had failed to pursue any leads to JVP involvement in the killing; and at the time of the Commission's sitting those who could provide further information on JVP links were either dead or inaccessible.

Early September 1997 saw another show of ruling class solidarity when UNP leader and leader of the opposition Ranil Wickremasinghe was called to testify before the Batalanda Commission. Previous testimony had alluded to close links between him and a centre for torture and elimination that was active from 1988-90. The tone of the reporting from the 'independent press' was that we were seeing a persecuted man, too good to be where he was, bearing it all heroically. A Sunday columnist even commended him for having done well--although there was little remarkable in his testimony apart from routine denials. For a serious politician he made what is now as it was then--an absurd claim--that the JVP had been banned by his government following the July 1983 holocaust after genuine police inquiries. So tame were the proceedings that this went unchallenged. By contrast there has been not a word of pity for the victims, some of them no doubt innocent, who endured torments at Batalanda. The end of 1997 saw another comedy reflecting the mood of the ruling elite. At the birthday party for the late President Premadasa's son, Mr. Wickremasinghe was induced to shake hands with Mr. Sirisena Cooray, the former UNP minister featured much in the Athulathmudali Murder Commission, from whom he had been estranged. Through the press reports one could almost hear the ruling elite swooning, 'Salvation has come to this land!' These events give us an indication of what is likely to befall the Commission findings.

One should not entertain illusions, whether of this or any future government, as long as this legacy remains unchallenged. The election violence we witnessed in the run-up to the March 1997 local government elections suggests that the potential for political violence is not the monopoly of the UNP alone. The occasional but unchecked intimidation of journalists has continued, as has the obstruction or perversion of proper police functions for private ends. These Commission findings of course refer to violations under the previous government. But even under the present government a number of violations in the Northeast are going uninvestigated and the perpetrators unpunished. An investigation into the bombing of refugees around the church in Navaly during July 1995 resulting in about 125 deaths was promised and then completely forgotten. Even where legal proceedings have been instituted, such as for the Killiveddi massacre, only lower ranking personnel have been brought to court, while there is local testimony that the battalion commander had instigated it. All these events have a direct bearing on whether the country could stay united.

With whatever shortcomings there might have been, the Commissions provided us with an opportunity and an opening to put our record straight and work towards clean government. Instead we seem to be decided on wallowing in the dirt, and the present government, too, has shown signs of being dragged in the same direction. Finally, through our own inaction, these Commission Reports may become what they need not have been--mere political documents for throwing mud at election time.

Prospects for the Country

What I have tried to argue in the foregoing is that the Commissions in question have been dealing with what is primarily an acute crisis in the ruling class. It is only secondarily about errant security personnel. The first barrier to facing the truth about the tragedy in question is that, when it comes to the crunch, the ruling elite are not prepared to subject the UNP and its record from 1977-94 to critical examination. They had mostly been consenting parties to this history. Their claim to have been fighting 'fire with fire' falls apart if one is bold enough to see that the flames had been lit, fuelled and fanned by ten years of political opportunism and criminality at the very top. Documents put out by, for example, the CRM, ICJ and MIRJE many years earlier show that there were no surprises. What is even worse, the Vijaya Kumaratunge Assassination Commission has produced confirmatory indications of cooperation between sections of the UNP and JVP during an interval when their interests converged--perhaps from August 1987 to early 1989. The majority of the security forces were pawns in this game.

On the other hand, it would be perilous to ignore the demands of justice. This country would continue to be an intellectual backwater with its public life corrupt and its discussion of low quality. Tamil extremism would have ample opportunity to have its way if this country were to continue its present volcanic progress.

There is also another myth by which propagandists in the press have frightened people who may be inclined to open up. In press attacks on the present government, the Commissions have on several occasions been conjoined with economic mismanagement. This is also the obverse of what has been frequently said: that though the former government was guilty of mass violations, it did what was necessary for the economy. Both of these positions lead to serious misconceptions. It is not true that global capital favours undemocratic, military or semi-military governments which violate human rights. Investors have learned their lessons in Latin America and recently in Southeast Asia. Investors, such as pension funds, looking for steady reliable returns rather than speculative windfalls, are bound to pay closer attention to such factors as clean government, social consensus and fiscal discipline. We are not going to achieve any of these unless we do a thorough cleanup of our recent political legacy.

What Needs to Be Done

If we are agreed that the cause of justice cannot be overridden by pragmatic considerations, we are back to the problem that the law only provides for the punishment of those directly implicated in crimes. They would nearly always be the ones in uniform. This would be scratching the surface of the problem of justice. These legal procedures cannot be dispensed with. However, in order to make them meaningful, there needs also to be political action to make those in the political establishment, who are by far the most guilty, accountable. Should we not at least do the minimum through whatever fora are available to us, by telling those who held cabinet portfolios during the periods of mass violations that they are not fit to lead this country anymore and should step down from politics? I do not see how we can evade this if the country is to be cleansed of the legacy of violations. This has to become part of a public consensus.

Against this backdrop court proceedings would become meaningful. Questions dealing with punishment and reconciliation must be left to be resolved between organisations of families of victims and those found guilty by the courts. We have lost the moral right to pronounce on this matter. This is, after all, an exercise to restore the confidence of the victims and the vulnerable sections of this country on the efficacy of the law and the feasibility of a civilised order.

1The writer is an active member of the University Teachers for Human Rights(Jaffna).

Posted on 1999-01-01


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