By Kishali Pinto Jayawardene
In a crowded courtroom in Vavuniya, there is a moment of ecstasy when detainees who had surrendered in the final months of fighting between the government forces and the Liberation Tigers of Tamil Eelam are allowed to mingle with their families for a shot while before being segregated to stand at attention when their cases are called.
One scene is particularly striking; that of a small seven year old child hugging and embracing his father who is one of the surrendered detainees while his mother sheds uncontrollable tears nearby.
Bitterness and despair
The two soon need to separate as the cases are called. What follows is truly heartrending. Each of the detainees is called out by name as the case is reached by the presiding judge for the purpose of raising his or her hand to signify presence in court, prior to being escorted back to custody. When it is the turn of the father with the seven year old child, it is not only he who raises his hand. From the edge of the courtroom, his small son, seeing the father raising the hand and hearing the family name being called out, also raises his hand, forcing pin drop silence in the crowded courtroom for a poignant second in time.
Outside, after the cases are finished for the day, a colleague of mine hearkens back to this scene and makes a fleeting observation; ‘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.’
Even taking into account, the obvious need on the part of the government to carefully determine the levels of ‘radicalism’ of these detainees in order to decide whom to release, whom to rehabilitate and whom to indict, this observation has much truth contained in it
Cynicism about the Rule of Law
Seven days spent in the Northern Province last week only increases the sense of cynicism that one feels when speaking of the value of the law in Sri Lanka today. The disinclination among the legal community to even refer to the Rule of Law is palpable. Some incidents immediately invoke outrage as one instance where, after a high ranking officer of the establishment was cited as a respondent in a habeas corpus petition and notice was accordingly issued after the initial hearing, security officers paid a visit to the registrar and demanded to know why the application had been entertained.
This intimidation does not need to happen consistently. On the contrary, one such incident will suffice to strike terror into the hearts of all those who administer the law at various levels.
Political rhetoric and ordinary people
The peculiar factor also is that (apart from a few exceptions) the majority of army officers who one meets by chance either at the checkpoints and entry points manned at every step of the way on the A-9 road or within Jaffna town itself and its environs are by and large, pleasant faced individuals whose stories of the unfamiliar territory in which they now live, are not all negative. At the historic (Kantharodai in Tamil or Kandurugoda, in Sinhala) archaeological site located in Chunnakam, a few kilometres away from Jaffna town, the site of strange, ghostly looking round shaped dagobas supposed to house the relics (as said) of Buddhist monks, an army soldier confesses that he fell in love with a Tamil girl but was forced to abandon the relationship when the fighting intensified.
Kantharodai or Kandurugoda was, in 2003, marked by a protest march (some say, orchestrated by the LTTE) against the construction of a Buddhist vihare at the site. Ostensibly this was to make the point that the Sri Lanka army should have played no part in the construction of a vihare and that the protestors were not against the Buddhists or the Sinhalese. However, the rhetoric underlying the protest engaged in during the then UNF government’s ceasefire, spoke unmistakably to political undertones framing the concept of a separate state fought for by the LTTE at that time.
Yet, take away these inflammatory undertones and what remains is the plight of the ordinary people, trapped between the totalitarianism of their so called liberators and a government which, even after conflict, shows no sign of genuine reconciliation, let alone restoring the Rule of Law in a ravaged land.
Redressing the legal process
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. 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. That sense of fear still persists. The environment which allowed these abuses to occur still persists. Paramilitaries responsible for a significant percentage of these violations with the knowledge and concurrence of sections of government are now in provincial governance.
As commented previously in these column spaces, the writ remedy of habeas corpus should have been of central importance in this background. However, the practical efficacy of this remedy has been faltering. Applications for the issuance of writs of habeas corpus have not generally yielded positive results in the appellate courts or in the Provincial High Courts, excepting a few specific cases. Manifold factors have been to blame stemming from severe dysfunction of the legal and judicial process.
The deliberate negation of this remedy by the respondents to the applications has been a contributory factor. Even in those few instances of grave human rights violations that were actually being taken before the judicial institutions, common features that encourage impunity have been evidenced such as 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 as well as the difficulties of travelling to and from locations in the North/East. Delays in the court process, oftentimes stretching to ten years and more are common.
Calm and sober engagement
As Sri Lanka looks forward to the start of another year, the public call should be for antagonistic rhetoric on the part of those handling the country’s policy processes to be replaced by calm and sober engagement, whether with the United Nations or elsewhere. This country’s foreign policy makers have much to learn from the late Minister Lakshman Kadirgamar, no doubt.
It may be useful for those working at the level of the government or who defend government policy for their personal benefit or advancement to label each and every criticism levelled against the government as emanating from traitors or ‘non-patriots’ or non-governmental organizations who are motivated by Western forces and so on, ad nauseam.
Let it be clearly said that those who justly and legitimately criticize the workings of government will not be deterred by such slander. This should be our exceedingly firm conviction as the New Year dawns. - courtesy: The Sunday Times -