| by Kishali Pinto-Jayawardena

( March 30, 2014, Colombo, Sri Lanka Guardian) Surely the members of the Lessons Learnt and Reconciliation Commission (LLRC) would not have thought, even in their most nightmarish dreams, that a resolution by the United Nations Human Rights Council (UNHRC) sanctioning an international investigation into Sri Lanka’s human rights violations would be primarily based on their 2011 findings.

A heady paradox

Indeed, it would not be a stretch of the imagination to think that the LLRC Chairman and former Attorney General, the late CR de Silva (to his credit, a stubborn man with a stubborn appreciation of the limits to which he could be pushed to) would have, if he was alive, literally shuddered to think that representatives of Western nations were, one by one this week, citing his report as the reason as to why their patience with Sri Lanka had finally run out. 

There is a heady paradox in all of this. The LLRC was mooted by President Mahinda Rajapaksa as a ‘homegrown solution’ to the pesky problem of ‘accountability’ that he was being stridently called to account for. Ideally the LLRC was supposed to be a face saving device by writing a whole lot of nothingness and basically absolving the army of any wrong doing in the final stages of the war. In fact, that part of the script ran true to form with the report citing only isolated incidents and dismissing accusations of a deliberate policy of state wrong doing. 

Incapable of implementing even the minimum

But to the regime’s disconcerted surprise, the LLRC also interpreted its mandate to express healthy horror at the bypassing of the Rule of Law, paramilitary excesses, continuing abductions, disappearances and executions, the militarization of the police as well as the arbitrary use of anti-terrorism laws. Its strictures were harsh and its recommendations unequivocal.

It was predicted at that time in these column spaces (Weighing the LLRC Report in the Scales of Justice, The Sunday Times, 18th December 2011) that a Government impossibly drunk with post-war hubris would find itself incapable of implementing the LLRC’s bare minimum as this would dislodge its authoritarian power base. This has now proved to be the case. And an element of macabre irony became apparent when I saw pro-government demonstrators who would probably be hard put to identify their own mother in the inebriated state that they were in, carrying placards crying ‘down with the LLLC” in Colombo this week. 

The LLRC report’s fundamental contradiction remained however its assumption that Sri Lanka possessed independent systems to carry out a credible inquiry into alleged human rights violations. This was a palpable ignoring of realities. By 2011, our judicial and prosecutorial systems had become utterly politicized. Yet even confounding its most disillusioned cynics, Sri Lanka’s rulers enthusiastically proved the final degeneration of the judicial system barely a year down the line by their ugly witch-hunt impeachment of the 43rd Chief Justice. Through that single outrageous action, this Government cried havoc and let loose the processes of international inquiry. Only minds grossly addled by power and arrogance could have acted like this. The end result was the veritable Ides of March 2014 which for Sri Lanka, came not on the fifteenth of the month but twelve days later.

Link between war crimes and the Rule of Law

So the reasoning that underlies the March UNHRC Resolution is simple. On the one hand, it authorizes the Office of the United Nations High Commissioner (OHCHR) to undertake a comprehensive investigation into acts of both the Government and the LTTE during the period covered by the LLRC. On the other hand, it still asks Sri Lanka to ensure accountability in that regard. It also demands several Rule of Law reforms. All LLRC recommendations must be implemented, the Weliweriya inquiry report must be released, credible oversight of the military system ensured and confidence in the independence of State institutions, including the judiciary restored.

If these calls are not heeded, the consequences are clear. Once an OHCHR investigation is completed (with or without the Government’s consent), Sri Lanka will be deemed incapable of undertaking judicial inquiries into ordinary human rights violations let alone those committed in the heat of conflict. Thereafter, sterner action will follow. Indeed, the initiation of an international criminal justice process cannot be ruled out despite the Government’s optimistic reliance on China and Russia to block this at the Security Council.

We did not look after our own

In sum, it is by no means a pleasant thing to have an international investigation sanctioned into the internal affairs of one’s own country. There is also little doubt regarding the fact that international realpolitik operates against smaller and vulnerable countries while powerful nations violate international law at will. But if we had looked after our own, at least even in the post-war years, the reservoir of support that Sri Lanka had in dealing with the LTTE would not have diminished so speedily. Instead we had to bluster and lie.

Wisely at least the statement issued by Sri Lanka’s Permanent Representative to Geneva on the eve of the vote did not claim that the Resolution violated Sri Lanka’s Constitution. Earlier, we had the Minister of External Affairs rashly asserting just that and confusing international law procedures with domestic constitutional provisions as a result. In 2006, we had this same confusion when (now retired) Chief Justice Sarath Silva declared that Sri Lanka’s ratification of the 1st Optional Protocol to an international treaty was unconstitutional, affirming incorrectly that the Protocol’s body of jurists exercised ‘judicial power’ within Sri Lanka. Where has sanity fled to, one may well ask?

A populistic message is of no use

No doubt the results of this week’s Provincial Council elections will be used to, as President Rajapaksa exhorted, ‘send a message to the international community’ that Sri Lanka’s majority is strongly behind him. But the sponsors of the March 2014 resolution are not likely to be beguiled by such populistic messages. Commandeering the majority votes of a domestic electorate does not stop an international inquiry as examples around the world teach us. 

We should learn from these excellently illustrative examples even at this late stage.

(The writer , legal adviser and a columnist to the Colombo based weekly, the Sunday Times, where this piece was originally appeared)