UN resolution and what is next for Sri Lanka

By the Asian Human Rights Commission

Last week the United Nations Human Rights Council approved the resolution on promoting reconciliation and accountability in Sri Lanka.

The gist of the resolution is that the Human Rights Council welcomes the report of the Office of the High Commissioner for Human Rights offering advice and technical assistance to the Government of Sri Lanka for promoting reconciliation and accountability in Sri Lanka, and that the Council encourages the Government of Sri Lanka to implement the recommendations made in the report of the Office of the High Commissioner, and also calls upon the Government to conduct an independent and credible investigation into allegations of the violations of international human rights law and international humanitarian law as applicable.

This requires that the Government of Sri Lanka becomes aware of the allegations of violations of international human rights law and international humanitarian law. For the Government to become aware of the allegations, it must create an environment in which individuals who have allegations to make can approach the government and make those allegations. This means that the Government has to create a change in the social ethos so that confidence, not fear, prevails.

What the world will learn in the months to come is that no such environment exists in Sri Lanka and that anyone who dares to make such an allegation runs a risk to his or her life. That is the situation that local people know very well. The numbers of people who are no longer alive or who have fled the country in order to remain alive are many. The world has heard many such reports but perhaps these have been regarded as either exceptional instances or exaggerations.

Now that the resolution depends on people coming forward to make allegations, it will not be difficult for the world to test as to whether an environment conducive to making such allegations against the government or any of its agencies exists within Sri Lanka. The world will now have a chance to understand and appreciate the fear that the local people experience and know quite well. The world will hear the excuse that the Government always gives: that there is no one making allegations to us directly and, therefore, that is proof that no one has any allegations to make. Silence driven by fear is used as evidence of innocence. This is what the world will see in the months to come.

The resolution also obligates the Government of Sri Lanka to conduct an independent and credible investigation. The world will also learn that a criminal justice system that is capable of conducting independent and credible investigations into allegations does not exist in Sri Lanka.

Today, it is not only violations of human rights law and humanitarian law committed by the military, police or paramilitary that go un-investigated. Even for common crimes, such as murder, rape, robbery and misappropriation, there is no independent and credible investigation system in Sri Lanka. The idea of independence has been replaced with politicisation.

What politicisation means is that investigating agencies, such as the police or other special agencies, are completely under the control of the politicians. What this means is that the police and other agencies cannot investigate into any allegation without authorisation from politicians. To be more specific, the Government can stop any investigation or order the investigators not to conduct the inquiry in an objective and impartial manner, but to do so in a way so as to let the perpetrators go free. Within the country, the local people know this very well and the world will have the opportunity to witness this situation in the months to come.

Credible investigations mean investigations that are done following the norms and standards that are expected to be followed in criminal investigations. Whether there is even a memory of such credible work within agencies that are expected to conduct investigations in Sri Lanka is doubtful. There was a time when the Sri Lankan Police and other special agencies had a shinning reputation for conducting investigations into even quite mysterious and difficult cases.

However, within the last four decades or so, that reputation has been lost and the local people know how ridiculously investigations are conducted. Even murders that have happened in broad daylight, such as the case of The Sunday Leader Editor Lasantha Wickrematunge, and several other murders, which include the murder of Baratha Lakshman Premachandra (just two well-known examples), high ranking Police officers keep on filing one report after another, making all kinds of excuses and, in fact, proving that conducting credible investigations is no longer within their power. To expect credible investigations into crimes in Sri Lanka is like expecting a horse to lay eggs.

Credible investigations require not only the cooperation of policing agencies but also the Attorney General’s Department. That the Attorney General’s Department is controlled by the Presidential Secretariat and that this department no longer has the power to take any action that offends the Government is quite well known to the local people and is a topic that has been talked about extensively. That department, too, had a shining past but its present is as mired as the investigating agencies’.

In short, what the resolution will provide for is an opportunity for the world to see what the local people have been experiencing for quite a long time now. The possibility of criminal justice is not available even for common crimes, let alone allegations against the military and against actions that may have been done by the Police, paramilitary and intelligence agencies under the direct instructions from the top.

The world will also know that the main obstacles to criminal justice come from the Constitution of the country itself. The Constitution of 1978, which placed the Executive President above the law and made the Judiciary and the Parliament subordinate to the president, also made all the basic public institutions in the country dysfunctional.

The world may think that statement is exaggerated but the local people know the story of the 17th Amendment and the 18th Amendment to the Constitution. The world now has not only an opportunity but also a duty to learn what happens to a country when the constitution itself creates a situation of lawlessness.

In short, what the world will come to know in the coming months is that, in a country where even the Chief Justice does not have the right to a fair and credible inquiry by an independent and impartial body, conducting investigations into allegations of violations of international human rights law and international humanitarian law is just a pipe dream.