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Sri Lanka And ‘Misinterpretation’ Of ‘Sovereignty’? – Analysis


By N. Sathiya Moorthy*

UNHRC chief Prince Zeid Ra’ad Al Hussein’s declaration that it’s for Sri Lanka to decide on an ‘accountability’ probe hides as much as it says. It could not have been otherwise, given that human rights has become a global political tool – and by extension a subject of divisive national discourse nearer home.

The question is this: Who rang the bell in the first place, and who should bell the cat, now. The follow-up query is which bell to tie and around which cat. It’s here, ‘misinterpretations’ are being made from within the present-day Maithiri-Ranil leadership of their ‘National Unity Government.’ At present criticism and misinterpretations from their political opponents is relatively limited and less troubling than might have been thought-to-be.

Having sounded the bugle on ‘war crimes’ and ‘human rights’ violations in Sri Lanka, as yet another means of targetting the post-war Rajapaksa Government, the international community does not know how to handle the situation under a friendlier regime now. Having sympathised with the international community’s position without saying so when President Mahinda Rajapaksa was in power, and purely for extraneous reasons, the UNP majority in the present dispensation has problems carrying the ‘other’ from within.

It can easily be argued that the ‘Combined Opposition,’ under the Rajapaksa tutelage, was at it owing to the political embarrassment and the legal ‘harassment’ being faced by him and his family members. Just now, it is son, Yoshitha, an officer of the Sri Lankan Navy (SLN). President Rajapaksa, wife Shiranthi, brothers, Gota and Basil, have been presenting themselves for investigations into corruption charges flowing from his/their years in office. Before Yoshitha, Basil had spent time in prison.

The sub-text implies if the Rajapaksas or the Combined Opposition, a motley group of parties and MPs that has continued to be with the former President, would have started off on the ‘sovereignty’ issue had it not been for the harassment and embarrassment? The fact is that twice in eight months last year, nearly a half of the nation – and thus, more than a substantial portion of the majority Sinhala community – voted for him and with him. It’s doubtful if they would have done so for the Sirisena-led SLFP but for the greater identification with Mahinda Rajapaksa.

Template models

There can be no denying the ‘wrongs’ done to the minority Tamils over the past decades. Likewise, there should not also be any denying of the ‘wrongs’ committed by the LTTE, likewise. The pro-accountability political and social opinion from within the country, confined mostly to the Tamils, talk mostly on the former, and much, much less of the latter.

International opinion, likewise, creates yard-sticks, which differ not only from country to country, but also from community to community in the context of nations such as Sri Lanka. Just a permanent peace cannot return to Sri Lanka without addressing the legitimate concerns of the Tamils, perfect reconciliation cannot be achieved if more than a substantial portion of the Sinhala majority registers their voice through one election after another.

It is not unlikely that Mahinda Rajapaksa would lose his electoral sheen after a time. The non-stop corruption probes may not aim to achieve it but could divert his attention and digress from his time and space for politics. The ‘Combined Opposition,’ now seeking official parliamentary recognition, replacing the Tamil National Alliance (TNA), may even wither away. But the concerns of the voters that went with the cause that Rajapaksa might have professed/projected, directly or otherwise, might not die away.

Sri Lanka’s past should be a lesson, particularly for the nation’s leaders. It is their duty to educate their international interlocutors, who have neither the time, nor the energy to understand individual nations and situations, and differentiate one from the other. The latter had often reduced issues and concerns in third nations to their levels of understanding or acceptance – or, the reverse.

The template models of the international community do not always work elsewhere. It did not work in Sri Lanka – and more than once. It’s thus that in the past, they failed Sri Lanka, and Sri Lanka ended up failing itself. The birth of the JVP (Sinhala South) and the LTTE (Tamil North), as violent instruments of socio-economic and ethno-political justice, respectively, flowed from such gross misunderstanding, either by the local leadership, or their international interlocutors, or both.

The JVP and the LTTE were creatures of circumstances, when the mainline political leadership was seen as failing the constituency concerned. In the case of the former, it also ended up mutating as the ‘Sinhala-Buddhist nationalist’ alternative with militant methods, when its socio-economic agenda failed itself, and the centre-right moderate polity of ‘Buddhist nationalism’ failed to muster muscle.

The lesson is thus for all concerned. Just as sections within the Sinhala polity and the Sri Lankan State are apprehensive about the re-emergence of an LTTE-like Tamil militant group, many among them also have the counter-apprehension about a ‘Sinhala backlash’ of the kind. Leaders and institutions from within the nation and outside that talk of truth-seeking and political reconciliation cannot talk in air. Nor can they talk to air, or just talk air.

It is thus that a ‘South African model’ here or a ‘Gambia model’ there may not be what Sri Lanka wants. Sri Lanka needs a ‘Sri Lankan model’, and that is what the nation’s rulers this one and all the predecessors, have sworn themselves to. It does not flow only from a majority or ‘majoritarian’ Sinahala view. The problem just now is that if the world accepted the argument just now, the question would arise why it did not accept it when Rajapaksa was in power.

The world would then also have no answers to the Tamil community in Sri Lanka. It would be more so with regard to the Tamil Diaspora nearer home, and the constituencies that they constitute in political and/or electoral terms. Yet, for the Sinhala ruling class to convince the world around, starting with the Tamils nearer home, is easier said than done – whoever is the ruler nearer home. It would be even more difficult for it to convince itself its own constituency – and more so, itself.

‘Corroded and corrupted’

After a point in his four-day Sri Lanka visit, it’s unclear what Prince Hussein was referring to, or which side he was playing for. Read between the lines, he has raised more questions than answers. If anything, he may have also shifted the UNHRC’s goal-post a little – or, may have left the view in some minds back in Sri Lanka.

At the end of the visit news conference in Colombo, he said as much: “It’s not about what the UN says is good or bad. What matters at the end is that justice is served to victims whose parents, children and siblings had been lost. It is their determination what matters, that they are convinced that the government has done enough. And for that reason consultation is vital for Sri Lanka,” he said.

Does it mean that the UNHRC and the international community that backed the resolution would be satisfied if the ‘victims’ and their families were satisfied by a Sri Lankan process? Or, would they agree to it if there were no Sri Lankan process at all, and the victims and their families were reported to have been satisfied with the turn of events?

At the end of the day, Justice and/or Reconciliation are for Sri Lankans and should be for all Sri Lankans – Tamils, and also Sinahala ‘victims’ of war-crimes. It cannot be a one-way street. More so, it cannot be allowed to be ended up as being seen as one-way street. Which is what the present processes are all about. How to make it a balanced affair is the question that the nation should be debating, and is also debating – but in incongruous ways as at present.

In continuing to commend an ‘international probe’ of some kind, Prince Hussein has referred to the Sri Lankan Judiciary as being ‘corroded and corrupted’ by long years and decades of war. In the post-war years, too, it may have more to do with the end of the war and the attendant ‘war-time psyche,’ which the predecessor regime ended up representing, post-war as well.

It cannot be denied – nor should it be denied – that despite what it might achieve ultimately, the regime-change in the country has most definitely breathed in a whiff of fresh air, also into the Judiciary, as everywhere else. Either the international community, starting with Prince Hussein and his office should extend this acknowledgement of theirs, or withdraw it. They cannot say something in a domestic political context and imply something entirely contradictory in a HR-linked diplomatic context.

It is not only that the new regime, which all of ‘em hail, should be given time. They also need to repose trust and faith in this Government, which they failed to do in the case of the predecessor. In the latter case, they acknowledged, suffered, et al, the promises and commitments made by the Rajapaksa regime – but themselves did not take him or his leadership seriously. They should not push the present regime to that corner, and make this one too pay for their own sense of understanding, misunderstanding and all.

Two battles

From the Government side, the confusion over the accountability probe is becoming increasingly palpable. The off-again-on-again ‘cold war’ between the ruling front partners, mainly the UNP and the SLFP, is taking its toll already on the nation’s credibility in the international sphere, as far as the Geneva resolution goes. It could not have been otherwise.

If nothing else, President Sirisena’s SLFP constituency and parliamentary support – limited or otherwise from within his party – owes to the domestic perception that he is cut out of the Rajapaksa cloth, but without being that aggressive. That way, he is fighting two battles, nearer home – one, viz his West-friendly UNP ally in Government, and two against the Rajapaksa opposition from within.

With the Rajapaksa camp getting aggressive, to be named the official ‘Opposition’, the SLFP too may be facing a split from within. For Sirisena and Rajapaksa separately, and for their SLFP collectively, it’s a fight none of them can afford to lose. The hidden lesson from any possible self-destruction of the ‘center-Left’ SLFP is that others waiting on the wings – known or otherwise, knowingly or otherwise – could well seek to fill that space, but with even greater aggression.

It’s in this context, President Sirisena in his National Day address seemed to have said that his political rivals were hell bent on capturing power and various extremists were misinterpreting the Geneva process. The aim was meant to cause turmoil among the armed forces as well as the public, he said adding that the issue had to be faced and resolved in a bid to protect the pride and dignity of the military.

It’s easier said than done. Whether domestic or international judges, prosecutors and investigators, most, if not all commanders and soldiers accused of war-crimes were to be acquitted, then Prince Husseins’s ‘victims and their families’ would cry wolf. They would – and naturally so – blame that the international community too had joined the sell-out of the Tamil pride, lives, et al.

If it’s conviction for many, if not most, then the ‘Sinhala pride’ would be hurt, likewise – and the military pride, which President Sirisena, is talking about would be hurt even more. It’s another matter why neither he as a senior Minister under President Rajapaksa, nor PM Wickremesinghe, who was the Leader of the Opposition, did not make such tall claims, or advice the leader of the day, accordingly – the former in private at the very least, and the latter in public and Parliament.

Ultimate justice

The irony is even more striking considering that Sirisena has magnanimously granted ‘presidential pardon’ to the LTTE cadre who tried to kill him and was imprisoned. As a greater gesture of reconciliation, it goes beyond the mass-scale pardon that the Rajapaksa Government granted over 12,000 LTTE cadres, post-war. But then, we now have LTTE cadres who would not want to undergo ‘rehabilitation’ measures, claiming that would be admittance of guilt in the first place. If they have claims to innocence – or, righteousness – is not clearly known just now.

If the present government prides itself as much in political reconciliation of imprisoned LTTE cadres and other Tamil youth, then the question arises why a ‘rehabilitated’ ex-cadre in Pillayan should now be in prison on the charge of killing TNA parliamentarian, Joseph Pararasasingham, on Christmas night, 2005? The question is not about the unjustifiable act or even about the question if Pillayan was involved. There is futuristic contemporary question arising out of his case.

Pillayan, or Sivanesathurai Chandrakanthan, as he is officially known, was after all the post-war Chief Minister of the war-affected Eastern Province, implying his political rehabilitation, as well. There were others of the ilk. But if the Sri Lankan State were to go after someone this way, owing to a change of political leadership at the national-level, what kind of credibility the commitments of the kind from the present-day leadership would have on and from a future administration?

The apprehensions would be even more in the case of the armed forces – as international courts and judges, prosecutors and investigators could divine new principles that the alleged offenders or their nations might not have been aware of, at the time of occurrence. After all, the UNHRC Reports and resolutions over the past years, and also the Darusman probe have all seemingly conferred greater accountability on the State actors, and without evidence that are justifiable.

Worse still, the ‘Pillayan case psyche’ may have already left a bad taste, elsewhere too. The Sri Lankan leadership, Government and the State should be concerned even more about it, while talking about mischief and misinterpretation. Likewise, the Rajapaksa defence should be worried if Pillayan’s rehabilitation as Chief Minister could be construed even remotely as an ‘accessory after the fact/act’, or some such thing, in the eyes of the newly evolving concepts of criminal jurisprudence, going beyond ‘war-crimes’ and accountability.

This apart, Prince Hussein’s reference to justice for the victims and their families, if applied to the victims and the families of the armed forces personnel and all the politicians and commoners that the LTTE killed, it could have consequences of different kinds. Imaginative prosecutors and even more imaginative defence lawyers could come up with intelligent arguments and also cite Sri Lankan precedents that courts (including international courts) cannot decline or deny.

One, Prince Hussein does not seem to be speaking for the victims and families of the LTTE, as well. Two and more important, extended, his suggestion read with Sirisena’s pardon for his prospective killer, could well re-write criminal jurisprudence in the country, where ‘death money’ or compensation/pardon by the victims and/or their families could end up being described as ultimate Justice!

About the author:
*A double-graduate in Physics and Law, and with a journalism background, N. Sathiya Moorthy is at present Senior Fellow & Director of the Chennai Chapter of the Observer Research Foundation.

This article originally appeared in The Sunday Leader.

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5 thoughts on “Sri Lanka And ‘Misinterpretation’ Of ‘Sovereignty’? – Analysis

  • February 16, 2016 at 9:11 pm

    Is it tweedle dum or tweedle dee? Can’t blame the Author for the article in a country which knows not what it has done but keeps batting on regardless just marking time BY governments! Zero governance is probably the answer!

  • February 18, 2016 at 12:17 am

    The author cleverly portrays all scenarios regards Tamil versus Sinhala polity. He knows all too well that Tamils were massacred enmasse (70000) in 2 months time. Just that fact alone should make him push for war crimes. But he chooses to throw his mind across all matters relevant to this conflict. Bottom line is, Tamils should get justice and so do the sinhalese affected by LTTE. Prince said it correctly. It is the victims’ right to get justice now. Justice should appear to be just as well and it cannot be manipulated by US or India or even TNA. we will wait and see cos only time will tell.

  • February 18, 2016 at 3:20 am

    Pillayan was not arrested for the murder of MP, Joseph Pararasasingham under the Rajapaksa regime because he waa pro-Rajapaksa and the members of the regime themselves were probably behind the murder. He was arrested under the current regime for the same reason. What does this say? that the judiciary in Sri Lanka is highly political to the point of protecting those accused of murder. Proof that international participation is required in any war crimes investigation.

    I understand this author, a Rajapaksa apologist in attempting to excuse Pillayan didn’t mean to undermine the war crimes investigation argument. But he inadvertently did.

  • February 18, 2016 at 7:21 pm

    Justice should not only be done but appear to be done is a well known judicial maxim. SL has been in the red on this score for a long time and keeps dodging the issue!

  • May 26, 2016 at 5:33 am

    No one is punished for war crimes in srilanka even after seven years everyone knows the crime and it’s magnitude but afraid speak the truth No solution can be achieved permanently without truth and justice to the victims


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