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Foreign Affairs

The Fires Within

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Dharisha B

Dharisha Bastians

Four years after the war ended, development and reconstruction showcases are eclipsed by raw human suffering during Navi Pillay’s visit to Sri Lanka

Rajeswari Ganesan, mother of a 28 year old Vavuniya prison inmate who died under suspicious circumstances in June last year, sobbed out her grief to visiting UN Human Rights Commissioner Navanethem Pillay in the North last Tuesday. This past year, Rajeswari’s grief over the death of her only son, who authorities claim died of a heart attack but she believes was killed in custody, has been a terrible thing to see. Navi Pillay may not have been able to understand Rajeswari’s representation made in Tamil, but overcome with empathy, the UN Envoy put her arms around the weeping mother and held her.

Navi Pillay was the most senior UN official to have visited Sri Lanka’s embattled north and east since the UN Secretary General, Ban Ki Moon toured the region soon after the war ended in May 2009.  For hundreds of families living in the former war zone, whose personal tragedies have been ignored for years, the fact that a high ranking person of international influence was finally close enough to hear their cries for help, was undoubtedly an electrifying experience. “I have never experienced so many people weeping and crying. I have never seen this level of uncontrollable grief,” Pillay was to tell The Sunday Leader three days later in an interview.

Steps in the right direction

In anticipation of her visit, the Government made several strides in the right direction. Whether superficial attempts to pacify the visiting UN Envoy and temper her report ahead of the Commonwealth Heads of Government Meeting (CHOGM) scheduled for November or not, the Rajapaksa Administration set up a Commission on Disappearances, appointed credible commissioners, returned military acquired land to the people, promised action on the Weliweriya killings and agreed to give Pillay “unfettered access” wherever she chose to go. It was the first time that the regime had opened up the final theatre of war beside the now legendary Nandikadal lagoon to any foreign visitor.

Yet in the end, none of the Government’s efforts to paint a positive picture of Sri Lanka’s leap forward after the end of the war could mitigate the stark reality of weeping women and children on the streets of Jaffna and Trincomalee. Shiny new roads and railway tracks could not hide fundamental issues in the former battle zones that were obstructing genuine post-conflict healing and reparation. Pillay was confronted with tales of livelihood and land loss, the search for missing family members and justice for senseless death everywhere she went in the north and east. And in the capital, journalists and marginalised groups like the country’s Muslim population made representations to her about the ongoing suppression of fundamental freedoms in post-war Sri Lanka.

When the High Commissioner issued a stinging report of her seven day fact finding mission hours before she left the island, it was clear the representations of ordinary Sri Lankans and civil society groups had made a deep impression. There was no mincing of words or attempt to pacify the host government. Pillay hit back hard at her critics – many of them Government ministers and warned she would report any reprisals against those who had spoken to her during the UN Human Rights Council mandated mission, back to the Council.

Extended boldness

If Pillay’s presence had given ordinary people extraordinary courage to publicly air their grievances even in the heavily garrisoned north and east, her parting words that the UN considered reprisals a very serious matter has only extended this boldness. One day after the UN High Commissioner left Colombo, Fr. Veerasan Yogeswaran who runs a human rights group in Trincomalee that works with families of the missing or detained, told the French Press Agency (AFP) that he had been visited at midnight and again at dawn by half a dozen plainclothes policemen last Wednesday, just hours after his discussions with Pillay. The Jesuit priest told reporters that his concern was that security forces personnel were entering homes at midnight or in the pre-dawn hours and questioning ordinary civilians. Met with complaints by Pillay about the reprisals against the priests, journalists and civil groups, the Government vehemently denied the claim and then demanded the High Commissioner provide proof to allow the administration to commence investigations. It has lapsed into familiar arguments, about vested interests intimidating people in order to cast the Government in a bad light and even claimed the UN Envoy had been misled by mischievous political elements. But in other ways, the Government has already commenced its own public criticism of those who made representations before the UN High Commissioner, calling them out as tale carriers to the international community. Minister Wimal Weerawansa has already accused the Sri Lanka Muslim Congress of “snitching’ to Pillay because the Party handed over a report about violence against the Muslim Community to the visiting Envoy. President Mahinda Rajapaksa has also reportedly had strong words for SLMC Chief and Justice Minister Rauff Hakeem, about the move.

For Government officials heavily involved with organising Pillay’s visit, her final remarks at the end of the week long tour proved a deep disappointment. The sections of the regime that are advocating greater engagement with the UN system, including Ambassador Ravinatha Aryasinha who heads the country’s Geneva mission to the UN,  genuinely believed that given the opportunity to witness the progress in Sri Lanka first hand, the UN High Commissioner’s perception of the human rights situation on the ground would change. Unfortunately these Government elements are at odds with other more powerful sections of the ruling regime, that are willing only to make superficial changes but have no real intention of meeting international obligations to devolve power to the island’s Tamil population or investigate alleged violations in the conflict’s final phase. Unfortunately for the Rajapaksa administration, Navi Pillay was not willing to merely scratch the surface during her visit.

Stinging goodbyes

As for Pillay’s last words in the island, no one is smarting more than President Mahinda Rajapaksa. The explosive statement at the end of her mission, included remarks about the authoritarian direction in which Sri Lanka was headed. Her words continue to rankle power centres in Colombo long after Pillay is gone.

“A dictator is a ruler who does not hold elections,” President Rajapaksa charged at the 62nd SLFP Convention in Kurunegala on Monday, one day after Pillay had left these shores. There had been 11 elections held under his watc, since 2005, he claimed. “What’s more democratic than that?” he asked the SLFP crowd. “What can I do if the Opposition Leader can’t win an election,” he quipped. Under the lighthearted tone however, the rancour is real, Government insiders say.

There is also the question of whether President Rajapaksa was deliberately perpetuating the grotesquely erroneous notion that elections are the sole test of a state’s democratic credentials. Deposed Iraqi Dictator Saddam Hussein, Egypt’s former President Hosni Mubarak, Zimbabwe’s President for life, Robert Mugabe and President Rajapaksa’s brand new best friend in Belarus, the self-proclaimed last dictator of Europe, Alexander Lukashenko all belong on a list of autocratic leaders who regularly take their nations to the polls. Elections held under such regimes are tragically flawed affairs. But even so, democracies are measured not merely by whether a country’s leaders are elected (however fairly or unfairly), but also by how a state and its leaders safeguard and uphold the liberties of individuals. In a state where civil liberties are suppressed, elections only impose majority tyranny on the rest of the populace.

The Government has issued rebuttal after rebuttal to Pillay’s statement. External Affairs Minister G.L. Peiris even addressed the press in London on Monday evening, in order to reply the UN Envoy as soon as possible. Each rebuttal has dealt extensively with Pillay’s remark on increasing authoritarianism, claiming that the comment was a transgression of her mandate and a political statement. Peiris said her concluding remarks showed a “distressing lack of balance” and claimed her observations suggested that Pillay had “formed her views before reaching the shores of the country.”

The floral tribute

The rebuttal of Pillay’s closing remarks from the Department of Government Information went so far as to accuse the High Commissioner of having attempted to pay a floral tribute at Mullivaikal where the LTTE Leader met his death. The UN Delegation it is learnt was notified by the highest levels of Government in Colombo last Tuesday while Pillay was in the North, that the tribute would not be tolerated.

During her press briefing in Colombo, High Commissioner Pillay said she often lays flowers in commemoration of victims of conflict, in most countries she visits. The question of the floral commemoration has become a hot button issue, with Government insiders insisting Pillay had “shown her hand” in no uncertain terms with the attempted ‘commemoration’.

Given the southern political sensitivities regarding the final theatre of battle where the LTTE leadership perished, the UN`s choice of Mullivaikal for a tribute was perhaps a poor one. But as analysts point out, despite the ubiquitous war memorials bearing unmistakably militaristic symbols all over the country, the Sri Lankan Government is yet to construct a memorial for all victims of the war, despite such a conciliatory memorial being strongly advocated even in the Lessons Learnt and Reconciliation Commission.

Nevertheless, for the first time since the High Commissioner’s delegation left Sri Lanka, her Office clarified the issue yesterday.  Spokesman for the High Commissioner, Rupert Colville told Daily FT that the UN considered that the the general area where the war ended after nearly 30 years might be a suitable spot to commemorate all those who died during that conflict. Colville said that the Government had learned Pillay’s team was considering this and made it plain they viewed it in a different light. “We considered their point of view carefully and felt in the end that it might be misinterpreted — as indeed it has been — so decided not to proceed,” Colville said.

Gross misrepresentation

He said it was a gross misrepresentation to pretend that Pillay was planning to honour the LTTE. “She made her views on the LTTE  very clear indeed in her statement,” the High Commissioner’s Spokesman told Daily FT. Colville said that the words High Commissioner Pillay was due to speak in Mullaitivu had been included in her final statement, when she paid her respects to all Sri Lankans around the country who were killed during the three decades of conflict.

He said that the misrepresentation was “just the latest in the pattern of mendacious abuse” Pillay had referred to in her closing remarks.

Needless to say the slurs cast at the visiting High Commissioner became a large part of the narrative, especially after Pillay tackled the issue head on in her closing remarks. According to informed sources, two remarks particularly irked the visiting UN Envoy. Firstly the reference to her by JHU strongman Udaya Gammanpila as a terrorist sympathiser who saw “her husband in every terrorist”. Pillay’s husband was a lawyer and anti-Apartheid activist in South Africa, imprisoned with Nelson Mandela and others on Robben Island, where political prisoners were detained. The second was Minister Mervyn Silva’s offer to marry Pillay to show her what Sri Lanka ‘has to offer.’ The lewd remarks, made worse by allusions to Ravana-Sita folklore drew an apology to the visiting High Commissioner from President Rajapaksa no less, during his meeting with her last Friday. For the 72 year old judge, who has fought relentlessly for women’s rights throughout her career and especially in her present position, Silva’s remarks were not to be borne.

During a meeting with Leader of the House Nimal Siripala De Silva who was briefing Pillay on the recently constituted Parliamentary Select Committee on Devolution proposals, tried to lightheartedly brush off Mervyn Silva’s slurs. “Don’t worry about his remarks,” the congenial De Silva said during the meeting. Pillay was quick on the draw: “It is you that should be worried, Minister” she said.

Making it personal

There is great weight in that brief but powerful sentence. Rajapaksa administration officials repeatedly make a fundamental mistake in its dealings with international diplomats. They attempt, at their own peril, to individualise UN office bearers or diplomatic officials at local missions. Navi Pillay, as far as the Sri Lankan Government is concerned, can be whittled down to a South African Tamil, a sympathiser of the Tamil cause by virtue of her ethnicity and a convenient tool of the West. Similar mistakes were made with her predecessor, Louise Arbour, who was repeatedly vilified by Government officials. Navanethem Pillay, the Government must understand, even at this late stage, is not just one woman to be discredited and ascribed terrorist labels. Pillay is not just a South African or a Tamil, but the holder of the Office of the High Commissioner of Human Rights at the UN, a fixed institution that will continue to advocate and criticise long after Pillay no longer holds the title. When she presents her reports on Sri Lanka following this fact finding mission, that report will not only remain relevant while Pillay remains in office, but even when her successor takes over the reins.

The UN Envoy said as much during her concluding press briefing last Saturday, when she explained that she and even the UN Secretary General were merely civil servants, bound to uphold the regulations and standards set by 193 member states of the UN. The rules, she said, were set by governments of the world, including Sri Lanka. “If the rules and regulations are violated, that is what the UN points out to Governments. You may call it criticism, but that is what the UN does. When there are gaps, we raise a critical voice, but always with the intention to help,” the High Commissioner told the Sri Lankan press corps. In essence, Navanethem Pillay does not make the rules, any more than Ban Ki Moon, Marzuki Darusman or Arbour does. This fundamental truth that the Sri Lankan Government fails to understand, despite the best efforts of saner counsel within the regime, gravely endangers the country’s international standing at forums such as the UN.

There is little doubt that High Commissioner Pillay’s report on Sri Lanka, to be presented orally in September and in full during the Human Rights Council’s March sessions, will be a bare-naked reading of the human rights situation on the ground. The Government has choices to make as it looks towards Council sessions in Geneva in March 2014, which foreign policy analysts repeatedly warn could herald the beginnings of a fully fledged international inquiry against Sri Lanka unless genuine steps are taken to address accountability issues between now and then.

Costing hearts and minds

Acknowledgement that the need to grant people freedom with dignity, protect human rights and the genuinely necessity to hold people to account for crimes committed against sections of the population not because the international community is demanding it, but for the sake of Sri Lanka’s own soul, could be a starting point, if the political leadership was so inclined. The lack of genuine commitment may have been where everything went wrong for the Government during the Pillay mission, despite all its best efforts to showcase progress. As human rights Chief, Pillay is less concerned with physical reconstruction and more focused on the human condition. The inability to understand that fundamental difference, is costing the Government hearts and minds in the former conflict zones and support in the international arena.

For Navi Pillay, the message came through loud and clear. Everywhere she went in the north and east and sometimes even in Colombo, ordinary people mobbed her with tales of their personal suffering. In the north, observers say, all focus has shifted from the Provincial Council election since Pillay’s visit, with ordinary people convinced again that the UN will successfully advocate on their behalf. Her presence inspired hope for civilians, families of the missing, journalists and human rights activists whose post-war reality has been far from peaceful.

“The fighting may be over, the suffering is not,” Pillay said, as she left Sri Lanka.

If it was paying attention to the more human factors of post-conflict rebuilding, the Government may not have had to endure the embarrassment of having Navi Pillay draw attention to the fact that the peace dividend will elude Sri Lanka as long as a section of its populace remains chained to the suffering wrought by brutal conflict. Sandhya Ekneligoda or Rajeswari Ganesan could have articulated the point with equal eloquence. It would have been apparent in the fear of thousands of ordinary Muslims, worrying that a violent day of reckoning may be in their future. Or in the prostate, uncontrollable grief of Sinnakutty Kanapathipillai from Mullaitivu, who lay on the streets outside the Jaffna Library, asking the UN High Commissioner to find her son who surrendered on 18 May 2009, never to be heard of again.

The compulsion to tell the world of their suffering is a direct consequence of the fact that at home, no one is listening.

Courtesy Daily FT

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Tamil ethnic bias and potential conflict of interest disqualifies Navi Pillay from conducting investigations against Sri Lanka

Ms. Navanethem “Navi” Pillay has impressive credentials.  A South African of Indian Tamil origin, she is the United Nations High Commissioner for Human Rights. She was also the first non-white woman on the High Court of South Africa, and she has also served as a judge of the International Criminal Court and President of the International Criminal Tribunal for Rwanda.
She attended Harvard Law School, obtaining an LL.M. in 1982 and a Doctor of Juridical Science (SJD) degree in 1988. Pillay is the first South African to obtain a doctorate in law from Harvard Law School.
Given her notable achievements in the law as a scholar, lawyer and later as a Judge in several jurisdictions she is undoubtedly aware of such important natural justice principles as the –
1)    Conflict of Interests
A conflict of interest exists even if no unethical improper act results. A conflict of interest can create an appearance of impropriety that can undermine confidence in the process of an investigation or inquiry. A conflict of interest could impair an individual’s ability to perform his or her duties and responsibilities objectively. Aconflict of interest (COI) also occurs when an individual is involved in multiple interests, one of which could possibly corrupt the motivation for an act in another.
2)    Nemo iudex in causa sua (or nemo iudex in sua causa) is a Latin phrase that means, literally, no-one should be a judge in their own cause. It is a principle of natural justice that no person can judge a case in which they have an interest. The rule is very strictly applied to any appearance of a possible bias, even if there is actually none.
3)    “Not only must Justice be done; it must also be seen to be done.”
R v Sussex Justices, Ex parte McCarthy is a leading English case on the impartiality and recusal of judges. It is famous for its precedence in establishing the principle that the mere appearance of bias is sufficient to overturn a judicial decision.
In a landmark and far-reaching judgment, Lord Hewart CJ said:
“ a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. The ruling is derived from the principle of natural justice.  It has been followed throughout the world in countries that use the English common law system.  It has been applied in many diverse situations, including immigration cases, professional disciplinary inquiries, and in the Pinochet case, where the House of Lords overturned its own decision on the grounds of Lord Hoffman’s ( one of the Judges) conflict of interest.
Pinochet case in the House of Lords
Lord Hoffman was the Chairman and a Director of Amnesty International Charity Limited, a company with close links to the human rights organisation Amnesty International.
Amnesty International had been given permission to take part in the hearing before Lord Hoffmann and four other law lords. Unusually, Amnesty’s barristers were allowed to address them at the hearing.

Though Amnesty’s position was that people responsible for human rights violations in Chile should be brought to justice, there was no suggestion that Lord Hoffmann was actually biased against Gen Pinochet. But he had “an interest in the outcome of the proceedings” (according to Lord Goff) and he was “in effect, acting as a judge in his own cause” (according to Lord Hope).

Lord Hutton said “public confidence in the integrity of the administration of justice would be shaken if his decision were allowed to stand.” The law lords agreed that Lord Hoffmann had sat while disqualified and ordered a fresh hearing.

The Hoffmann affair caused great damage to the international reputation of the English judiciary. Lord Hoffmann never explained and never apologised. Yet irreparable damage was done to England’s standing as a country where a fair trial was possible.
4)    Judicial disqualification
Judicial disqualification, also referred to as recusal, refers to the act of abstaining from participation in an official action such as a legal proceeding or conducting an investigation or inquiry due to a conflict of interest of the presiding court official or administrative officer. The judge or presiding officer must be free from disabling conflicts of interest thus making the fairness of the proceedings or investigation less likely to be questioned.
Racial Prejudice of Juries and convicting Judges
During the 19th and 20th centuries, especially in the civil rights movement era, all-white juries in USA acquitted white defendants accused of murdering blacks, and convicted blacks in a manner totally out of proportion to their numbers in the general community. Such cases were rarely prosecuted at all, and when they were due to outside political pressure, only the minimum effort to go through the motions of a trial was made. 
Navi Pillay’s bias
The UN Human Rights Head on arrival in Sri Lanka claims she comes with an open mind. In this context we cannot overlook the fact that the whole issue facing Sri Lanka whether at a terrorist level or political leads to the aspiration of 72 million Tamils to have a separate Tamil Homeland to call their own (irrespective of whether it is in Sri Lanka’s North or Tamil Nadu).
This then raises the question of how Ms Pillay having emotional, genetic and ethnic ties being a Tamil with roots in Tamil Nadu how she can function with neutrality, impartiality, unbias and be emotionally detached?
When facts speak for themselves and evidence reveals that Ms. Pillay has an axe to grind it stands to reason that before we object to Ms. Pillay’s role in Sri Lanka it is only ethical for her to remove herself from any role relating in Sri Lanka. As the neutrality of judges is a sine quo non in the judicial process so whenever a judge realizes he or she cannot look at a case dispassionately the correct thing to do is to withdraw and arrange for a totally neutral person to take over. This is what Ms. Pillay is morally and ethically obliged to do in respect to her dealings with and in relation to Sri Lanka.
Ethics Guidelines in the UN
The UN itself has its own ethics guidelines and advice and figures a list of conflicts of interest found at the organizational level and personal level.  
An ‘organizational conflict of interest arises where, because of other activities or relationships, an organization is unable to render impartial services’. In other words the objective of the organization gets affected.
A personal conflict of interest is a ‘situation where a person’s private interests – such as outside professional relationships or personal financial assets – interfere or may be perceived to interfere with his/her performance of official duties’.
The UN ethics office advocates that staff should always ‘strive to avoid situations’ – we like to raise this same question to Ms. Pillay. The UN ethics office also says that ‘we need to be aware of how our actions, in the absence of an explanation, may appear to be interpreted by others’ – Ms. Pillay will realize what are concerns are because ‘situations do not necessarily imply wrongdoing’ and we are certainly not questioning Ms. Pillay’s credentials but our concern rests on the primary argument that being personally, emotionally, genetically and ethnically Tamil, that potential conflict of interest stake is very high for an entire country and population to accept given that previous statements and behaviour by Ms. Pillay raises questions about her ability to be neutral.
The UN’s financial disclosure program also stresses on conflict of interest in financial affairs. As such the UN outlines conflicts that may arise from accepting an honor, decoration, favour, gift or remuneration in connection with official duties (either from Governments or Non-Governmental sources without prior approval). There are criterions for official hospitality, favouritism – using office or knowledge gained from work to favour family members or friends. If the UN is to maintain and promote the spirit of openness and transparency, and if the objective is to be efficient and credible to safeguard the interests of the Organization it certainly does raise some credibility issues about Ms. Pillay.
Lack of appearance of Objectivity and Neutrality in Ms. Navy Pillay
So while we question Ms. Pillay on her neutrality based on her genetic, ethnic, emotional and personal connections to the Tamil cause, she may also like to answer why she kept using data supplied by the LTTE news agencies to question a legitimate government and continued to quote from LTTE front organization sources.
This makes her appear as a subversive and seditious international civil servant standing in between a sovereign Government and the UN Human Rights bodyand also raises concerns about how far she can expose all the information sharing to these LTTE fronts that are out to create an Eelam (in either Sri Lanka or Tamil Nadu). While she listens with empathy to spouses of dead LTTE leaders she needs to also travel South and meet the dead of the civilians killed by the LTTE outside combat areas. If she has not made arrangements to meet the families mourning children killed in villages, student monks killed in Arantalawa and over 10,000 other such civilians then she will be seen as blatantly one – sided and biased.
It was on the grounds of biased reporting that Iran has recently refused entry to Ahmed Shaheed the UN Human Rights Official to enter Iran
“ the measures taken by Ahmed Shaheed and the show of interviews launched by him, (displays) he is more of an actor than a rapporteur” and further
‘he has not acted fairly and has played the role of the opposition, and his measures have been outside the purview of a UN Rapporteur…the ground is not prepared for his presence in Iran until this approach is modified’.
Sri Lanka needs to stand up and talk in a spirited manner in the international arena. Display qualities of moral courage and outspokenness. A policy of appeasement, retreat, defeatism, kowtowing and cringing in foreign relations in the last two years has led to loss of national pride, self – respect and dignity, and in turn demoralized a once proud Sri Lankan public.   

Recusal (act of abstaining from participation)

Officials with a conflict of interest are expected to recuse themselves from (i.e., abstain from) decisions where such a conflict exists. The necessity for recusal varies depending upon the circumstance and profession, either as common sense ethics, codified ethics, or by statute. For example, if the governing board of a government agency is considering hiring a consulting firm for some task, and one firm being considered has, as a partner, a close relative of one of the board’s members, then that board member should not vote on which firm is to be selected. In fact, to minimize any conflict, the board member should not participate in any way in the decision, including discussions.
Judges, investigators or anyone else acting in a quasi – judicial capacity are also expected to recuse themselves from cases when personal conflicts of interest may arise. For example, if a judge has participated in a case previously in some other legal role he/she is not allowed to try that case.
Voluntary withdrawal from an investigation is also expected when one of the investigators in a case might be a close personal friend, or when the outcome of the case might affect the investigator directly, such as whether a car maker is obliged to recall a model that an investigator drives or if the investigator has a sectarian or emotional link to the substance of the matter under inquiry. Recuse is required by law under Continental civil law systems and by the Rome Statute, organic law of the International Criminal Court.
However, if a judge or an investigating official knows when to withdraw considering that the scales are not balanced equally, it is surely for Ms. Pillay to make the call instead of making us raise these questions.
It is up to Ms. Pillay to now decide how best she can remain unbiased. As an ethnic Tamil sharing genetics and emotional attachments to the Tamil cause through family and roots as well as various other bindings that must prevail, surely Ms. Pillay must know she is unsuited to function in any role where Sri Lanka is concerned or for that matter with India given the strident nature of Tamil Nadu calls for separatism and establishment of a greater sovereign Tamil nation with major parts of Sri Lanka annexed to it.  

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Foreign Affairs

Concentrate On Civilian Policing

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basilfernando

Basil Fernando

Within just a few days of the announcement of the new ministry, the Ministry of Law and Order, a rather unusual level of interest has emerged, judging by the many articles that have appeared in response to the government’s move. Though such quick responses are unusual, they are not surprising. If anyone is asked to point out some of the most pressing issues of public importance, the issue of the civilian police would emerge, without doubt. In fact, for several years, this issue has been addressed on an almost daily basis in all media, in all languages.

Therefore, it is worth trying to trace, by way of a brief history, how the issue of civilian policing acquired such importance.

Since the British established a policing system in Sri Lanka, some 147 years back, the idea of establishing a civilian policing system, which would be in charge of the law enforcement in Sri Lanka, gradually became quite a consolidated part of the building of the state in Sri Lanka. The critical point at which the idea of civilian policing came to be challenged is in the aftermath of the 1971 JVP ‘insurrection’. Suddenly, the police, together with the military, was pushed into the executing the idea of ‘exterminating insurgents’. The idea of extermination was in direct contradiction with the ideas of the administration of justice and enforcement of law in the normal sense, anywhere in the world.

Looking back, it is easy to identify the elements of such extermination, as compared with normal law enforcement functions.

Those elements are:

Arresting persons on a large scale, often based on very flimsy information, which the police were not in a position to assess for veracity;
The permitted use of extraordinary forms of torture with the view to discover information about insurgency and those who are involved in it to a greater or lesser degree;
‘Suspension’ of the police departmental orders in dealing with arrest, detention and the welfare of detainees;
Extraordinary forms of permitted secrecy and withholding of information, even from the next of kin of detainees;
‘Suspension’ of the requirement to observe the legal procedures of reporting arrests and detentions to court, as required by the Criminal Procedure Code of Sri Lanka;
‘Suspension’ of the rule relating to the production of suspects before magistrates within 24 hours;
‘Suspension’ of post-mortems in cases of deaths relating to insurgents;
Finally, large-scale killings of persons after arrest and disposal of their bodies.

These aspects of deviation from the normal legal procedure have been well researched and documented, and a considerable body of literature is available. The purpose of reiterating these items here is merely to trace when the beginning of a drastic departure from civilian policing took place in Sri Lanka.

Subsequently, there were other insurgencies, both in the south as well as in the north and east, which continued up to May 2009, during which period these same deviations continued and intensified. As for the south, the commissions appointed for investigation into involuntary disappearances have left a rather lengthy reports of how these practices occurred. Regarding the north and east, there are many reports made by independent observers, as well as, to some extent, recorded in court cases and numerous reports from human rights groups, including those from various UN agencies. However, a thorough, official record is yet to come, as no official investigations have taken place. Such an official recording would have enabled the survivors from such experiences to record their grievances before a state agency.

These deviations was legitimized by Emergecy Regulations and Anti- terrorism laws.

Normative Changes

Besides the deviation from normal practices mentioned above, there was also a significant change in the law itself, by way of constitutional changes. The 1978 Constitution brought all public institutions under the control of the Executive President and thus the structure of the institutions underwent a fundamental change in their normative framework. Again, this aspect is also well-reflected in the massive amount of literature that is available on the constitutional changes. By 2001, the impact of this change in the normative framework on the actual functioning of the police and other institutions was drastically felt. The disturbing impact of institutional failures led to a parliamentary debate and the passing of the 17th Amendment with near unanimity, with the objective of taking some partial corrective measures. There was a short period of experimentation with the 17th Amendment, which did not change the normative framework of the 1978 constitution but attempted to provide some relief in relation to the damage caused to the institutions. As far as the police were concerned, the National Police Commission brought about some significant improvements, though, due to normative problems, it was not possible to correct the situation completely. However, even these limited improvements collided with the normative framework of the 1978 constitution and the new political regime, which was thoroughly interested in restoring the 1978 constitutional framework. Thus, the 18th Amendment was adopted by the Rajapaksha regime, which went beyond mere re-affirmation of the normative framework of the 1978 constitution, but in fact created a situation in which it is almost impossible to bring about change.

In short, what now exists as the policing system is a product of the deviations brought about in practice since 1971, and normatively brought about by the 1978 constitution, reaffirmed and re-strengthened by the 18th Amendment to the constitution.

When the Lessons Learnt and Reconciliation Commission (LLRC) made its recommendations relating to the problems of the rule of law in Sri Lanka and mentioned the need of delinking the police department from the Ministry of Defence, the aim of that recommendation was the reestablishment of civilian policing in the original sense – meaning before the practical transformations since 1971, and the normative changes since the 1978 constitution.

The present move to establish a new ministry, a “Law and Order” Ministry, and the place of the policing system under this new ministry, is announced as a step towards implementing the LLRC recommendation. However, the mere change of ministry will not create a civilian policing system that has the power and capacity to enforce law within the framework of the rule of law as it existed originally, unless the deviation – practically caused since 1971 and normatively caused by the 1978 constitution, reinforced by the 18th Amendment – is deliberately removed.

Such a change requires a change of design, an expression of intent in terms of principles by way of changing the normative framework of the 1978 constitution, as well as the practical steps to overcome the practices that have gotten entrenched since the aftermath of the 1971 insurgency.

The public has only one of two choices; Either to enter into this debate on civilian policing and achieve a decisive change or live in this same miserable situation without state protection, expecting the things to become even worse.

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Debate On ‘Para Dhemalā,’ Ethnic ‘Purity’ And Caste Ideology

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Laksiri Fernando

Dr. Laksiri Fernando

When I read Charles Sarvan’s first article “Para Dhemalā,” I didn’t see anything objectionable although I sensed perhaps he was not interpreting Michael Roberts’ views on the subject correctly and also I couldn’t agree with his last paragraph which paraphrased Paul Caspersz saying “if one insists on the label “Indian Tamils,” then one should also speak of “Indian Sinhalese.” The paragraph was simply inaccurate. Otherwise there was much meaning and substance to what Sarvan said about ethnic discrimination and caste ideology.

When I was growing up at Moratuwa, almost at the center of the town, I cannot recollect anybody using the term ‘para demala’ even during the cataclysmic communal riots against the Tamils in 1958. Perhaps I didn’t hear them. I had several Tamil friends at St. Sebastian’s College, where I was initially studying, but even there it was not used to my knowledge. But ‘paraya’ was often used not so much at school but in the area where I lived and it was used as a derogatory term in anger or to spite someone who is not liked by you. It also had the connotation that ‘the other’ is inferior.

But even in our school books I believe the terms ‘para desin’ and ‘parangi’ were there and our teachers explained the meanings respectively as ‘foreign’ and ‘Portuguese’ also emphasizing they are not neutral but pejorative terms. In our area, (Sinhalese) people believed that there were two classes of Tamils, those who were called ‘Jaffna Tamils’ and the others, the ‘Indian Tamils.’ Some considered the first group as more or less equal, but not at all the second. But the majority considered both as ‘alien’ and also ‘inferior.’

Having read EW Adikaram’s “A Communalist is a Psychopath” (Jativadiya Manasika Pisseki) as an early teenager, the distinction or the discrimination worried or puzzled me. My effort is not to say that I have been free from any ethnic prejudice. On the contrary, I wish to admit that as a person brought up and socialized within a particular social context, I may have certain prejudices or biases unconsciously. But in my conscious life, I try my best to be free from biases or prejudices while at the same time not rejecting my given ethnic identity.

But the reason to write this rejoinder is not the above. With all respect to Roberts, I believe that there is something extremely significant in what Sarvan has pointed out in his initial article. That is the connection between ‘ethnic conception and caste ideology.’ This is not the first time I have said this. The following is what Sarvan has said.

“The context in which the word para was used, both at boarding-school, in Colombo and elsewhere; the accompanying tone of voice and facial expression, all indicated contempt, dismissal and rejection. Para was linked to Parayā (low caste) and that sufficed to convey meaning to me.”

What he relates is a personal experience, but what is significant to me is what he says as “the accompanying tone of voice and facial expression, all indicated contempt, dismissal and rejection.”

Where does this come from? My conjecture is that it comes from the age old caste-ideology with the accompanied conceptions of ‘purity’ and ‘pollution.’ This caste-ideology manifests among the majority Sinhalese in one way and among the Tamils in another. I am not saying that both are the same in practical terms, one discriminating the other on equal terms, but the ideological roots are more or less the same while there are other root causes as well.

Have I encountered the ‘contempt, dismissal and rejection’ as a so-called Sinhalese? Yes, something closer to that at least once and seen a similar behavior another time. But if I recollect the way the Sinhalese treat the Tamils or the Muslims, then it is almost uncountable. The different experience may be due to me being a ‘Sinhalese’ and moving primarily among the Sinhalese.

Among the Sinhalese, the influencing ideology remains as a ‘superior caste’ which attempts to subjugate a perceived ‘inferior caste.’ It claims ‘purity’ as a ‘chosen people’ by combining ethnicity with religion (Sinhala Buddhism) and attempts by and large to purge the ‘pollution’ through attempted ethnic cleansing of both the Tamils and the Muslims or even the Sinhalese Christians as outcaste.

Among the Tamils, the influencing ideology remains as a ‘distinct group’ also trying to claim a similar ‘superior status’ aligning with the brethren across the Palk-Strait. It also claims ‘purity’ and attempts to purge ‘pollution’ by cleansing whoever perceived as polluting its purity.

I am not saying, the caste or ‘caste-like’ ideology is the only ideological current among the Sinhalese or the Tamils. But often it becomes dominant and distorts ideological landscape or political thinking of the country. We sometimes patronize ourselves by saying or thinking that the caste system is dead and gone in Sri Lanka. But that is not simply the case. The caste ideology is well and kicking. Those who are most communal minded are probably the ones who are most caste minded.

I was recently writing an essay on human rights and the 1978 constitution and wondered why it is so much difficult for the todays Sri Lankans to accept universal human rights. My observation after some contemplation was that because they are (perhaps unconsciously) strongly caste minded. There is a perennial difficulty for many Sri Lankans to grasp and accept the concept of equality due to caste ideology. This may possibly change with the new generations. But that is not the case yet.

The dilemma that Sri Lanka faces in this connection is a historical one, connected with the state and ethnic formation. Let me quote only one paragraph from what I wrote in 2000 (Human Rights, States and Politics: Burma, Cambodia and Sri Lanka):

“It is interesting to examine how the successive migrant communities from India, or other countries in the region, were absorbed into the society after the establishment of the Sinhalese ethnic state. Except in the case of Kshatriya or royal blood, it is evident that others were absorbed at the bottom of the caste hierarchy. At a very early stage of migration, those who came from Madhura in South India were absorbed as the service castes, who were supposed to function as artisans, craftsman, and manual laborers. The origins of several other so-called low castes in the country, e.g. fisherman and cinnamon peelers, can also be traced to the people who came from South India at a later date. What we can see here is a convergence between the ethnic divide and the caste divide.” (p. 59).

During 2002, when I was conducting some field research in the interior of the Kalutara District, I came across a caste called Demala Gaththera. Gaththera caste is one of the oppressed castes in the country, popularly believed a ‘low caste.’ The story was that when some Tamil migrants came to live in the area for some reason, during the early nineteenth century, they were called Demala Gaththera.

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Foreign Affairs

Peaceful Moors, Sinhala Wahabis And The Silver Lining Among ‘Wahabis’

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Hameed

Hameed Abdul Karim

Responding to A.R.M. Imtiyaz’s ‘Moors of Sri Lanka are Not Perfectly Peaceful’

For the life of me I cannot imagine why my good e-pal Dr. A.R.M. Imtiyaz Razak would want to write an article feeding on the same thrash that racist bigots in Sri Lanka, under various guises, throw at Muslims to propagate their doomsday scenarios in his article ‘Moors of Sri Lanka are Not Perfectly Peaceful’ that appeared in your popular ‘Colombo Telegraph’.

The usual Wahabbi bait is flung to convince readers there is a looming threat posed by this cult that will somehow swamp all Muslims in Sri Lanka. Whilst it is true there is a Wahabi trend among Muslims, writers tend to exaggerate this tendency to emphasize their points and to propagate their anti-Muslim feelings. Saudi Arabia’s backing of the military coup in Egypt has exposed the rulers there and has brought ‘Wahabi’s’ out in the open claiming the backing of their government for the Egyptian military led government is not in their name or faith. So there is a silver lining among ‘Wahabi’s’ just as much as there is one in Sri Lanka in the form of Buddhist monks who speak of communal harmony and get assaulted by ‘Sinhala Wahabi’s’ for their virtuous deeds.  Besides, there is a resistance among Muslims in Sri Lanka to Wahabism and it’s not like as if their ideology is going unchallenged by ‘traditional’ Muslims.

I am surprised that Dr. Imtiyaz had said Moors are not perfectly peaceful. By making such a statement he implies that they are violent if we are to go by opposites. ‘Moors’ have shown great rectitude in remaining peaceable in the face of grave provocation. The overwhelming majority in the Sinhala community have also shown a strong resistance to the ethno fascists among them knowing only too well there is a political hand behind all the shenanigans of the BBS and their acolyte like the Sinhala Rawaya.

And what’s the proof the good doctor provides for Moors not being peaceful? Why, the same diatribe on Madrasas and hijab and abayas those ethno fascists throw about all day every day to sell their hatred for the other. You can be sure those ethno fascist Sinhala Buddhists who revel in creating disharmony among communities for their political paymasters will grab what Imtiyaz had said and fling it with glee at Muslims at will.  Why should Dr. Imtiyaz peddle the same jingoism beats me, considering that he is an egalitarian. Being an egalitarian imposes on one professing such values the spirit of liberalism and even support for the wishes of those who want to be different. Why, there is a heartwarming article in your ‘Colombo Telegraph’ about non-Muslim women in Sweden donning the hijab in support of a Muslim sister who came under a racist attack for choosing to dress in accordance with her faith.

I take mild exception to Dr. Imtiyazs’ equation of Muslim with Moors knowing very well he did not mean any harm. I am not a Moor, but I am a Muslim. And there are Muslims among all communities here in Sri Lanka. Some are converts to the faith. But let me hasten to add that as a Muslim I cringe with shame and sorrow if I hear my co-religionists have attacked a place of worship belonging to another faith anywhere in the world. That’s how attached I am to my faith which strictly prohibits acts of a violent nature like all faiths, I suppose.

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