In the event of the government facilitating UN Secretary General’s Panel to visit Sri Lanka, the Lessons Learnt and Reconciliation Commission (LLRC) will hear such representations on the basis of its Warrant and the usual procedures followed for such hearings, the LLRC said in a statement.
Following is the statement:
UN SG’s Panel
There have been some inquiries from the national media regarding a visit to Sri Lanka by the UN Secretary General’s Panel. Any decision to facilitate the UN SG’s Panel to visit Sri Lanka lies entirely with the Government of Sri Lanka. If a decision is made to permit such a visit the Lessons Learnt and Reconciliation Commission (LLRC) will hear such representations on the basis of its Warrant and the usual procedures followed for such hearings >> Full Story
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.
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.
The government’s decision to celebrate May 19 as a day of victory and the country’s second Independence is another one of its actions that has polarised the Sri Lankan people. Whether by accident or design, it is ironic that through its continuing actions the government that reunified the territory of the country should also be the one that fosters the divisions between the people. I was in Mannar on that day that marked a watershed in the modern history of the country, and saw that the Sri Lankan people were divided in their attitudes. There was no collective remembrance of loss, but a reinforcement of the separation that has overshadowed the post-Independence era.
While the government was celebrating with military march pasts and air and sea shows in Colombo, in Mannar there was real action that was reminiscent of what happened during the war. A group of people who had gathered to commemorate those who died in the last battle, were prevented from doing so by armed military personnel and police with guns pointing. It is reported that 15 of them were arrested and only released on bail late at night. Earlier the state media had reported that such commemorative meetings were illegal and warned anyone commemorating the defeated Liberation Tigers of Tamil Eelam (LTTE) was liable to be arrested.
However, the Tamil political parties in the opposition said they staged the remembrance for those who died in the final battle. This was where the top LTTE leadership were killed. In this charged context, the decision of the Catholic Church in Mannar to commemorate all victims of the war was pragmatic. Whenever Tamils have tried to commemorate the death of their loved ones, the government has taken steps to prevent this. The military in particular is sensitive to commemorations of the LTTE being held in the guise of commemorating the civilians who lost their lives. However, the reality is that the two groups of LTTE and civilians were often mixed. Especially in the last days of the war, the LTTE forcibly recruited children, some as young as 12, and this included the children of Mannar.
Mannar is the only one of Sri Lanka’s 25 districts that has a Catholic majority. With its unique cultural attributes, it is a celebration of the country’s cultural and religious diversity which must not be made into a weakness when it is a strength. Unlike the Tamil political parties who had called on the people to commemorate the war dead amongst the Tamil population, the Bishop of Mannar requested the clergy in the area to commemorate all victims of the war, and not just those who were Tamil. By implication, this would have included those of all three ethnic groups, the Sinhalese, Tamils and Muslims, and also the fighting personnel on the two sides, the government and LTTE. It is a testament to the strength of Sri Lanka’s diversity, that it was a minority group that decided to commemorate all who lost their lives as recommended by the Lessons Learnt and Reconciliation Commission appointed by the President.
This year’s victory celebration by the government was focused on the valour of the armed forces and the comprehensive defeat of the LTTE. President Mahinda Rajapakse viewed the military parade and pledged that there will be no room for those who tried to divide the country. He said, “We will not allow a single inch of the land that you won by the sacrifice of your life to be taken away.” The past fortnight saw a build up in the mass media to remind the people of those days of blood and bombs and how it all has ended. The contrast with the peaceful situation of the present will continue to bring in the votes of a grateful nation.
But the unfortunate reality is that the support of the Sinhalese majority for the war victory and the government’s celebrations has not been matched by any kind of equivalent support from the Tamil minority. They too have been beneficiaries of the peaceful situation that has followed the end of the war. They are now safe from the ravages of child recruitment and terror tactics that the LTTE brought to bear upon them. But they also wish to mourn their loved ones who are no more with them, to find out what happened to them, and also to regain their dream of enjoying equal rights in which they also have the right to decide. These are all matters on which the government appointed LLRC has made recommendations on but are not being followed by the government.
Four years after the war’s end the political solution that the leaders of government promised during the time of the war has yet to materialize. The LTTE has been replaced by the Sri Lankan military who govern them in conjunction with the civilian administration. The Northern Province, where the first gunshots of the war were fired and where the last of the rebel fighters fell, has still to enjoy the right of elected provincial governance even to as limited an extent as the other eight provinces do. A government ally has filed action in the Supreme Court calling on it to abolish the system of devolution of power for the entire country. In this context, there is increasing skepticism whether the promised Northern Provincial Council elections in September this year will actually take place.
The civil war ended in 2009 but four years later the country has yet to find its path of reconciliation and to heal the wounds of war. At the present time it also appears that Sri Lanka is moving backwards, and not forwards, in terms of securing the Rule of Law. The impeachment of the Chief Justice process eroded the rule of law and usurped the pre-eminence of the Supreme Court in its role of interpreting the constitution. This has impacted negatively on the rule of law and by extension the protection of human rights and political accountability. There is also the rise of inter-religious tensions fanned by government allies. A new dimension of inter-communal unrest is the rise of Buddhist extremism that has targeted the Muslim community and taken on an open and frontal confrontational approach.
Sri Lanka could have been a very different country today. There is a need to recognize that although the civil war ended in 2009 the country has yet to find its path of reconciliation through an inclusive process of political negotiations and a sincere effort to heal the wounds of war. If the recommendations of the LLRC appointed by the President had been followed, the government could have changed course last year. Government leaders would have ceased to further engage in ethnic triumphalism and instead focused on commemorating all victims who lost their lives in the senseless conflict. They could have utilized the occasion of May 19 to resolve that never again would such bloodletting be permitted to take place. This would have been a commemoration that all Sri Lankans, respecting multi ethnicity, equal rights, and the safety and dignity of all, could have taken part in as a united Sri Lankan nation.