The practical road to reconstruction and reconciliation



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by Gnana Moonesinghe


"I believe finding the truth is most important. I question everything in my path to uncovering the truth"- Socrates


In May 2009 the 30-year war within the country was decisively concluded. The rebels lost territory, their leaders along with many combatants are dead, had surrendered or are unaccounted for. There had been and there continues to be persistent allegations of serious human rights violations during the last phase of the war by various concerned people. The UNHRC resolution co- sponsored by the Sri Lankan government calling to investigate whether there is any truth behind the allegations is an initiative and a response to such claims. In the perspective of not only the international community but also of the citizens of this country too there is a compulsion for the Sri Lankan government to conduct inquiries to ascertain the veracity of the said charges. Is there evidence to sustain the charge of violation of human rights in the conduct of the war both by the armed forces and the LTTE? This needs to be investigated, verified and recorded with due follow-up according to the legal procedures in the country.


Wars are conducted to win and there will no doubt be death on both sides of the combat line in any battlefield. It would be plain chicanery to deny this obvious fact of war. Therefore what we as observers should bear in mind are that no one should be fearful of such investigation. No presumption of guilt, or fear that inquiry is directed with intent to apportion blame on pre-selected groups or individuals should be entertained. It is also incorrect procedure to declare prior to the investigation that the frontline leaders among the forces, the war heroes or the government are ‘above’ investigation. There are no guilty individuals in an inquiry for all are presumed innocent until proven otherwise. What then is the need ‘to jump the gun’ to deny the need for investigation to seek the truth or otherwise of war crimes allegations or to exclude certain categories of persons from the investigation?


There had been claims and counter claims critical of the UNHRC resolution. A serious contention is that the resolution conceals the "machinations to subjugate Sri Lanka to foreign interests" and that implementing some of the clauses in the resolution will diminish the sovereignty of the Sri Lankan state. There is no denying that the absolute necessity to ‘search for the truth’ has got crystallized since the UNHRC resolution, perhaps because of the need to establish a better profile for the country. The delay to get the process moving arises from the difficulty to choose the mechanism to be used – is it a domestic mechanism with Sri Lankan judges alone or is it to be a hybrid court with a combination of local and international judges and other expertise committed to retrieve the truth or falsehood of the charges? The only issue to be established is the truth as opposed to mere allegations.


"We do not need an international investigation, foreign judges or technical assistance from Western countries because we can resolve all concerns through a domestic mechanism" - JHU


Many others from the political opposition in Parliament and outside had expressed similar sentiment. Even the government spokespersons had not been consistent in their stand on this matter despite co- sponsoring the UNHRC resolution. Reacting to critiques of the resolution the government had also stated that the "Sri Lankan Constitution or the Criminal Procedure Code does not provide the establishment of a judicial mechanism with foreign judges to adjudicate alleged war crimes" - Minister Mahinda Samarasinghe. Inconsistency had been the hallmark of the entire process. This has, as can be seen, become a platform where political games are played to garner support to increase the vote bank of the respective groups that thrive on conflict. Such an approach of procrastination over the resolution of an important issue decries efforts at reconciliation between the communities putting a break on national progress.


No doubt that some among the critics in all sincerity believe this to be an unwonted intrusion into the sovereignty and integrity of the nation state. This is looked upon as an ‘intolerable indignity inflicted on the nation’s judiciary’.


It is indeed sad for any Sri Lankan to admit that in the pre January 8, 2015, scenario the country’s law and order, the judiciary and its process was highly politicized and undemocratic institutions and forces dominated taking over the powers of these institutions. The white van syndrome, disappearances, kidnappings and skewed rewards system for retired judges, all this and more, made a mockery of the democratic process. The UN High Commissioner for Refugees, Zeid Al Hussein commented on our judiciary pre-2015 with the words "the country’s history over the past few decades is littered with judicial failures". In such an atmosphere it is not unfair to assume that a fair investigative process by the domestic mechanism was an option to conduct a just investigation into allegations of war crimes. To date what has the domestic mechanism done to clear some of the serious charges levied against us?


However, the law and order system has improved considerably and the judiciary has become relatively independent under the watch of "a consensual government". There are commissions set up to secure good governance in the judiciary, police and other public service personnel. When the legal mechanism is in place, it will contribute to the establishment of a just society. It will not be out of place to utilize some aspects of the expertise in investigative mechanism available in other countries along with the domestic judicial process to conduct investigations. There can be no loss of our national pride or sovereignty because we have been using foreign expertise along with the local for all manner of programs. To date we are proud of our Oxonians and Cambridge wallahs, Harvard and MIT and other prestigious university alumni. Even as recent as the Paranagama commission it was deemed relevant to have the opinions of Sir. Desmond de Silva, David Crane and Sir Geoffrey Nice utilized for the commission’s work. There is no shame in accepting or sharing the wisdom of better research and years of experience of others. Countries endowed with better facilities, better resources and better scholarship will always have an advantage over others. Tapping into their wealth of information is an act of wisdom. It is a fool that thinks he has the advantage in all fields of scholarship. We should in all humility accept the expertise of others while on the watch out that no bias enters the process of seeking the truth to establish the true situation following a fair practice in investigative procedures.


The investigations, it is hoped by those in favour of the resolution, will be a prelude to initiating goodwill for the reconciliation and justice to those entitled to it - a process that was ignored by the previous regime. Too much time was spent on celebrating victory over the terrorists with strategy to initiate healing of war wounds as the next vital step was put on the back burner. Military build-up over security concerns became priority No. 1, thereby creating further fear among war weary people in the North. Dispossession of private land during the war and post-war has created immense discontent among citizens of the North. The people there felt ‘trapped’ with no exit vents for them. Instead of closing the gap in areas of discontent, new problems were emerging creating disquiet within the nation.


The intrusion into our sovereignty claim can be perhaps justified when reference is made to purely domestic affairs such as some issues relating to the deployment of the military in the North and the East, of the correctness of divesting scarce lands to the military, to devolution for better power sharing etc. When, however, inordinate delay is perceived, then the victims are left without a choice but to appeal to outside forces for adjudication. A positive attitude to these suggestions without hurling abuse will be the right way. That there is truth in some of the assertions cannot be denied. The military in large numbers pose a threat and spreads the ill wind of an army in occupation. Both the government and the people of these areas realize the need to reduce military presence and return much of the land taken by the army for security reasons to the original owners. This and improved governance practices will help the people to return in time to normalcy.


Power sharing must be for the welfare of the people and not for the benefit of political leaders. All this can be amicably settled through reconciliation courts. These suggestions originated within the country and the failure to rectify the situation is when other sources have come into play. It is time to look at these issues maturely and not let political-electoral games become the driving force. Empower the people with information so that they will not be blindly led by chauvinists on all sides. Leadership with peoples’ interest is the only criteria for forward movement.


There have been many past leaders who adopt an isolationist policy in order to adopt the non-righteous path. In Sri Lanka, in the last couple of years, policy of friendship and healthy diplomatic dealings were abandoned and a hostile policy of verbal offensive adopted against developed nations largely to detract from the immediate matters demanding resolution. The result was that a very unfriendly environment prevailed in Lankan foreign relations. The foreign relations climate has since improved considerably. It is up to the government to capitalize on this available goodwill with an eye on securing international assistance for investments, restoring GSP+, and lifting the EU ban on fish exports etc. This will help improve the economic health of this country. It would be futile to adopt an attitude of non- engagement.


"When you come to put up your walls anew


…………………………………………


Do not hang your tears for those who departed,


Who will not live with you then,


………………………………………


Else weeping will pierce the sleep,


The brief sleep you have to take."


"To you that build the new house" -


Nelly Sachs


 
 
 
 
 
 
 
 
 
 
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