by Kusal Perera

Balendran Jeyakumari was arrested with her then 12 year old daughter in March 2014 on charges she possessed two stolen mine detectors. Lugged in remand prison for almost a year, she was allowed conditional bail in March, 2015. She had to report to the nearest police station every last Sunday of the month. Yet there are no charges filed against her with only a B” Report holding her as an accused for over one and a half years. On 02 September there were reports, war affected families in Mannar were on protest against the proposed domestic investigation, demanding instead an independent international investigation on all war related crimes. There was the possibility this protest would spread across Vanni. That same day, Jeyakumari was noticed to appear before the Kebithigollewa Magistrate’s Court. On Wednesdays the MC sits in Padaviya. She was to be remanded again. Her lawyer appealed for bail while the police objected. She was granted bail but with strict conditions.

Yes, Jeyakumari was a very prominent affected mother in most protests and agitations in North and Vanni that demanded answers for missing persons. Her arrests, detentions and remand smacks of revenge and victimisation over her role as a campaigner on disappeared persons. This is quite common in the North and East and if one says, the numbers are far in between, the answer is also in it. Far in between as people fear to take up issues that would question law enforcement agencies and the security forces. Therefore those who dare challenge authority and stand for rights like Jeyakumari are targeted. The few like Jeyakumari are all the numbers we have. This can be harsh and dirty in the war torn North-East, but it is also brutal and inhuman elsewhere in the country.

Gerald Perera a torture victim in the Wattala police station who was in coma for two weeks and a witness in the Appeal Court trial case on torture was shot dead in broad day light while traveling in a bus on 24 November, 2004 a day before he was to testify in the case. D. G. Premathilaka who filed a fundamental rights petition against arrest and torture by police in January 2004 was again intimidated, arrested and tortured by Katugastota police. There is also the case of Channa Prasanna Fernando another torture victim who was kidnapped but escaped murder while his case was being investigated in 2004. Another torture victim from Matale J.V. Saman Priyankara was alleged to have received death threats in 2004-2005 demanding he drops his case. Lalith Rajapaksa from Kandana who filed a fundamental rights petition against the police for torture had received threats demanding he either withdraws the petition or settle it amicably”.

There are many more cases where torture victims have been threatened, intimidated and harassed to desist them from continuing their FR petitions against police, including Saliya Pushpa Kumara of Puttlam even obstructed from receiving medical treatment and family members of Chamila Bandara of Ankumbura receiving threats and harassments to stop Chamila Bandara proceeding with his FR petition.

It is only after almost 15 years since the first draft was done in year 2000, Sri Lanka saw the light of day in 2015 February, a bill passed in parliament to assist and protect victims and witnesses of crimes. That long delay and neglect in providing assistance and protection to victims and witnesses of crime need no explanations. After that decade long lapse when the bill was brought to parliament this time, it was challenged twice in the Supreme Court and hiccups in parliament compelled sittings to be prorogued. Impunity is part of life and a who cares” culture accepted by especially the Sinhala Southern society adds more to impunity.

It is in this Sri Lanka that the new Yahapalanaya” government led by both President Sirisena and PM Wickramasinghe in coalition promises an independent, impartial domestic inquiry into war related crimes. This is being backed by the US for reasons of their own, with a third Resolution promised at the next UNHRC Sessions in Geneva in end September to facilitate a domestic investigation supported by the international community. Assistant Secretary of State for Democracy, Human Rights and Labour Tom Malinowski who was here in double quick time after the August 17 elections with Nisha Biswal US Assistant Secretary of State for South and Central Asian Affairs in his meet with the media as reported in the Colombo US Embassy official website says,

For that process (war crimes probe-My emphasis) to be credible, I don’t think it has to be a completely international process, but it does have to be independent of political leadership.  It has to be led by people who are trusted by the minority communities and it should have some degree of international involvement, even if it is a domestic process (emphasis added) organized under the laws of Sri Lanka [unquote].

The issue here in Sri Lanka is, even with some degree of international involvement”, how a domestic process could ensure victim and witness protection”. It is obvious no Commission member however impartial, independent and with commitment could ensure victim and witness protection”. The issue therefore is more about our law enforcement system and its agencies than about people who are trusted by the minority communities” who’d be members of the Commission.

We have a law enforcement system with agencies that have long been allowed impunity and now, impunity for them is what comes along with their duty. It wasn’t the case when for the first time in our history an army officer (volunteer force) attached to the 3^rd battalion of Gemunu Watch, Lieutenant A. Wijesuriya along with another, Amaradasa Ratnayake were indicted, a trail held in Galle Courts and sentenced to 16 years of RI for torture and murder of a suspect JVP insurgent Premawathie Manamperi in April 1971. That was not seen happening thereafter. And that was when impunity was consciously nurtured by successive government beginning with the 1977-88 Jayawardne regime.

The organised goon attack on Prof. Ediriweera Sarachchandra and Maduluwave Sobhitha thero in 1979 when Prof Sarachchandra’s book Dharmishta Samajaya” the first salvo against JRJ’s neo liberal politics was launched at the All Ceylon Buddhist Congress hall was perhaps the beginning. There was no loud cry for investigations and the President Jayawardne did not let loose those goons to investigate and punish later. A far more sinister and brutally organised crime was the pogrom against Tamil people in July ’83. No one asked for impartial inquiries, nor was the government prepared to investigate their own crimes against Tamil people. Not when President Jayawardne was on record telling the Daily Telegraph Really if I starve the Tamils out, the Sinhala people will be happy”.

Impunity in Sri Lanka grew with such conscious political patronage and not merely on neglect and State inefficiency. It was so even under President Premadasa. Worst during his time was what was put in place to crush the JVP insurgency. Horrendous end to the bloody JVP insurgency was played out with the custodial killing of Wijeweera, Gamanayake and few other hard core insurgents. To date there had been no investigation to this and the present JVP leadership too does not ask for an impartial investigation to the killing of their leader and others. They remain comfortable with publicity on commemorating November Heroes” playing catalyst for impunity.

Chandrika Kumaratunge’s period too wasn’t different. By 1994 when she was voted in for a change, impunity” was not in the political or human rights lexicon of this country though very much a part of law enforcement. Instead of working to curb the growth and embedding of impunity in the system, she also took advantage of it. Thus grenades thrown at SL editor Lasantha Wickramatunge’s residence and torture, physical abuse and possible kidnapping of Rukhantha and Chandraleka were just flushed off while investigations to the murder of Satana” editor Rohana Kumara in 1999 September also called a cover up” job. Not surprisingly, all cases of murder, intimidation, threats and harassments related to torture victims and witnesses listed above were cases of grave impunity during Chandrika Kumaratunge’s tenure as Executive President from 1994 to 2005 November and includes the abduction and murder of Dharmaratnam Sivaram (Taraki) in 2005 April, a case that still gets dragged on in the Colombo High Courts for the past 10 years.

Added was the fact that our police department, a civil department that was rightly under the Home Ministry, had been brought under different ministries since 1977 as Internal Affairs, Law and Order and most ridiculously under the MoD. This was justified with armed rebellions and insurgency both in Sinhala and Tamil societies. Law enforcement under Emergency Regulations by the police for the longest duration first began in 1971 with the JVP insurrection. Since then continuous and unchecked rule under emergency regulation had allowed all recruits to the police department to think, work and use emergency regulations as just day to day regulations that can be beaten and rolled into any shape they wish to have. That was one large canvass to cover up impunity.

By the time Mahinda Rajapaksa entered as Executive President in November 2005, this system with impunity well entrenched wasn’t ever questioned for over 28 long years. Rajapaksa’s political campaign to end the separatist” Thamil Eelam war from around 2006 that got off the hook with the Mavil-aru debacle in July-August 2006 doubling into a massacre of aid workers in Muttur, allowed for a very strong Sinhala social ideology. This gave impunity a license to crawl all over society at will and by the time the war was declared victoriously concluded, State security forces, very much the military had also entered the picture big time. Impunity thus became another word for patriotism” with Sinhala war heroes”. The military thus became a strong politico military factor in governance that decided how far war related investigations can be allowed. Where investigations were given space due to international and regional pressures and commitments, the military intelligence was reported to have visited many victims and witnesses in the Vanni and the North.

Impunity allowed and nurtured by political regimes for over 37 years, law enforcement agencies enjoying that unquestioned freedom in their own way, the military is still a spoilt child under this new government that Biswal was happy ignoring when she said, We have seen not only this enduring commitment to democracy, but also just a tremendous momentum of progress toward institutions of good governance, toward combating corruption and toward promoting reconciliation”. The military still decides what land how much to give up for the displaced in the North with Sirisena never failing to stress on national security” and our war heroes” whom he says would never be allowed to be investigated into. Thus the ideology that allows impunity to be patriotic” will remain a dominant factor in Sinhala society. It is Sinhala politics that decides how fair and decently the Tamil society should be treated with. The only reason why all mainstream Southern political parties now pledge an uncompromised Unitary” State and why PM Wickramsinghe is talking of a politically centralized society with district committees” given ministerial status and a bigger largesse of State funds for development”.

Unless this Sinhala supremacist mind set is challenged politically and the society is systematically and effectively de-militarised, there will be no space for victim and witness protection” despite laws enacted. And there is no other way too to  provide victim and witness protection”. Often in societies like ours, it is not absence of laws that really matter. It’s the lack or inability to enforce that matter most. That in turn closes any possibility of having an independent and impartial domestic mechanism” despite rhetoric growing around it.