CBK, War Crimes And The Rule Of Law

by S. Ratnajeevan H. Hoole

  • Judges are notoriously scared and take political decisions, or are corrupt and at times communal
  • Killers need to be punished and not celebrated as heroes
  • Douglas Devananda and EPDP MP Chandrakumar, admitted to the massacres of and use of cluster bombs on civilians during the last phase of the war in Mullivaikal
  • In communalist eyes, the murdering soldiers are heroes. The murdered civilians are nobodies
It is reported that President Chandrika Bandaranaike Kumaratunga (CBK) has stated that there is no need for a war crimes probe and that the need is for a new constitution. It is a major flip-flop for someone who publicly cried at the Justice K. Palakidnar Memorial Oration on 24.07.2011 over her son’s and daughter’s comments after seeing the Channel Four documentary. Her son sobbed on the phone saying “how ashamed he was to call himself a Sinhalese and a Lankan.” Her daughter expressed “shock and horror that our countrymen could indulge in such horrific acts.”

To have no war crimes tribunals is to trivialise the deep shame felt by her children, and abort and reverse their growth she proudly and rightly boasted of about their growing up “to be the Man and Woman their father and mother wanted them to be.”

The Daily Mirror (02.02.2017) reports her criticism of the Consultation Task Force on Reconciliation Mechanisms (CTFRM) headed by Manouri Muttetuwegama for recommending foreign judges.  The CTFRM is merely repeating what all Sri Lankans know – that many of our judges are notoriously scared and take political decisions, or are corrupt and at times communal. Prof. S. Pathmanathan has pointed out that even the judgement on the de-merger of the North-East Provincial Council was politically motivated. In short, our judges are partial and can be bullied. They are unprofessional as evident in the withdrawal of foreign observers (i.e., the International Independent Group of Eminent Persons) from the Presidential Commission of Inquiry into Alleged Human Rights Abuses in March-April 2008, finding a “lack of political will to find the truth.”

Therefore in calling for foreign judges in the light of the well known view of our judiciary, the CTFRM was merely repeating a promise before the whole world at the UNHRC. There this government under Ranil Wickremesinghe and President Maithripala Sirisena affirmed the “importance of participation in a Sri Lankan judicial mechanism, including the special counsel’s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators.”

Those who wish to save our murdering soldiers know how politically partial our judiciary is and do not want impartial foreign judges. This seems to include our President Sirisena who is quoted in Economy Next (12.10.2016) as saying “military commanders who led a successful campaign to crush separatist Tamil Tiger rebels in May 2009 should not be humiliated by bringing them to courts.” In other words, total impunity and hero-status to those who butchered Tamil civilians in the tens of thousands.


Collateral damage

These communalists see in the happenings of 2007 as only the end of the LTTE. They are blind to the tens of thousands of civilians held hostage by the LTTE while the army bombed them into nonexistence, seeing their massacre as collateral damage. In communalist eyes, the murdering soldiers are heroes. The murdered civilians are nobodies.

The President of the National War Heroes Front, Sarath Weerasekera, says (Island 27.01.2017) “Anyone who betrays the country should be charged for treason. [T]reason is an offense punishable by death. Unlike those who do not have any faith in the local judiciary we are fully confident that our judges are fully capable of defining Treason and punish [sic.] accordingly.”

Our judges? Recall the Bindunuwewa massacre where surrendered LTTE-ers in rehabilitation were massacred with the connivance of the police and the army, and a Supreme Court Justice repeatedly pointed out that a child soldier of 12 who had been killed was a terrorist. It was a rare case where the Attorney General had prosecuted the army but the judges freed all the accused although they had been found guilty by a Presidential Commission of Inquiry. Many Tamils feel that the prosecution was mainly a show put on for international donors.   I suspect that as UNHRC is about to meet at month’s end, the government is getting ready to let the soldiers off because of upcoming elections.

I have travelled much in the North East. I have no doubt that massacres occurred. It was only this week that I visited a home run by the Sisters of Charity and heard of how the soldiers dumped 500 wounded persons on them after there had been wanton shelling from the army camp. My secretary told me that she was with her infant grandchild and gone to a place announced by the army to collect infant food, only to be shelled by the army. A driver spoke of bombs all round in a declared safe zone, and he could see little because it was a constant series of flashes. Tamils know!

These crimes were admitted with President Mahinda Rajapakse on the stage, at the election rally at Duraiappah Stadium in Jaffna on January 2, 2015 when both Douglas Devananda and EPDP MP Chandrakumar, admitted to the massacres of and use of cluster bombs on civilians during the last phase of the war in Mullivaikal. At that time, responding to President Rajapakse’s claim to fame for ending the war, CBK had countered that she had been the one to capture 70% of LTTE territory. That is when the EPDP duo felt the need to boost credit for Rajapakse in ending the war. Lacking in imagination, they asked whether CBK would also accept 70% responsibility for the massacre of Tamil civilians in large numbers during the war and for the use of cluster bombs, both stoutly denied by the government up till then.  They went further. To blame challenger Sirisena, they alleged that the use of cluster bombs had been authorised by him, then Deputy Defence Minister, in the President’s absence. It was a volte face for Devananda who had earlier repeated President Rajapakse’s obviously untrue claim that troops had fought with the human rights charter in one hand, without even a single civilian casualty. It was the first time that there was official admission of the mass murders or of the use of cluster bombs by the government.


Fair war crimes probe

Except for a few, the Sinhalese are in collective, selective amnesia de nying that all this happened. Anyone who says there is no need for a truly independent, demonstrably fair war crimes probe is essentially saying that those who deliberately murdered Tamils have a free pass. I do not think that CBK has thought through her new position.

President Sirisena might have good reasons for not wanting a serious probe of the war crimes that occurred because he himself could be investigated. But Madam Chandrika? I have respected Madam CBK over the years and supported her in many ways. However, in not wanting a real probe of war crimes as reported by Ms. Muttetuwegama and the CTFRM after canvassing opinions across the country, she is wrong; absolutely wrong!

CBK heads the Office of National Unity and Reconciliation (ONUR).  There can be neither unity nor reconciliation when there is no justice for those civilians who were butchered by both sides during the war for the simple reason of their being Tamil or refusing to remain as a human LTTE-shield.

CBK argues that the need is for a new constitution not a war crimes probe. We really need both. Good laws on paper are no good when we are a people who do not live by the law. For example, we have the Thirteenth Amendment. Of what good is it when it is not implemented fully? In a political situation where the state cheats and the Supreme Court and Presidential Commissions of Inquiry collaborate, only those guilty of war crimes will root for a piece of paper in the form of a constitution that is never obeyed.  For example, there were trumped up charges against me on the basis of Minister Devananda’s complaint in 2011 that I had started a riot by reporting (untruly he claimed)  the rigging by him of elections in Kayts. Every few weeks I was in court where the court sergeant would pull me by my arm and make me stand where he wanted me. The Police Prosecutor would make lengthy statements in Sinhalese (which I never understood) asking for more time to investigate. This despite the constitution/law requiring Tamil to be the language of the courts in the North and a Supreme Court judgement to that effect!  It was only last week, after five years, that the judge dismissed the case saying he has no jurisdiction and that the police keep saying they are investigating but he has seen no signs of such investigations and no longer believes that there is any investigation on. The fear of the old regime permeates the police and the judiciary.

Of what good then is the law when the people implementing the law are bad or fearful of retribution? Madam Kumaratunga: please do not waver from the correct positions you have taken in the past. Stay the course you boldly took in 2000 and in rooting for change in 2015.  Every crime needs to be punished as a deterrent. No probe means, a free hunting season on Tamils. Your government cosponsored a resolution calling for foreign judges. Why the sudden change? Did you lie then? If you persist in this, you will be giving proof to the claim of the separatists that the Sinhalese are always lying and that we Tamils must go our own way. Sensible people do not want that.

We want justice, not more words, empty promises and constitutions and laws that are never taken seriously. We want the rule of law, to return us to which your government was elected. Killers need to be punished and not celebrated as heroes.

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