The following article by Kishali Pinto Jayawardene was first published in The Sunday Times and is republished in full below

A government’s arrogance and a country’s plight

It appears to have gone unnoticed that the annexures to the report of the Advisory Panel to the United Nations Secretary General (UNSG) show that the engagement of the Sri Lanka Government with the Panel had gone far beyond the surreptitious visit of toplevel government officials to New York.

As must be recalled, this visit was first disclosed in this newspaper and denied until it was conceded much later by the Minister of External Affairs. Possibly this concession may have been prompted by the realization that this fact would have anyway come to light through the publication of the Panel report which could not have been prevented by threat, inducement or promise.

Unbelievable arrogance of government officials

But quite apart from this secretive visit, the annexures to the Panel report disclose lengthy submissions annexed under the covering letter of the Minister of External Affairs setting out the Government position. This is the same Panel which the Minister now condemns as being ‘legally, morally and substantially flawed’. If (hypothetically) the Panel had absolved the Government of all wrong doing, would the Minister have welcomed the report as being legally, morally and substantially correct? The answer to this hypothetical question is all too obvious.

So the truth is that the Government assumed that the UNSG, (quite possibly the most indecisive and faltering head of the United Nations that we have had in history), even if he had been bludgeoned into appointing the Panel, would not go so far as to publicly release the Panel report. It also assumed in an unbelievably arrogant manner, that the Panel itself would uncritically accept the Government’s ‘reconciliation’ and ‘restorative’ process.

But the Government thought wrong, got caught proverbially flatfooted and is now seriously embarrassed. This explains the literally bristling anger with which the Panel report was received by President Mahinda Rajapaksa and downwards. Inability on the part of his advisors to comprehend the manner in which the Panel was being lobbied by the pro-LTTE diaspora and to have refuted these efforts by far more than briefing notes and one secretive visit to New York is virtually incomprehensible.

Direct engagement or credible internal investigations

The other option would have been, as suggested in certain quarters, to have rejected the Panel outright and not to have participated in the process at all. Even this approach may have been possible if Sri Lanka had, like Israel, engaged in a credible internal investigation and pulled itself together in respect of its criminal justice processes and important liberty remedies such as habeas corpus. Mere reliance on a Commission of Inquiry exercise does not suffice. Such investigations by Israel were what provoked South African jurist Richard Goldstone to retract at least partially from the findings in his report on Israel’s complicity in war crimes though the other members have kept firm to the original contents.

But even Israel, with all the backing of the United States, was not so brazen as to announce that it went into the Gaza with the gun in one hand and the United Nations Charter in the other.

To maintain, as Sri Lanka has done that, we do not need anybody else to teach us lessons on how to protect our civilians and then do precisely nothing to address the issue of legal accountability, is to court trouble even if not disaster. And to be quite clear, legal accountability does not necessarily mean dragging individual soldiers or a Head of State before courts of law for penal offences committed during the last stages of the conflict.
The other option would have been, as suggested in certain quarters, to have rejected the Panel outright and not to have participated in the process at all. Even this approach may have been possible if Sri Lanka had, like Israel, engaged in a credible internal investigation and pulled itself together in respect of its criminal justice processes and important liberty remedies such as habeas corpus

For example, if it had been less arrogant, Sri Lanka may have shown its commitment far earlier in thoroughly investigating and prosecuting the killers of the five youths senselessly gunned down in Trincomalee in January 2006 or the seventeen aid workers shot at point blank range in Mutur in August 2006. These were incidents that the Udalagama Commission (2005) was investigating but its report was never published.

So when some proclaim that there was little possibility for incidents such as the Krishanthi Kumaraswamy case, (where a schoolgirl was brutally raped and killed by soldiers who also killed her mother, brother and neighbour in 1996), to have occurred within the life of this political administration, nothing could be farther than from the truth.

At least the administration of Chandrika Kumaratunge, whatever may have been its unforgivable part in irreversibly politicizing Sri Lanka’s judiciary, showed political will in prosecuting the Krishanthi case.

Urging a more reasoned approach

And it must be said that the quite inconceivably highhanded tone adopted from the start by the Government in relation to the last stages of the conflict was deplorable. Could even a child accept the statement of the President that the Sri Lankan armed forces, in fighting a foe as conscienceless as the LTTE, had incurred zero civilian casualties?

Could not a more reasoned approach have been adopted? The world surely needs not to have been convinced of the brutality of the LTTE? Such a reasoned approach together with actual changes in Sri Lanka’s democratic systems post May 2009 and commitment to a political solution addressing the grievances of the Tamil people may have gone a long way to establish our case. But what did we have in actual fact?

How can we explain the manifest lack of political will in correcting a flawed legal and constitutional status quo or the stonewalling in arriving at a just political solution for still festering ethnic grievances? Could the 18th Amendment be explained away on any other basis than the unacceptable enthronement of the President? What about the jailing of the former Army Commander? Does the Government really believe that all of this can be swept under the carpet in the name of accelerated development while one family maintains an iron grip on political power?

We need to face the truth. Referring to the Panel at this stage as illegitimate when the result has been against the Government and in the face of strong evidence of direct engagement with it by government officials is of little use. Abusing the members of the Advisory Panel is also counter productive. It will certainly not embarrass the Panel members who are now ensconced in their respective academic and professional corners having completed their tasks.

They would, in all probability, be wholly unaware of these rude tirades. In any event, as one editorialist overseas put it well this week, they are established well enough in their own fields to shrug away accusations of having been bribed and worse.

The taking of corrective measures

Some profess concern for the Tamil people in this country and take the view that the Panel report was entirely mistimed in the ‘reconciliation’ process. But merely parading rehabilitation processes of former LTTE cadre and relaxing a few emergency regulations will not do. At one level, minority concerns must be substantively addressed, never mind the hypocrisy of Tamil parties such as the TNA which welcomed the UN Panel Report insofar as it castigated the Government but disregarded its condemnation of the LTTE (see reference by the Panel to the LTTE being ‘renowned for its brutality’ in paragraph 1 of the Introduction).

At another level, significant Rule of Law concerns must be redressed. These well documented concerns are evident in regard to the constitutional balance of power, our legal systems and most importantly in reference to Sri Lanka’s judiciary and the Department of the Attorney General.

This must be done not because the United Nations calls for it or an Advisory Panel attempts to prove its case for an international investigation by pointing to those very flaws. On the contrary, it must be done because this country deserves it for its own good. We also deserve far better than to court being cast beyond the pale of the community of nations due to the arrogance of a government or the self serving cowardice of its advisors.