BASIL FERNANDO
Serious problems in relating to rule of law sometimes amounting to its
collapse altogether have become a serious impediment to the realization
of human rights in many countries throughout the globe. The
situation is not made any different by the mere fact of ratification of
the ICCPR if the rule of law situation becomes an impediment to
realization of rights. The human rights frame work articulated by
the ICCPR presupposes a basic function of an institutional framework
within which violation of rights are so addressed, as to sustain a
faith among the people that practical realization of rights in fact
exists. When such a basic faith in the institutional framework of rule
of law is absent, human rights projects themselves are in serious
peril. The ratification of the ICCPR and other gestures of the
state to create the impression of compliance of its international
obligations in such circumstance does not generate much enthusiasm
about human rights but on the other hand often create cynicism of the
idea of human rights protection itself. Thus, obligation of the state
to respect, protect and fulfil human rights is intertwined with its
obligation to maintain rule of law within an institutional framework
that is credible and trust worthy. In this respect the function
of three institutions in particular is of the utmost importance.
Those are institutions relating to investigations of violations of
guaranteed rights, the prosecution branch and the judiciary.
Given the fact of serious problems of rule of law prevailing in many
parts of the globe the workings of these institutions call for a closer
study if human rights are not to be relegated to mere wishful thinking.
The function of investigation belongs to the institution of
policing. Many studies from various parts of the world highlight
various types of problems existing in policing institutions. Some
such problems may be related to historical reasons such as periods of
repression in which the police function is often confused with the
function of the military. Prolonged periods of civil conflict can
have an impact on policing, as can the lack of political space to
develop into an independent policing institution. However, there
are even more difficult situations where due to various reasons the
mode of criminal investigation commonly used is torture and this has a
tremendous impact in building an overall resistance to the introduction
of human rights standards. The worst example is where policing
systems builds close links with criminal activity and corruption.
On the other hand there are countries which have successfully developed
policing systems that work within the framework of rule of law and are
therefore able to protect human rights. The means by which
policing systems with serious problems can be transformed into a
law-abiding institution is therefore a vital need. The Human
Rights Protectorate has a serious stake in this matter.
The next most important institution that links rule of law and human
rights is the prosecution branch. From the studies of many
countries it appears that there can be various types of problems
relating to the prosecution branch preventing it from performing an
independent role in maintaining rule of law. In some instances
the powers of the prosecutors are limited by law so that in many areas
there are no laws enabling the prosecutors to intervene on matters that
may affect the basic rights of the people. In other instances the
lack of resources made available to the prosecuting branches make it
impossible for them to carry out their functions in a manner which will
convince the public of their capacity to play a serious role in
maintaining the rule of law. The worst instances are where the
prosecuting branch is so politically controlled that its decision to
prosecute is determined by direct or indirect political
directives. Sometimes the power plays between the institutions
themselves can have a tremendously retarding capacity on the
prosecution institution making it unable to function effectively.
For example, law enforcement agencies or security agencies under
certain circumstances can have so much influence on the capacity of the
prosecuting branch to take appropriate actions purely on the basis of
law. Whatever the circumstances the overall impact such a
situation has on the minds of the population is that there is no
effective prosecution to be relied on to protect their basic
rights. The impulse to pursue rights is suppressed under these
circumstances.
The third important branch is the judiciary. Again, studies into
many countries from around the world also suggest circumstances under
which the judiciary cannot perform the type of functions required in
order to maintain rule of law. In some circumstances the
limitations are constitutional or based on law. For example in
some countries judicial review is not permitted or permitted only to a
very limited extent. On the other hand there are many instances
when the procedural developments are so negative to the functioning of
the independence of the judiciary. The work of the judiciary can
also be hampered by limitations of resources preventing it from having
sufficient numbers of judges, courts or other facilities, which are
needed for the efficient functioning of the judicial system. What
is more troubling are circumstances under which there can be direct or
indirect political control of the judiciary. Studies by the
Rapporteur for the Independence of Judges and Lawyers have demonstrated
many such forms of impediments to the functioning of the judiciary in
an independent manner. Besides this the limitations in the
investigations branch and the prosecution branch as mentioned above
also impact the proper functioning of the judiciary. There are
other instances when the adjudication in cases can take an extra
ordinarily long time. Such delays militate against the principles
of fair trial. The witnesses can suffer serious threats and other
forms of violence during such long periods. The complainants may be
forced into settlements and thus abdicate their rights under such
circumstances.
Thus the obligations that a state may undertake by the ratification of
the ICCPR may on the other hand be negated by serious problems
affecting the rule of law within a particular country context.
The situation is so serious in many countries that the attempt to
introduce the human rights concept by way of education and other
methods is often resisted by the local population who point to the
basic absence of legal safeguards as impediments to the realization of
rights propagated by the Human Rights Protectorate.
When the functioning of the basic institutions of the rule of law face
acute crisis there are instances when the people take the law into
their own hands. For example a mob can catch an alleged thief and
take him to the market place where he is then beaten to death.
Similarly, such punishments can be given for murder, rape and even
traffic offenses. For example, an accidental killing in the road
can lead, not only to assault or even murder of the driver, but also
even an attack on the police station when there is a popular
frustration of the ability of the police to control traffic in the
roads. This same situation can even lead to the development of
parallel justice systems. Sometimes public opinion decides what
is just punishment where the law fails to have a hold on society.
Other instances are religious or other codes are brought into play
however much the particular forms of adjudication and punishment by
such means offends the norms and standards accepted as universal within
the human rights discourse. It is not possible to counteract such
development without at the same time trying to re-establish the
confidence in the rule of law.
Where there are basic problems relating to the rule of law within the
three institutions mentioned above the introduction of subsidiary
institutions such as national institutions under the Paris Principles
cannot do much to alter the situation. The effectiveness of
national institutions depends on the basically proper functioning of
policing, prosecuting and judicial branches. Therefore if proper
attention is not paid to this central issue much of the resources put
into the promotion of national institutions may bear little
result. In fact it has been often argued by many in different
parts of the world the national institutions can be used purely as a
propaganda tool for international reasons without having much bearing
on the actual realization of rights. The actual realization of
rights by national institutions will depend on the capacity of the
basic institutions of the rule of law being able to function in a
credit-worthy manner within a country context.
Under these circumstances, studies by the Sub-Commission into the
functioning of the police, prosecution branch and judiciary in
supporting rule of law and thereby enhancing the possibility of the
promotion and protection of human rights is an urgent need. Such
a study will enrich the international community about the actual
problems of the realization of rights faced throughout the world.
This is even more necessary due to the fact that in more developed
countries a basic framework of the rule of law through a relatively
well functioning police system, prosecution branch and judicial system
exist. The Human Rights Protectorate both within the countries
and regionally find support from this basic foundation of rule of
law. Often persons who are nurtured in such countries may fail to
understand what it means to live within a context when these very basic
institutions themselves act as impediments to the realization of rule
of law. Out of such a study it is possible to create a discourse
by which the international community can play a supporting role in the
development of basic institutions of rule of law and thereby be able to
concretely achieve the goals of promoting and protecting human rights.
Background to the Disappearances
Mass Murder and Constitutional Insanity
Basil Fernando
An over simplified explanation
There have been several attempts to explain the disappearances that
took place in the south of Sri Lanka from 1987 to 1991. Some
explanations come in the form of official documents such as the reports
of the commissions on forced disappearances, while some come in the
reports of international agencies such as the UN Working Group on
Enforced or Involuntary Disappearances. There are also other
explanations offered by individual authors by way of books and articles.
However, almost all these documents explain the disappearances as a
consequence of a civil conflict or 'war' between a group of insurgents
known as Janatha Vikmukthi Peramuna (JVP; Peoples' Liberation Front)
and the police and armed forces as directed by the government of the
day. While this explanation is simple and convenient enough, it fails
to explain the large-scale disappearances that are conservatively
estimated to number over thirty thousand men, women and children, most
of whom were killed after the police or armed forces secured their
arrest.
This simplification of the causes of the disappearances is the result
of a failure to arrive at a proper analysis of the political situation
that developed after the July 1977 elections and which continues up to
this very day. There were some major changes that took place in the
political management of the country at that time, which were so far
reaching that even today there seems to be a general consensus that the
very nature of this political transformation should not be examined too
deeply. The political transformation began with a massive electoral
victory of a two-thirds majority for the ruling party, which was used
to completely overhaul the political system of the country. Part of the
reason this aspect is not examined is because such an examination would
expose one of the most bewildering crises that can be faced by a
country from a constitutional and political point of view.
A crazy constitutional experiment:
Montesquiean vs. Bokassan
The transformation achieved through a constitution promulgated in 1978
created a political system in which the executive (President) was the
core. This was a complete change from the broadly Montesquiean approach
of the previous constitutions, to a Bokassan model. It is this
tremendous transformation that not been examined. Only the
Constitutional Affairs Minister of the former regime, Dr. Colvin R de
Silva, pointed this out immediately after Prime Minister Jayarwadene
transformed himself into the Executive President in the same style that
Jean-Bedel Bokassa [1] crowned himself as emperor. He wrote in an assay
titled 'New-Style President' that "The example of Emperor Bokasso
(Bokassa) of somewhere in Africa is now available. And Africa
seems to be the source of the new-style President ideal."
The similarity between the two situations was not just in the manner of
appointment but the very substance of the model of governance that was
introduced into the country. The separation of the branches of the
government as executive, legislative and judicial remained only in
name; the wielder of the real power was just one man, the Executive
President.
Falsification about the French style
With an overwhelming majority that the President's party had in
parliament, there was hardly any opposition possible against this
transformation. What was worse was that many legal luminaries joined in
the praising chorus for this constitution. There were also political
scientists who energetically promoted the constitution, saying that
there is now a constitution that combines the elements of the de
Gaullean model with the Westminster Model. They saw the Executive
President as someone wearing nice clothes and demonstrating the higher
aspects of constitutionalism, and thus the Bokassan face of the
Executive Presidency was well disguised. Sri Lanka hereby jumped into
one of the most primitive forms of governance, and with this
transformation began all the nightmares that were to bedevil the
country in the decades to come. Tragically, the nightmare continues.
In this new system however, the absolute powers of the President
depended on having a parliament with a two-thirds majority to
rubber-stamp whatever the Executive President wanted. In 1977 there was
this possibility, but as the years went by it was quite clear that such
a situation would not remain permanent. The Executive President had to
preoccupy himself in fighting and eliminating all those who could
damage the position he had in parliament. This meant suppressing
elements from within his party itself, which he did through many
unscrupulous methods, including obtaining undated resignation letters
from party members in parliament. He also had to suppress the major
opposition, which was from the next most established party, the Sri
Lanka Freedom Party. These attacks have been well recorded and much
documentation on these events is available.
The need for violence
However, when with the years the opposition deepened, the defense of
the Executive presidential system required the extensive use of
violence. Thus one of the most violent periods in Sri Lankan history
began to develop more or less at the same time as the Executive
Presidency.
There was one difference in the Sri Lankan Executive President when
compared to Bokassa: Bokassa declared himself the lifetime ruler of the
Central African Republic, which the Executive President in 1978 was not
in a position to do so. However, the ambition and scheme for this
purpose was clearly there. To achieve this end gradually, he had to
keep the majority in parliament; for this purpose he deliberated a
referendum in which the people were asked to give a further period of
life to the parliament without an election, creating further confusion
and resistance throughout the country. Such a move could only be
achieved through widespread violence and for this purpose the ruling
party itself was transformed into a physical fighting force which
spread into the remote corners of the country. The natural consequence
was that anyone else who had political ambitions had to organize
themselves in a similar manner. The capacity for violence and counter
violence became the mode of existence within the country.
Such violence was not accidental: when a political model that people
have been accustomed to is abruptly transformed into something
completely different, its very survival depends on the possibility of
maintaining a high state of confusion within which rational debate and
a rational settling of disputes becomes impossible. The more the
violence deepened, the more it helped the Executive Presidency to
survive.
Corruption
Violence also helped the Executive President in another way. It helped
to create a new layer of friends who would want the Bokassan style of
governance to continue. These were the elements that preferred 'free
play' for their corrupt practices. The Executive President broke all
the laws that in the past had controlled corruption. In fact, he
created a psychological mode in which the corrupt were rewarded and
encouraged. It is reported that many letters of complaint were received
against those in the regime who were corrupt. These complaints were
sent directly to the persons against whom they were made, giving them
the opportunity to take revenge against the complainants. Impunity for
corruption was no longer hidden, rather, it was one of the fundamental
facts of life which anyone who was wise had to learn and live with.
The underworld
From such corruption rose another phenomenon with a new impetus: the
underworld. The growth of the underworld to the extent that it
exists in Sri Lanka today originates from the political transformation
that started to take place with the new style of governance introduced
into the country. All areas of life came under the influence of the
underworld. In fact, everyone who vied for any social position had to
surround themselves with the patronage of the underworld. Of this, the
politicians of the ruling party themselves were the prominent
protagonists. Whether it was the politicians who were living under the
patronage of the underworld or it was the underworld that was thriving
under the patronage of the politicians is hard to tell. Perhaps the
more accurate version is that they were mutually dependent upon each
other.
Deadening effect on policing
All these developments had a deadening effect on Sri Lanka's policing
system. This system was already in need of serious reform by 1977, as
pointed out by several government commissions that had studied the
matter. In fact, everyone was aware of the problematic situation
regarding the policing system. However, instead of reform, what
happened within the Bokassan model of governance was the complete
collapse of this system. The policing system was assimilated into
directly supporting the political system. The Bokassan political scheme
could not survive with any form of an independent police force.
Corruption naturally spread faster into the policing system, which is
of course a common phenomenon anywhere. The barometer of corruption in
any society is its affect on the policing system. The elimination of
corruption in any society also begins with ways of controlling it
within the policing system.
Controls over abuse of power
Thus within a few years of the actualization of the political model of
the 1978 Constitution, all controls that had existed within the state
to limit the abuse of power had collapsed. All social arrangements of
the previous years had given way to the new system. The rhetoric of the
old system such as the rule of law, independence of the judiciary and
the need for checks and balances merely remained as talk amongst some
liberal elements, with no relevance to the new political reality. The
resulting situation was beyond anyone's control, including the
Executive President.
Polarization
As pointed out above, the new style of ruling needed much violence to
keep people's minds diverted from forming opposition to the political
scheme. The Executive President did everything possible to manipulate
all the existing political contradictions, using them as an excuse for
the application of emergency and other powers to enhance his own
position. From the beginning of his rule a war had already been
declared on the Tamils. Such an ethnic camouflage was quite
useful to hide the development of a dictatorship. In fact, Tamil
liberals themselves looked to the Executive President as their only
possible savior, as they believed that a dictatorship would be more
successful in resolving the ethnic conflict than a majority ruling
parliament. By 1983 however, the government itself organized a riot
against the Tamils in Colombo, drawing in support from some sections of
the military. Perhaps the political impressions created by this riot
went beyond anything calculated by the Executive President and actually
worked to undermine the particular president in power at the time. It
also consolidated the institution of the Bokassan style Executive
Presidency in a more solid manner. The war was to divide the
north and the south and the north and the east. The logic of the war
was that it would preoccupy the minds of the people. With such a war
milieu, any political challenge to the new political scheme was no
longer possible.
The third term
Despite all this, after the 1982 Referendum the Executive President had
to preoccupy himself with what he should do in order to continue in his
position when his second term of office was over. There were two major
problems. The constitutional limit to the presidency was two terms and
an extension would require a constitutional amendment, which of course
was not impossible if the parliamentary majority he had could be used
to rubber-stamp the amendment. On the other hand, even if he were to
continue for a third term he would need a further extension of the
parliament without an election. Under the circumstances, he toyed with
the idea of imitating Bokassa fully and returning to a monarchy. Many
political events of the time, many political speeches and even a case
before the Supreme Court where a Solicitor General argued that the
incumbent Executive President was the continuation of the Sri Lankan
monarchy, bear witness to this idea of returning to monarchy that the
Executive President was toying with.
International outrage and scapegoats
However, by then there were many problems facing the regime. The 1983
riots had created international outrage against the regime and there
were internal problems within the Executive President's party itself
about succession. The unquestioned position of leadership he had in
1977 was beginning to erode. In order to survive he needed more
violence in the country and some unusual circumstances which would help
him to survive beyond his second term.
Since the July riots of 1983 there was violence enough in the north to
declare an open war. As scapegoats for the riots, the Executive
President named several left-wing political parties. The media then
reported a great plot masterminded by the members of those parties,
naming several individuals. Many of them were arrested and some went
underground. In this manner, the scheme for massive suppression in the
south was laid out. The beginning of this scheme was the declaration of
this plot, which had no basis in any factual situation; in fact, it was
the ruling party that masterminded and executed the riots with the
connivance of the police and security forces. This purely imaginary
problem was only part of an unrealistic political ambition, which saw
the Executive President emerging from the chaos in the north and the
south as a lifetime dictator.
Provoking violence
Among the groups that were declared as instigators of the July 1983
riots, was the JVP. It was a democratic party by then, to which no link
to any violent schemes could be established. However, having been
forced underground and being hunted it developed modes of brutal
retaliation, as did the militant elements in the north. The escalation
of violence led not only to the adoption of draconian laws but also to
the authorization of any form of violence by the police and security
forces. In fact, the police and security forces were transformed into
militia fighting against forces threatening the state. The
disappearances in the south, which we are speaking of here, were a
product of this authorized violence.
The JVP's alleged acts of extremely brutal violence were well made use
of as propaganda to camouflage the extensive use of violence needed for
its survival by the political system. However, the actual target was
not only the JVP but all those who could be opponents of any schemes
introduced by the Executive President.
A false explanation
If it was in fact the JVP who were to be suppressed, then there would
have been no need for killings after arrest. In fact, those who were
arrested and had connections with the JVP would have provided the best
evidence against the leaders who plotted such schemes. Such evidence
would have proved a case against the perpetrators of such violence
before any court of law. Moreover, such evidence could have created a
databank of political information against them. The liberties given to
the police and the armed forces however, were not for this purpose.
They were not for the purpose of creating better investigative
facilities and methods in a time of crisis. Rather, the powers were for
the purpose of encouraging the police and security forces to operate
violently and commit acts that would in normal circumstances be
construed as criminal offences. Such criminalization of the police and
security forces created the type of disappearances that occurred at
this time.
Target everyone
The force of violence, once let loose, cannot even be controlled by the
initiators. The force develops its own course like wildfire and
destroys the very fabric of society. The target of the violence
gradually includes everyone. In many of the inquiries into the cases of
disappearances, parents and relatives have complained of innumerable
innocent people being killed, including young boys and girls. According
to the statistics provided by the inquiry commissions, about 15 per
cent of the total number of disappeared were persons below the age of
19 years. Many parents have claimed that their children were killed due
to false information given by a jealous neighbour. In fact, no one who
lived through this period would challenge the notion that people used
those moments of chaos to take personal vengeance against others. The
sheer madness of the situation consumed innocent lives. This is no
surprise. The abnormal political situation created by the Bokassan
scheme and normal life could not coexist. The scheme of the Executive
President ensured that the whole nation would be thrown into chaotic
violence. It is impossible to seek an explanation for such violence in
any way other than in connection to the political transformation that
was forced upon society at the time.
Holder of office irrelevant
With such widespread violence occurring all over the country, the
particular holder of the position of the Executive President was
becoming irrelevant. The Bokassan scheme had become so consolidated
within Sri Lanka that it even consumed its ambitious creator. By the
end, the first Executive President had become nothing more than a
pathetic figure. Hatred was rife amongst those closest to him and
a number of those who wanted to be his successor lost their lives. No
name has been more cursed by people of all beliefs and ideologies than
that of the first Executive President. Despite this, the political
scheme that he created had become so consolidated that his surviving
countrymen have found no way to escape living under a Bokassan model of
governance.
Retarded imagination of constitutional
experts
The constitutional imagination of the legal and political experts has
virtually dried up in Sri Lanka. While everyone--including those who
openly supported the 1978 Constitution--laments over it, there has not
even been an attempt to escape from this political and constitutional
scheme. Since the early nineties, the Constitutional Affairs Ministers
could think of nothing except a few amendments to this scheme, and even
for that no methodology could be evolved. Thus, a hated system survives
because the constitutional imagination of the country and also of those
outside experts who have from time to time come to the rescue of the
country, have not been able to generate ideas that can shake the roots
of the Bokassan system.
Experts are also unwilling to come to terms with the tremendous
political and constitutional transformation resulting from the 1978
Constitution. This would imply the abandoning of most material written
since the late seventies not only regarding law and politics in the
country, but also relating to most social sciences. One constitutional
expert completed his doctorate in the early eighties on constitutional
law in Sri Lanka under the tutelage of a reputed western constitutional
expert later told the author of this article that, "I do not study
constitutional law anymore, I may someday write about constitutional
history."
A false interpretation
The first Executive President in the early years of his power accused a
senior constitutional lawyer in the country of not understanding the
new constitution. This was an attack on the attempt to interpret the
1978 Constitution in the same manner as other constitutions--that is,
within the conceptual framework of other constitutions. The legal
profession by and large, as well as the courts, have like the lawyer
thus accused, tried to interpret the 1978 Constitution with a broadly
Montesquiean conceptual framework. By such attempts, some continuity
with earlier constitutions has been claimed. However, in doing this
actual constitutional and political reality has been missed. The 1978
Constitution has nothing to do with the constitutional framework of the
earlier two constitutions. What took place in 1978 was an abrupt
rupture with the past. It was an act of forced discontinuity.
Perhaps because consciousness usually lags behind real developments,
the legal and political experts of Sri Lanka failed to understand or to
accept there was no such continuity anymore. A completely alien set of
assumptions and conceptions to the basic democratic notions were
introduced in 1978 while maintaining only the façade of
terminology.
Lamenting the collapse of institutions
These attempts of trying to interpret a Bokassan constitution in
Montesquiean terms have resulted in nothing positive. As years go by,
the lamentation that all the basic institutions of democracy such as
the parliament, courts, law enforcement agencies and other bodies have
lost their value as democratic institutions has become common. In fact,
literature to that effect is plentiful. The 17th Amendment to the
Constitution itself was proposed on this basis. The most influential
lobby for the 17th Amendment also included the former ruling party
under the first Executive President, now in opposition. Their own
speeches and announcements reported in newspapers at the time bear
acute testimony to the admission of the collapse of all basic
institutions of democracy.
The fundamental fallacy of the 17th
Amendment
However, the 17th Amendment was not an attempt to fundamentally
displace the 1978 Constitution. It was an attempt to find a way to act
within the institutional framework of the state as if the 1978
Constitution did not exist. Such an attempt of course is both
constitutionally and politically naive as long as the dominating
institutional ideal is an absolutely authoritarian one. Attempting to
get some basic institutions to function outside their framework only
demonstrates desperation and not resoluteness to do away with the basic
cause of the institutional tragedy in Sri Lanka, which is the
conceptual framework of the 1978 Constitution.
Another suggested 'solution' to the present impasse has been to change
the post of the Executive President and to return to the Westminster
type prime-ministerial system. Although this alone would not
alter the overall scheme of the 1978 Constitution and its impact on
existing institutions, even the promises of such a return were never
realized.
Why no investigations, no prosecutions?
In this way, the consolidation of the political scheme of the 1978
Constitution--for which the sacrifices of large numbers of people were
made, including those of the disappeared persons in the south--still
continues. For this very reason all attempts to find legal redress to
innumerable cases of disappeared persons have proved futile. Some
attribute the failure to obtain redress to political leaders. Others go
further and say that since those persons in law enforcement agencies
and the military who carried out the disappearances are still holding
powerful positions, it is only natural that no meaningful redress can
be obtained. Many also say that powerful politicians themselves were in
one way or another involved in the political violence of the time and
they would not want any serious inquiries into these vast
disappearances. Perhaps there is some truth in these statements.
However, despite these same factors in other countries, they have had
successful attempts at justice. The difference is that in situations
where justice was possible, there was a substantial political change
preceding the displacement of the dictatorial framework within which
the acts of violence were committed. Until there is such a fundamental
political and constitutional change in Sri Lanka, displacing the
Bokassan scheme altogether, justice in Sri Lanka is dead, not only
regarding the disappearances but also regarding all abuses of human
rights. Moreover, the administration of justice system itself will
remain fundamentally a system that promotes and safeguards
institutional injustices.
The constitutional impasse and ethnic
crisis
A common complaint these days is that despite the cease-fire there is
no progress in solving the 'ethnic crisis.' However, the real
problem is that no conceptual framework exists to resolve any of the
major issues within Sri Lanka, including the issue of ethnicity.
Looking for isolated solution only to the problem of 'ethnic crisis' is
a constitutional illusion. Unfortunately people often have to pay in
blood for constitutional illusions.
The only voices of sanity amidst
constitutional insanity
The families of the disappeared whose stories are told in this book may
to appear to some as voices of a small minority within Sri Lanka.
However, they are not. They are those who have most acutely experienced
the basic crisis that is shared by all, whatever be their race, gender
or ethnicity. Speaking of the particular tragedies that they have
faced, these families are undertaking the sharpest form of expression
of an acute crisis. By telling their stories these families are
breaking the silence about the most fundamental aspects of the Sri
Lankan society that many today want to keep silent about for various
reasons. These families however, cannot afford to remain silent.
As it was told of the Hiroshima and Nagasaki survivors, such families
are the real saviours of society if they are listened to. Theirs are
the only sane voices in a country that is constitutionally insane.
These families are also aware how murder became almost a game in Sri
Lanka. All facilities were provided by the state for security officers
and other underground elements connected with such forces, to engage in
any acts that might lead to murder in the most casual manner. As shown
by the inquiry commissions, people were kidnapped from homes,
workplaces and roads even in full view during daylight hours. One group
handling the kidnapping would hand over the victims to others who had
different parts to play. Detention centers of all kinds were set up
everywhere and the play went on in sometimes little and other time
large theatres. Sadistic creativity could be exercised in whatever
manner the players imagined. The gruesome nature of these acts, which
were done in the name of interrogation and that came from the
imagination of those who were the 'guardians' of law, makes it too
painful to even narrate. The third act of the play after the
'interrogations' was the killings. That again depended upon the wish of
whosever role it was. The fourth act of the play was the disposal of
bodies. This was again left to the sadistic imagination of those given
the role. Floating bodies down rivers, lining them up on roads, burning
them with tires and exhibiting beheaded bodies in public, exhibiting
the naked bodies of women with bottles inserted in their private parts
and anything else that came to the sick imagination of the perpetrators
was sanctioned.
Memory
As the survivors of these families look back at what happened to their
loved ones, they are aware that any of these acts could have been done
to them, such being the situation of law enforcement in the country.
Many today wish to forget such things as past atrocities.
However, surviving families remind society that the legal framework
within which these acts were committed has not undergone any
fundamental change. Particular emergency laws that authorized any form
of violence for the sake of national security may have been withdrawn
under local and international disgust, but the basic constitutional
structure that made both the acts and the laws possible remain
unchanged. It is of course often said that many who masterminded
and carried out these acts are still holding high posts. One such
officer reportedly tells his friends that he "missed the fun of not
being able to kill someone at least, now and then." The degenerated
psychological condition that made these acts possible continues to be
the basic psychological ethos still prevailing, despite the claims that
things have changed. Nothing has been done to exorcise this
degenerated psychological condition. No one has made any apologies. No
confessions have been asked for or given. Tacitly, cynical laughter is
what the political and legal establishment is able to offer the
families of these persons and anyone else who cares to raise any
questions about them. Even UN agencies such as the UN Human Rights
Committee and the UN Working Group on Disappearances have not been
spared such cynical treatment.
Tears
As the stories narrated here show, tears are choking these families
even now, many years after these incidents. Tears are also running in
the heart of any and all decent citizens who had the misfortune of
sharing this bitter knowledge of political management and law
enforcement in their country. In the midst of this these families and
citizens find it hard to believe that there is anything resembling an
independent judicial system in Sri Lanka. There has not been a
single event to demonstrate the judicial outrage against the gravest
crimes that the political and legal establishment allowed to happen. In
the overall Bokassan scheme of things has the judiciary any space to be
independent? [2]
Thus, the only voices of sanity in the country today are those who are
crying in pain. These families have done this for over a decade
now. And they will continue to do so for the rest of their lives. At
some stage, will the national conscience--if there is any such thing
remaining--prove capable of responding to their pain? The answer to
this question lies in whether or not the Sri Lankan people will prove
capable of escaping from the Bokassan scheme in which they are trapped.
Footnote
1. Jean-Bedel Bokassa was President of the Central
African Republic from 1966 to 1979. Having come to power after a
coup, he became President and Prime Minister of the Republic and
declared himself President-for Life in 1972. He abolished the
Constitution of 1959 and issued a constitution of his own. He
crowned himself as Emperor of what he called the Central African Empire
in 1977. He was overthrown by a coup in 1979 and lived in exile
in France until 1987 when he made an attempt to return. He was
arrested and charged with torture, murder and cannibalism. Convicted of
murdering several political opponents, Bokassa was sentenced to death
but the sentence was commuted to life imprisonment. Bokassa’s was a
crazy political style making constitutions for the maintenance of his
own power. [Back to contents]
2. In this regard the following comment on the first
Chief Justice under 1978 Constitution is relavant. [Back
to contents]
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