Where is the political will for justice?

By Yasasmin Kaviratne

“Dad, help me, the forces are around me,” were the final, desperate words Dr. Kasipillai Manoharan heard his son, Ragihar, utter before the loud boom of a grenade explosion ended their phone call. At the time, Dr. Manoharan was trying to reach Ragihar where he said he would be at – Trincomalee’s Dutch Bay beachfront. When he was near, the Army denied him entry, beaten and held at gunpoint. Dr. Manoharan then heard screams and saw flashes of gunfire. A few hours later, he was at the morgue, identifying the bullet-ridden body of his son.

Thirteen years later, Dr. Manoharan, and the loved ones of four other boys killed that day, still awaits justice.

The case of the “Trinco 5”, as it has come to be known, speaks to the failures of Sri Lanka’s criminal justice system and the enduring impunity for crimes under international law and human rights violations. There were commissions and recommendations aplenty. There were clear commitments made at the UN Human Rights Council (UNHRC), but justice continues to prove agonisingly elusive, when it comes to mass graves, torture, extrajudicial executions, enforced disappearances, and other horrors that scarred entire communities during the 26-year-long internal conflict.

A history of impunity haunts this island. Crimes committed during the two youth uprisings in the late 1970s and the 1980s and during the conflict have failed to be addressed. Successive governments promised to carry out investigations and prosecute all those suspected of criminal responsibility, but uniformly failed to do so. It is tempting for some to resign themselves to a culture of entrenched impunity, but there are ways out of this gloomy predicament.

Strengthen criminal investigations

The first step towards redemption is to establish impartial, fair, and accountable institutions. There is a desperate need to strengthen criminal investigations, shore up the Attorney General’s office and embolden a judiciary that is robustly independent. For too long, Sri Lanka’s criminal justice system was tainted by selective attempts at justice and the glaring neglect of emblematic cases.

As readers will recall, Prageeth Eknaligoda’s disappearance, and Lasantha Wickrematunge’s and Wasim Thajudeen’s murders were all cases that were highlighted in election campaigns by politicians vowing to mark a decisive break with the past. In Prageeth’s case, the military is not cooperating with the CID investigation, refusing to disclose crucial information on grounds of “national security”. The CID reportedly traced Prageeth’s last known whereabouts to an army camp in Giritale, and yet, nine years after his disappearance, no indictments have materialised.

There were some welcome advances on the UNHRC Resolution 30/1, but progress remains frustratingly slow. When it comes to accountability, there is little to show at all. The Government’s attitude to the progress of justice recalls an old Sinhala adage: “Hingannage thuwale”, or, “a beggar’s wound never heals”.

There are hundreds of parents who last saw their children nearly a decade ago in May, 2009. They were told to surrender them – and other family members – to the Army for “screening”, but have not heard from them since. Many parents still cling to the hope that their children are still alive, immured in some secret detention facility. Others have abandoned the prospect of their families being reunited, having made an excruciating peace with the fact that they may have been killed. Either way, they deserve answers.

We still do not know the names of all of those who were snatched away from their loved ones that day. It’s been nearly three years since the court in Mullaitivu ordered the 58th Division of the Sri Lanka Army to submit the list of everyone who surrendered. The Army has failed to comply with the court’s order. Will the Government follow up on the demands of the parents? Will President Maithripala Sirisena publish the lists of the names?

Reform should address impunity

We see a similar lack of political will when it comes to the fate of the disappeared. To its credit, the Government established the Office of Missing Persons (OMP). The OMP since published an important interim report, making key recommendations – including a call to “ensure prompt and effective investigation and prosecution of enforced disappearances as well as their non-recurrence”. But will these recommendations be acted upon? We’ve seen the government machinery move swiftly when it came to tackling bribery and corruption – but we haven’t seen anywhere near the same eagerness when it comes to addressing human rights violations.

In the case of the “Trinco 5”, surviving witnesses are afraid to come forward to provide testimony. The former Minister of Law and Order Sagala Ratnayake tweeted in response to a query on Twitter that the case can proceed now, as the new reforms have allowed the use of Skype to give evidence from a Sri Lankan mission overseas.

However, this revision to the witness and victim protection legislation is not sufficient as witnesses still do not feel comfortable going to Sri Lankan missions to provide evidence. The Act needs further amendment if the Government genuinely wants to address impunity.

Another example is the Prevention of Terrorism Act (PTA). The draconian legislation was in violation of international law on many counts. In 2019, the Act remains in the books, not repealed. The proposed Counter Terrorism Act (CTA) is not the change the Sri Lankans asked for. In many ways, the PTA and CTA are similarly abusive – they both grant disproportionate power to law enforcement officials, with loose definitions of what constitutes the offence.

The Government that came into power in 2015 made a pledge at the UNHRC that they would look into allegations of human rights and international humanitarian law violations. What we see instead is the Government backtracking on these promises based on age-old “national security” grounds. National security is important, but it should not be invoked as an excuse to protect criminals.

Yasasmin Kaviratne is a Research, Communications, and Campaigns Assistant at Amnesty International