There are armed robberies in the entire country. What is the difference? Remember Jaffna was not some kind of heaven on earth where people were living without any criminal activity. For 29 years there was no crime in Jaffna because it was heavily militarized and there was no room for criminal activity by civilians. The indication that there is criminal activity is indicative of the restoration of peace. The amateur robber, the thief is back at work. The pickpocket is back at work, there are rapes, murders. In other words, civilian misdemeanours inclusive of criminal wrongs are taking place. The extra security that Jaffna has enjoyed to make it a sterile place today is no longer there. In other words, there is a complete restoration of civil life and behaviour of civilians includes criminal behaviour which was hitherto suppressed because of regimentation. That is for the community to set up its own mechanisms and the local police to deal with like in any other part of the country. Today Jaffna is like any other part of the country where people are living, laughing and dying.
Jaffna’s ‘civilian criminal activity’ sign that things are back to normal - Mohan PierisBy Namini Wijedasa - Lakbima News
The return of criminal activity to Jaffna is a sign that things are back to normal, says Mohan Pieris, advisor to the Cabinet and former attorney general, who was a key member of the government’s delegation to Geneva. He also spoke about the significance of the resolution passed at the UN Human Rights Council. Excerpts from the interview:
What does the resolution really mean?
The operative clause is the third one. It encourages the relevant special procedures mandate holders (independent human rights experts) to provide, in consultation with and with the concurrence of the Government of Sri Lanka, and advice and technical assistance on implementing certain steps. It requests the Office of the High Commissioner for Human Rights to present a report on the provision of such assistance to the UN Human Rights Council at its 22nd session. The word “encourages” is important because there is no compulsion on either party. It is also subject to this rider “in consultation with, and with the concurrence of the Government of Sri Lanka.” So there must be a consensus of minds with regard to technical assistance on the implementation of the LLRC recommendations. If all those conditions are right, and there is a consensus of minds with regard to Sri Lanka drawing in aid the offer of technical assistance by the High Commissioner, the High Commissioner is also requested to present a report on the provision of such assistance to the Human Rights Council at its 22nd session in March of 2013. The other two clauses are a call and a request to the government to by and large implement approximately 258 recommendations of the LLRC, inclusive of their pet topic of “accountability.” That is what the resolution seeks to do on the surface of things.
What runs beneath the surface?
The nuances of the entire structure have to be carefully considered. Sri Lanka simply says we are in the process of implementing those recommendations. This is not something that is happening post publication of report but from the date the interim (LLRC) report was published. No doubt all of those interim recommendations have not been implemented. But recommendations can be implemented at the right time, in the right way, in the right formula within the parametres of the logistics and the resources available to us. That is an ongoing process. The question we ask is: If the process is on, what is the real need to resolve the obvious? What is the value addition it brings to a process which is currently being implemented?
What are the nuances?
With a resolution such as this, Sri Lanka gets on the agenda of the UN Human Rights Council.
But didn’t we get on the agenda of the Human Rights Council in 2009, when a resolution was passed on Sri Lanka just after the war ended?
We had a resolution in 2009, we made certain pledges in 2009 and we delivered on those pledges. We didn’t get on the agenda of the Human Rights Council. What this (new) resolution seeks to do is to bring us into the agenda of the Council. They are seeking to meddle with or intervene in an essentially domestic process. It is a well known principle of international law that when a domestic process is in progress – and effectively in progress – kind of outside intervention can never and should not be accommodated.
What are the other nuances of the resolution?
They are unable to explain to us what need there is to float a resolution of this nature at this present juncture, except to say this is to “encourage” us to implement the recommendations speedily and expeditiously. There are a number of other ways in which that encouragement can be provided, such as capacity building and financial assistance. In reconstruction, if they really want to encourage us, they could help us with financial and material support without resorting to legal procedures in the Human Rights Council. One begins to wonder and suspect the real motives for this resolution.
Are we going to implement the recommendations of the LLRC?
Not “going to,” we are implementing! Look at what we have done – the reduction of IDPs, the release of combatants. Almost 90 per cent of combatants have been released back to their homes. There’s the restoration of infrastructure, financial services, schools, civil administration including the judiciary, transportation, livelihoods... now what more are we asked to deliver? The only thing they are holding on to is the issue of accountability. Even there, we have set up tribunals.
Weren’t these formed a week or so before the HRC sessions in Geneva?
Better late than never, isn’t it? We have consciously and deliberately set up tribunals.
These are military tribunals. Is it advisable for the military to investigate itself?
Who else can investigate the military in terms of the law? In terms of the Army Act, in terms of the Navy Act and in terms of the Air Force Act, there is a special mechanism set up statutorily for purposes of investigation. You cannot have a civilian investigating the military. When those military tribunals, such as the court of inquiry and the board of inquiry, make recommendations, two things can happen. One is for the Commander of the Army to deal with them through the summary trial mechanism or to set up a court martial in respect of those offences which come within the Army Act. Those who transgress those provisions and go into the realms of criminality – let’s assume there are cases of murder, rape, robbery, grievous hurt, etc., – those papers will be forwarded to the Attorney General’s Department for onward action. In the last 30 years it’s not as though none of the armed forces were ever hauled up before a court. There are a number of instances in which armed forces and police personnel were indicted for murder, indicted for other offences under the Emergency Regulations, under the Torture Act and so on. They have been duly convicted and sentenced to periods of imprisonment, in some cases even death. Additionally, there has been a series of Fundamental Rights applications filed in which the Supreme Court imposed serious sanctions. The army internal procedures and sanctions also visit them and most have been subjected to disciplinary procedures which have culminated in the termination of their services.
But what action has been instituted against the armed forces or police for offences committed during the final stages of the war against the LTTE?
That process has been started now. Any legal process, whether military or civil, has to follow procedures set down by law. These are not kangaroo courts. The law requires a complaint and evidence to support it. This evidence when placed before the tribunal or court must pass muster by satisfying the threshold standard of proof. This is universal. It is only then that we can actually bring home a charge against a suspect. To do anything shorter than that would turn the whole exercise into a cosmetic mockery, a bluff! Then we will have very little regard for the rule of law and would be following a procedure which is unknown to the law.
The government at one time placed immense trust in the LLRC. When critics said its mandate was too limited, the government stridently maintained that its mandate was wide and far-reaching. After the defeat at the Human Rights Council, senior ministers are saying the LLRC exceeded its mandate. What does this mean?
Even our courts sometimes make pronouncements that are outside their jurisdiction. Let us assume for sake of argument – I’m not for a moment saying the LLRC is outside its mandate – that there is an excess of jurisdiction. Now, all that you need to do is to jettison that part of it which is outside its mandate and implement those which are within its mandate.
Why is there no clarity on precisely how the LLRC overreached its mandate?
You’ve got to have a holistic view of the whole thing. All that the LLRC has said can be summed up in one sentence. We have made a host of recommendations that are for the good of this country; that we feel if these things are done the country would be a much better place than what it is now. Now what is wrong with that? Let’s take a broader view rather than being legalistic about it. The whole problem is that we are all very legalistic.
It isn’t being legalistic. I’m surprised to hear vague pronouncements from politicians that the LLRC exceeded its mandate without any explanation of how it did so.
When those persons make that critique, they are not to be misread to mean that the LLRC has gone on a voyage or on a frolic of its own. I can categorically tell you that is not the case. What they are perhaps saying is that it would have been better if the LLRC didn’t venture into unchartered seas, and say more than what the mandate requires them to say. This is easy to say but difficult to do. The mandate embraces a plethora of human activity over a period spanning the peace process till the cessation of hostilities in 2009. It would have been a difficult exercise for the LLRC with such brilliant people who were there to have not said anything outside the strict construction of the mandate.
Will Sri Lanka ignore the resolution?
We are not going to ignore the resolution. It is something we will perhaps take on board as an expression of the will of the 24 nations that voted for it. We are not at cross-purposes with them. We are active members of the club of the UN Human Rights Council. Unlike other countries, we have a record of transparent, clear, coherent, active engagement with the Human Rights Council. We will continue to do that. We will demonstrate sooner than later that we will rapidly move towards a country that is capable of looking after ourselves.
So we will take some action before the 22nd session of the HRC?
I wouldn’t want to put it that way. We will take every measure that we need to take for our own progress – not because the international community wants us to do it. We are not setting ourselves any time frames.
Is there an action plan for the implementation of the LLRC recommendations?
There is an action plan that is presently being implemented. For example, we have identified 258 recommendations and four areas of activity to which they are being compartmentalised. This is one indication of a conscious and deliberate methodology that has been put in place for the purposes of implementation. I can’t give you a document and say this is the action plan. But that kind of document is in the process of being made. It will soon be available. Remember that this roadmap, so to speak, needs the blessings of all the parties concerned.
For the government, this is such a fine line to tread, isn’t it? Politically, it wants to appear defiant. At the same time, it knows that if it implements measures-including what is recommended in the resolution-it will benefit the country. How does it balance the two?
I don’t agree with the word you used, “defiant.” Let’s not be misunderstood. Unlike the US, our defiance is not tied to any arrogance. We are being defiant and saying don’t try to do something for the record, merely because you want it, because you’re mighty, because you’re powerful, because you are arrogant, because you have been meddling with the whole world and messing up in the Middle East, in Afghanistan, in Iraq. We have seen what has happened by interference. Don’t try to meddle with something that is proceeding very peacefully and progressively. That is the defiance we are demonstrating.
Why hasn’t the government yet disarmed paramilitary groups?
The groups are disarmed. I can tell you that in the North and the East, these so-called paramilitary groups have been completely disarmed inclusive of those who are supportive of the government. Secretary defence has gone on record and he is implementing that process very, very strictly. No one is allowed to walk around with arms. And anyone seen to be walking around armed or moving around with arms will be visited with very serious sanctions.
These groups might not be walking around publicly with arms but there have been, for instance, armed robberies...
There are armed robberies in the entire country. What is the difference? Remember Jaffna was not some kind of heaven on earth where people were living without any criminal activity. For 29 years there was no crime in Jaffna because it was heavily militarized and there was no room for criminal activity by civilians. The indication that there is criminal activity is indicative of the restoration of peace. The amateur robber, the thief is back at work. The pickpocket is back at work, there are rapes, murders. In other words, civilian misdemeanours inclusive of criminal wrongs are taking place. The extra security that Jaffna has enjoyed to make it a sterile place today is no longer there. In other words, there is a complete restoration of civil life and behaviour of civilians includes criminal behaviour which was hitherto suppressed because of regimentation. That is for the community to set up its own mechanisms and the local police to deal with like in any other part of the country. Today Jaffna is like any other part of the country where people are living, laughing and dying.
What made you say before the HRC that Prageeth Ekneligoda is not missing, that he is living abroad and you know where he is?
We have repeatedly said that investigations are going on. We are privy to intelligence all the time. I did not at any time say I know where he is. We do not know the truth or the authenticity of the information. On the last occasion this was asked before the Torture Committee of the Human Rights Council, what we said was we were told there was information he may be living abroad, as said in many newspapers by then. Nobody is asking those newspapers from where they got that information. I also said the matter is being investigated. Why do you need to investigate it? To find out whether that matter is true or false!
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