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An end to culture of retaliation: Transitional justice in Sri Lanka | Jude Fernando

18 January 2015

print version of this article print version - 17 January 2015

“In the absence of justice, what is sovereignty but organized robbery?”—St. Augustine

“When will our conscience grow so tender that we will act to prevent human misery rather than avenge it?”—Eleanor Roosevelt

Former President Mahinda Rajapaksha did not gracefully turn over power to Mr. Maithripala Sirisena after losing the election and step down peacefully as the President of the Sri Lanka Freedom Party (SLFP). Those claiming he did are dressing an autocrat in gentleman’s clothes and sanitizing the abuses of power by him and his regime—abuses unprecedented by any government since our independence from the colonial rule. Those who exploited the authority and privilege with which they were entrusted for their own personal gain must be held to account, or we will never succeed in changing the culture of impunity that allows corrupt officials to avoid punishment for their crimes. Impunity stands as an obstacle in our progress toward a justice-centered culture of governance.

I propose that the government appoint an Executive Committee for Transitional Justice (ECTJ). It would serve as a mechanism to build a law-abiding culture of governance by helping the country’s justice system and the new regime in power to strike a strategic balance between retributive and restorative justice. Retributive justice is defined here as a systematic infliction of punishment on those abused of power and privilege entrusted on them to serve the public, and restorative justice is defined as a systematic response to make amends to the victims (i.e. individuals, communities, and the state) of abuse and to restore their entitlements. Together both forms of justice seek to bring positive outcomes for the entire society. An important emphasis here is to end the culture of punitive retaliation, without compromising justice for the victims.

Two immediate tasks of the ECTJ are to profile the abuses of power during the Rajapaksha regime, and to facilitate legal proceedings against the abusers. ECTJ should focus primarily on those occupied at the apex levels of decision making in the areas within which abuse of power took place: politicians, Departmental/Ministerial secretaries, high-ranking civil servants and the private businessmen allied with them, who abused their privilege and authority for personal gain and created the environment for others to do the same with impunity. ECTJ should ensure these influential people are held accountable for their misdeeds by lawful administration of penalties and they will not be subject to punitive retaliation to serve personal and political ends of those now controls the state power. The ECTJ could also minimize the politicization of charges against the opposition that arises when they are managed primarily by politicians and complement the Bribery Commission that has lost its credibility under the Rajapaksha regime.

Retaliation and Accountability

Sri Lanka is notorious for post-election retaliation against members of the losing party. The Rajapaksha regime survived by rewarding those who were loyal, brutally punishing dissenters and depriving those it punished of access to the justice system. During this period, allegations of theft of public property, murder, abuse of power and accumulation of wealth through unlawful means were more extensive than under any other previous government. These injustices vertically and horizontally networked, so people at every layer of governance were linked to these crimes. Bringing all of these people to justice would entail an endless process and require colossal financial and human resources. But ignoring these injustices will make a mockery of the justice system, normalize the political culture the new regime seeks to transform, establish the new regime on a shaky foundation and create opportunities for those seek to sabotage the regime.

Holding the guilty to account is a non-negotiable prerequisite for success of the good governance mandate we have given Mr. Siresena’s government. Investigations are not enough. We need convictions and punishments, and these cannot be sidestepped by weak claims that “everyone” has committed crimes. The justice system is functional and we must let it do its work, or the new regime will be vulnerable to the same forces, and even the same actors, that we now intend to replace. It is a mistake to think that offering amnesty or pardon, or procrastinating in the pursuit of justice will lead us to a better place. The history of truth and reconciliation committees has shown us that the truth alone will not set us free. We need truth followed by swift and sure legal consequences for those whose misdeeds threatened to detour our nations efforts towards democratization.

That the consequences be legal, and not a product of extralegal vengeance, is essential for ending the culture of post-election retaliation. A respect for law and order is the bedrock of a democracy where citizens are accountable for their actions and must repay society for the injustices they have committed. Failure to enforce or postponing punishments for those who abuse power while in decision-making positions will reinforce that same political culture that the new government purports to transform and make the new regime vulnerable to the same practices that led to the downfall of its predecessors.

A major challenge in pursuing accountability is managing widespread public anger against the regime because it’s decade of corruption and abuses of power that is so extensive and has infected the entire social fabric. If we do not adhere strictly to the rule of law when we mete out punishment, and if we exact vengeance, we will perpetuate the vicious cycle of post-war retaliation. Vengeance violates the principles of proportionality and fosters animosity, anger, hatred, bitterness, and resentment. Justice is served by trying people for their crimes, determining their guilt in a fair court of law, and punishing them in proportion to their offenses. Sentences serve a dual function. First, they ensure us that crime has consequence. Second, they remind us that punishment has limits, and that a person who has repaid his or her debt to society may be reintegrated without prejudice. When we take vengeance instead, we make perpetrators eternal hostages for their past misdeeds and we fail to recognize the innate human capacity to become critically self-aware of their misdeeds and to change for the better. We must reject vengeance for a balance between retributive and restorative justice, placing responsibility for wrongdoing and redress on the individuals who committed crimes.

Striking this balance requires we be sensitive to the political rapture of the post-war and post-authoritarian context. Some forces loyal to Rajapaksha have pledged to form a new government in 97 days, but it is too soon to expect the opposition to offer to be accountable and ready to function functioning in a law-abiding culture of governance. Their political egos are still intact, and they have not completely lost their hold over the undemocratic forces that provided them with virtual impunity from rule of law. Efforts toward democratization will be impeded if those who abused power receive absolute immunity and escape justice. They should not be quickly integrated into the new regime. For the new government, time is of the essence, since the opposition will doubtless use all the means at its disposal to sabotage its successors. In more nuanced approaches to transitional justice, ending a culture of punitive retaliation and holding those politicians and public servants accountable for their misdeeds by lawfully punishing them are not considered as contradictory but complementary objectives. I shall return to discussion of transitional justice after a brief analysis of the breath and severity of abuses of power during the Rajapaksha regime.

Ignominious handover of power

Until the last minute, the Rajapaksha’s campaign’s abuse of power and state resources was unprecedented in Sri Lankan post-independence election campaigns. Even when ballots were being cast, the Rajapaksha regime continued to abuse its power and privileges. Rajapaksha did not accept “the results of the election in the proud tradition of peaceful and orderly transfers of power in Sri Lanka.” A person who hands over power gracefully runs a lawful election campaign and concedes power to the winner. He and his regime did everything they could prevent people from expressing their choice. By the time voting ended, President Rahapaksha had tried every undemocratic personal and institutional means to remain in power. He may even have made a failed bid to engineer a military coup to retain power when it realized the election was lost. If allegations of a coup are true, then this is an offense against the state punishable by imprisonment and confiscation of property under chapter six of Sri Lanka’s penal code.

In its post-election news conferences, the regime only emphasized its achievements and did not acknowledge that its attempts to undermine democracy had cost it the election. Mr. Rajapaksha “thanked the people of his electorate who voted for him and said the people from North and East didn’t vote for him.” He completely ignored the Sinhalese and Muslims who voted against him, including the fact that he was defeated by the Sinhala leaders, and he implied that Tamil vote was an act of vengeance, to punish him because he had been victorious against the LTTE. In his opinion Tamil voters does not seem have the same stature as those who supported him, and that Tamil’s demand for justice is equal to LTTE’s demand for Eelam. This is the same attitude that has long polarized the country along ethnic lines, and violates the country’s laws against creating ethnic disharmony.

Mr. Rajapaksha and his supporters continue to remind the people that his party still had a majority in Parliament, and his supporters have retained him as the head of the Sri Lanka Freedom Party. Their bid to return him to Parliament to rebuild the opposition may violate the Party’s constitution. Post-election behavior of this sort gives us no confidence that the members of the old regime are prepared to abide by the rules of democracy. Instead, they show their commitment to recapture power by any means. Though it is the democratic right of any member of the Rajapaksha regime to participate in politics and civilian affairs, they must be made realize that conditions have changed. Mr. Sirisena’s ability to fulfill his mandate to create a culture of good governance will be compromised if he fails to hold the Rajapaksha regime accountable simply in order to consolidate his (Sirisena) hold on the Sri Lanka Freedom Party.
[. . .]

Development as day light robbery

Corruption was widespread in pandemic proportions in development projects. The regime boasted of its development schemes, but they were mechanisms by which a minority, patronized by the regime, accumulated wealth while dispossessing the majority. Vast majority of the population is insecure in the satisfying their basic needs.

The development projects- many of which are white elephants-have not been subject to competitive bidding, public audits and environmental and national security assessments. Many speculate that these projects have been forced on the country by investors after paying a “ransom to handful of people.” The expenditure on development projects has far exceeded their actual monetary cost. Financial aid and high interest loans are misallocated and diverted to private hands. Many of these projects are not economically viable, have trapped the country in debt. According to Moody’s, “Sri Lanka’s external debt is now 59 percent of GDP ($US55.2 billion of which 44% is due to foreign borrowings), the highest in the Asia Pacific after Mongolia.”

The investors of these projects have violated laws and protocols and made the country economically and politically vulnerable external forces. Some of these mega projects are directly managed by countries that are notorious for lack of transparency and use them to extend their geopolitical controls over the south Asian region. Military interventions in these projects enabled them to by- pass the direct accountability to domestic civilian authorities. [. . .]



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