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“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.
Janus Faced War Against Terror
The “war against terror” waged by the Rajapaksha regime was also a war against any person or institution that stood in the way of the regime’s interests. The regime’s popular image as the guardian of national security against the LTTE was largely cultivated through the media, a cynical ploy to enhance its public image and excuse its campaign to dismantle democratic institutions and cover up abuses of power. Several sources have alleged that the government bribed the LTTE with millions of dollars to stop Tamils from voting for Mr. Wickramasinghe during the election of 2005. The LTTEs responsible for mass murder were harbored and rewarded by the government, and after the government lost power, they were allegedly permitted to flee the country. If true, the Rajapaksa regime aided and abetted terrorism under the Prevention Terrorism Act 1978 (PTA).
Under Rajapaksa, the credibility of the justice system was severely undermined, both locally and internationally. Journalists and activists against human rights abuses not even marginally connected with terrorism were charged under the PTA. Journalist J.S. Tissanayagam was imprisoned for creating “ethnic disharmony” by reporting incidents of human rights abuses. At the same time, the regime tolerated those who made explicitly racist claims, encouraged ethnic tensions, and gave instigators influential positions in the government. Anti-terrorism laws by and large provided popular legitimacy for the regime to abuse power with impunity and at the same time stigmatized and punished the victims and those advocated against abuse. Such duplicitous actions typically undermine the ability of any government to combat terrorism without violating the established laws and to remove the obstacles against addressing the root causes of terrorism.
Under the Cover of External Conspiracies
The Rajapaksha regime’s claim to protect the country against external conspiracies severely compromised the country’s economic and political sovereignty. In fact, the regime supported conspiracies against democracy because it protected its own parochial interests. Of course, powerful countries have exploited their alleged concern for human rights, accusing weaker countries of human rights abuses, to impose their agendas. But the Rajapaksa regime refused to recognize that human rights exist independent of these international exploits, and that human rights must be protected, despite such exploits. Bringing human rights abusers to justice and protecting the country from external conspiracies are not contradictory. The new regime can prove this true
Rajapaksha and his followers avoided accountability for human rights abuses by pointing at the hypocrisy of Western countries. But Western hypocrisy does not erase Sri Lankan human rights violations. Nor democratic justice system, allows the accuser’s hypocrisies to free the accused of accountability for crimes, even if the accusers have committed crimes far worse than the accused. Rajapaksha’s crusade against the hypocrisy of the West served as cover for its own human rights abuses and the abuses of those countries that supported Sri Lanka against the West. Conflating the international community with the West and insisting that human rights complaints were only issued by the West allowed the Rajapaksha regime to avoid dealing with human rights complaints that were issued with Sri Lanka, from the local communities of all ethnic groups. These groups received support only from international forums because the Rajapaksha regime built its popular legitimacy on ethno-nationalist ideology that prevented it from addressing human rights in the post-war period, and justified decapitating the country’s justice system.
By the end of the Rajapaksha regime, country has become a fertile ground for external conspiracies when the government dismantled domestic mechanisms for addressing human rights abuses and showed no will to address them. The regime befriended countries with equally questionable human rights records, and these countries meddle in Sri Lanka’s internal affairs, and provide little aid. It was isolated Sri Lanka from the international community, and far more economically and politically vulnerable to international exploits.
The international effort that, along with ideological and material support from the government, defeated the LTTE was hidden from the public. Rajapaksha’s claim that the international community’s sole purpose was to discredit the war and penalize the entire security establishment of the country was false. During the war against the LTTE, the country’s security personnel often acted unprofessionally, obeying questionable orders in a system that created huge barriers against whistleblowers. Even in the world’s most professional armies, human rights violations of international humanitarian and military codes of conduct are common. To maintain the credibility of the military, crimes during wartime must be investigated. Investigation is also required when the parochial visions of the ruling class degrade civilian and military law and allow human rights abuses to go unchecked. This blurring of the boundaries between military and civilian affairs opened the way to militarizing the country, politicizing and polarizing the military, and undermining its autonomy and international mobility. By connecting the national security establishment with the global military industrial complex, the regime also commercialized the national security apparatus, mainly for the benefit of private businesses.
Security forces unfairly took most of the blame for human rights abuses, while their political bosses have escaped accountability. By representing security forces as guardians of national interests—defined in ethnonationalist terms—the state racialized the identity of the military, which added to international concerns about it’s role in human rights abuses in Tamil-speaking areas. Turning the military to humanitarian tasks became a way of expanding the role of the military in development and rehabilitation projects. It was part of a general project to transfer the locus of accountability from civilian to military law, and to immunize the regime from civil law. By militarizing the society, the government not only hijacked the war dividends, but also closed the international and domestic avenues for the public to address their grievances of human rights abuses. After Rajapaksha lost the election, the architects of national security secretly fled. Those at the apex of the security establishment, who had unduly benefited from the architects’ patronage, now face an uncertain future. Will we ever be able to maintain a healthy relationship between the security forces and civil authorities without bring them to trial to determine if they violated the military and civilian laws of the country?
The Rajapaksha government’s defensive stand against international resolution of human rights violations was based on naïve and shortsighted theories of geopolitical relationships in the region. Their approach increasingly isolated the country from the international community made our economy more vulnerable, and threatened our political sovereignty. Rajapaksha regime indebted us to countries that have little interest in democratic dialogue for human rights, and that are infamous for funding dictators, as long as they are given access to natural resources and unconditional opportunities to further their own geopolitical interests.
The search for truth and restorative justice for victims was never the central focus of the government’s defense against international human rights resolutions on Sri Lanka. Instead, the foreign policy establishment drummed up ethno-nationalism to boost the domestic image of governance and solicit economic support from the international community. Neither was the search for truth the main concern of the Lessons Learned and Reconciliation committee, initiated by the government under international pressure. The government never fully implemented its recommendations so that it can please those forces that are opposed to reconciliation with justice for those affected by the war, hence further polarized the country.
The government’s defense at international forums was ideological, and had two disastrous consequences. Its fight against a credible independent investigation enmeshed the country and the entire foreign policy establishment in a prolonged, costly and utterly fruitless battle with the international community, which benefited only the authoritarian and highly militarized system Rajapaksha government in Sri Lanka. The regime made a mockery of the country’s diplomatic community by giving diplomats no flexibility to present credible arguments in defense of Sri Lanka at international forums. The government was primarily concerned in defending itself against international resolutions against its human rights abuses. It was not concerned with the needs of the victims, and particularly ignored women and children. Instead of seeking reconciliation, restitution and justice, it built barricades to fend off the rule of international and domestic law, protect the immunity of rulers, and expand the flow of foreign aid and investments from countries that had little regard for human rights and little interest beyond their own gain.
The Rajapaksha regime institutionalized racist ethnoreligious nationalism as a divisive ideological force, increasing tensions between and polarizing ethnic groups. The Geneva deliberations were an embarrassment to the country, where educated officials postured and refused to speak to international concerns about the delicate relationship between human rights abuses and national reconciliation. The Sri Lankan government was primarily interested in distracting public attention from its dismantling of democracy and its attempts to consolidate power. The regime patronized racist ethnonationalist forces in direct violation of the country’s law against creating ethnic disharmony. Although these racist policies did not help it win the election, the culture that it institutionalized must be changed before the new government can address the minority question. The question we must ask if we are to balance retributive and restorative justice is, “To what extent have these policies created a culture of immunity for the regime that violated the laws against creating ethnic harmony, corruption, and terrorism?”
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. There are also allegations that the top layer of politicians and their close allies made tremendous amounts of money on these projects, in commissions and unlawful contracts. The Central Bank repeatedly told the public lies about the country’s economic well-being, which ought to be punishable by law. It arbitrarily invested Employee Provident Funds in commercial markets and lost billions. These violations of the laws were carried out when Mr. Rajapaksha functioned as the Minister of Finance, and while his two brothers Mr. Basil Rajapaksha and Mr. Gotabaya Rajapaksha, respectively, controlled the Economic Development and Defense Ministries. .
Two wrongs do not make a right
Although corruption is endemic in Sri Lanka, and it is infeasible to bring every individual to justice, we can still punish those responsible for fostering corruption. We can recognize the fundamental differences between a policeman and a gramasevka who a bribe or uses their power to enhance personal wealth and business, and the misbehavior of those in apex-level decision-making positions. The latter have created the environment in which corruption flourishes, and have used corruption to prevent dissent. Their abuse trickles down to lower levels, creating the environment in which the policeman or gramasevka can rationalize taking a bribe. Those who used political influence to bypass and accumulate colossal amounts of wealth, land and resources, who created and disseminated misinformation for the decision-makers, who assumed influential positions in private sector institutions and claimed disproportionate amounts of the country’s wealth, have fostered a culture of patronage that undermined the stability of the regime.
Finally, power of the people and courageous law abiding civil and military offices defeated the culture of impunity of the Rajapaksha regime. They have provided yet another opportunity to liberate the political culture from the masculinized forces of nepotism, militarization, racism, and the violence of neoliberal development. Many of those who shaped this culture have abandoned the country, have hidden behind the immunities granted them, or have crossed over to the opposition, abandoning the lower-ranked politicians, civil servants, and journalists who patronized them. If these forces are not held accountable and the justice system is not restored to its due status, prior to the next general election, the hurriedly formed new ruling coalition composed of disparate parties will crumble into disarray, and the country will lose this unexpected opportunity for democratization. The Siresena regime has to act prior to the next general election!
Transitional justice and Good Governance
The rationale underlying the ECTJ is based on the notion of transitional justice. It is an approach to achieve justice in times of political transition from prolonged period of conflict and/or authoritarian rule to democracy. By trying to enforce accountability and redress victims (e.g. individuals, community and the state) needs, transitional justice seeks to promote civic trust and empower the justice system to uphold democratic rule of law. Transitional justice can radically improve democratization by drawing on both retributive justice and restorative, the mechanisms of which include contextually specific criminal prosecutions, truth-telling, reparations, amnesty, and institutional reforms.
In retributive justice, each criminal perpetrator would be punished with imprisonment and would be forced to make financial restitution to the individuals and the state commensurate with the severity of their crimes. Punitive justice is less concerned about change, reconciliation, healing and open dialogue. It is only concerned with “only what rule or law was broken, who did it, and how they should be punished.” Often vengeance is the driving force of punitive justice. This ought to be a major concern in a society in such as Sri Lanka, in which from the Executive President to the provincial Councilors considered themselves as immune to the law, bringing everyone to justice is nearly impossible and could potentially create an anger-filled environment that would make governance impossible.
Transitional justice treats taking care of the interests of victims of culture of impunity and creating a culture of accountability as complementary objectives. From such perspective, the goals of restorative and retributive justice mechanisms are not opposed to each other, nor are one inherently superior to the other. Justification in favor of punishment in restorative is based on the assumption that “offenders are mentally competent and hence morally culpable actors, and they should take responsibility for the consequences of their actions.” (Kathleen Daly, 1999).
The restorative justice formula views not bringing culprits to justice or exaggerated leniency of punishment as compromises of the integrity of the justice system. Such compromises only help injustices grow in secret and recur with a vengeance in future. If we punish those who abused their power, then we reduce the likelihood that perpetrators will “[relapse] into crime, through creating fear of punishment.” Punishment stigmatizes the political culture of the last regime, assigns it the responsibility for all the crimes it committed, and restores people’s respect for democracy. Justice brings reconciliation by ending gruesome human rights abuses, and this enhances the public’s trust in the new regime. It reinforces society’s “adherence law and order, and thus impede the creation of a culture of impunity, as well as the reemergence of victims’ desire of revenge, due to feelings of wrath and unfairness.”
Pardons and concessions should follow only after the law metes out all legal and appropriate punishments to the perpetrators, and they have returned all their unlawful gains. The probability that perpetrators will commit similar crimes in the future must also be assessed. Compromising and procrastinating on justice will not end to the culture of retaliation or help create strong foundation for a democratic political culture. Only strong, uncompromising political will can do that, if could insulate the functioning of the ECTJ and the country’s justice system from unlawful political interferences.