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Mannar Mass grave, Karannagoda case and how the due process would vindicate the Sri Lankan State

12 March 2019 12:27 am - 0     - {{hitsCtrl.values.hits}}



y last week’s column has caused some contention. Certain things need to be clarified. Two former security forces commanders, Lt. Gen Daya Ratnayake, former commander of Army, and Admiral Tisara Samarasinghe, the former commander of Navy telephoned me to tell that they did not oppose the legal action being taken against the former Navy Commander Admiral Wasantha Karannagoda.   
Their intervention has been misrepresented, they said, adding that they had no objection to legal action being taken against any members of the security forces where there is a prima facie case. But, they observed that the existing procedure that is being followed in investigations tend to discriminate against the security forces members.  That was in response to my reference to the press conference held by three former commanders of security forces two weeks back.  
An excerpt from Gen Ratnayake at the press conference: “We do not have a problem with prosecuting soldiers and officers who have committed crimes, however, our problem is the current procedure being followed. A procedure that respects the dignity of their office should be adopted in investigating these offences. We request the President and the government to intervene into the matter and resolve issues faced by military personnel.”  

“When there is Geneva sessions, we suddenly react, like the fish that jumped out of water, and arrest soldiers, prolonging their legal cases. There are reports in media, Admiral Karannagoda is also about to be arrested. Admiral Karannagoda is the former Navy Chief who defeated the sea Tigers. He has done a huge service to the country. Also in the recent past, there was an attempt to arrest the current chief of defence staff, the chief of staff of the Army and members of the intelligence wing. Most of them have been released, often without a charge.”  
Excerpt from Admiral Tisara Samarasinghe: “We have to recognize the dignity and enormous work done by the soldiers. However, we are lacking in that. We do not want to talk about the existing investigations. If someone has done something wrong, they need to be punished, but, do not disparage the image of the security force.”  
The bone of contention, as it appears, is not the investigations in principle, but the procedure. I regret any misrepresentation caused.  


"I believe the Sri Lankan judiciary is better equipped to decide on the legal strength of the Karannagoda’s case than me or Mr. Seneviratne"

In practice though, these concerns are much more than semantic. They exude a degree of distrust and sense of grievances of the security forces apparatus in the legal process. On the other hand, investigating branches, primarily the CID has claimed that the co-operation from the security forces in on-going investigations is less than ideal. Interestingly,CID Director SSP Shani Abeysekera once alleged in the open court that a former official of the attorney general’s department had been impeding the CID probe into the alleged abductions of 11 youth by a Navy unit.   Sri Lanka’s challenge would be to strengthen the legal process in a way that it would address the immediate concerns raised by the security force members, at the same time, ensuring the equality before the law and the due process. There entails tough trade-offs. When these difficult questions arose, the tendency in the past was to opt to an eyewash or the complete abandonment of investigations. However, Sri Lankan institutions have come a long way since then and are in a position to devise means to address these multitude of grievances, while remain credible.  

Then there was my good friend Malinda Seneviratne (Karannagoda, ‘Rule of Law’ and the Season of Silliness in Geneva, March 7, 2019) who disagreed with my reasoning that Karannagoda’s trial, among other things would uphold the rule of law.    “Karannagoda’s case is a weak initiative in this sense.” “…Karannagoda’s case is all of that (appeasing the Tiger rump and the European states) plus political expedience at home for the simple (and simplistic) reason that he, Karannagoda, was commander during the Rajapaksa years,” he wrote.  
I believe the Sri Lankan judiciary is better equipped to decide on the legal strength of the Karannagoda’s case than me or Mr. Seneviratne. That is not least because, though the Rajapaksa shills had refused to acknowledge, local courts have manifested their integrity in a series of landmark judgements. The rule of law entails also the trust in these apparatus.   
The problem in Sri Lanka is that all its disparate stakeholders are willing to trust the courts only when it delivers in their favour. When it does not, the court suddenly becomes a partisan political machinery.  

This is a ploy exploited by all shades of ethnic and political configurations. Each political party has sought to delegitimize the state apparatus, depicting it as an instrument of the political party in power. Of course, there were good reasons to have a healthy dose of reservation when charlatans reign as chief justices and the Apex court was at the beck and call of the president, the ruling cohort and their stooges.   
However, the Sri Lankan courts have come a long way since those miserable days, in particular, thanks to the 19th Amendment to the Constitution. Mr. Seneviratne ought to acknowledge, and indeed, celebrate this positive internal transformation of the Sri Lankan state.   
Also, if he looks around, Mr. Seneviratne would find a whole bunch of unusual bedfellows who have refused to acknowledge this transformation: The LTTE rump, their acolytes, fringe diaspora and NGO lobby that serve the interests of their foreign donors.   

If he looks a little deeper into the recent history, he could also see this is the trade mark strategy adopted by Tamil nationalism (or exceptionalism) in order to delegitimize the Sri Lankan state from the day one of the independence. And this was a wicked ploy. It produced defeat, sorrow and pain.   
Trust in the state apparatus, especially, when they manifest integrity, is an integral part of a mature democracy. For instance, as much as free and fair elections, conceding the defeat in these elections is integral for the success of an electoral democracy. That many countries, especially in the developing world, have failed to evolve a political culture reflective of these basic ethical requirements, has effectively turned elections into mayhem and riots.   


"The court order did not please the rights activists and lawyers"

Similarly, as much as the independence of the court, the public trust therein, is integral for the rule of law. However, the skewed process of political and social empowerment in South Asia, which took place in the absence of institutional empowerment and grassroots enlightenment created societies and conditions that can easily be exploited by smart con-men.   
Last week, a US based radiocarbon dating service revealed that the bone fragments of the Mannar Mass grave belonged to the period 1400- 1650 AD. That effectively ruled out the military complicity in the grave. However, going by the social media chatter, a good deal of activists seem to be disgruntled to the extent to doubt the authenticity of the report. That reaction is understandable and proof of vested interests associated with these groups. They are Tiger shills whose existence is defined by their hatred to the Sri Lankan state.   When Mr. Seneviratne discredits the legal process simply because he does not like this government, he is , unbeknownst to him, aiding his nemesis.   

Also during the last week, after hearing a FR petition filed by Admiral Karanagoda, the Supreme Court issued an order preventing his arrest.  The court order did not please the rights activists and lawyers. There were attempt to discredit the lawyers who appeared on behalf of the petitioner. Some naysayers went as far as to imply that President Sirisena had intervened to secure the court order. This is the low that Sri Lanka’s chattering classes would stoop to discredit things when it does not do their bid.   
On the other hand, the acolytes of joint opposition, which represent an equally destructive political ideology have made it part of their morning routine to discredit courts- a rather odd fascination for unabashed apologists of the authoritarian former regime which delivered court rulings from the president’s house.   So it is not just the Tiger rump that is discrediting the State. The Rajapaksa shills, Sinhala ultra-nationalists, minorities all do that. The UNP will do the same when it gets back to the opposition. That is the outcome of an unmanaged and unhinged effort at the nation building. 

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