Can Sri Lanka's Civil Society Be Rebuilt?
With the rebel Tamil Tiger leader Vellupillai Prabhakaran finally dead and the military declaring total victory after 26 years of war, Sri Lanka's traumatized citizens are hoping that their society can finally be regenerated. President Mahinda Rajapaksa, in a Tuesday speech in Parliament, promised the formerly Tiger-controlled areas would be reconstructed and that the rights of Tamils would be respected and protected.
Probably 100,000 of Sri Lanka's 20 million people have been killed since the war began in 1983, a pace that picked up considerably in the past few weeks as the army closed in on the Tiger rebels, blasting civilian and refugee areas indiscriminately with artillery. Huge numbers of people were driven from their homes. Healing this nation in one of the world's bitterest civil wars seems almost impossible, particularly because, thanks to decades of emergency rule in which the military and the police force have learned to run rampant with breathtaking impunity, the rule of law is a broken thing, for Tamils and Sinhalese alike.
The fact is that the government has used the war to brutalize citizens far from the war zone well beyond any reasonable limit. As many recent assaults and assassinations have shown, the simple act of just taking someone high profile to court here, let alone getting involved in the internecine civil conflict, tends to be a deadly gamble. Last September, for instance, businessman Sugath Nishanta Fernando was shot dead by masked men on a motorbike as he sat next to his 12-year-old son in the family lorry. His death capped a five-year attempt to take various police officers to court for abuses that started with assault and extortion, and ran through the criminal spectrum, from harassment, bribery and fabricated charges, to attempted murder.
The family had often asked for protection, including the time over 30 officers descended on the family home, beat its four members (two of them children) and dragged three into jail. Fernando's wife Sandamali notes that they were eventually given a police guard -- at her husband's funeral.
Fernando's wife and teenage daughter have taken fierce refuge in the legal case, and as a result they still run the risk of being killed. The family is being supported and hidden by a network of small NGOs and the children, at the time of the interview, had been out of school for months.
"We don't have an income so we are relying on help from these organizations," explains Kalpani Fernando, 17. "We are worried about being killed, but we are also concerned that nothing has been done to find my father's killers. If we have proper laws to protect witnesses it would be alright. Then, if something happens to me the DIG (Deputy Inspector General) should be responsible. Then the situation could change."
Sugath Fernando joins a number of people assassinated or ‘disappeared' for their attempts to root out corruption. In 2004, 39-year-old Gerald Perrera, taking a groundbreaking case against police for torture and illegal arrest, was shot days before his final testimony; in January the prominent anti-establishment newspaper editor Lasantha Wickramatunge was also shot, and as he predicted in a letter released posthumously (see Asia Sentinel, xmmx) , no prosecutions have been made; Stephen Sunthararaj, who works at the Centre for Human Rights Development in Colombo, was abducted by men in Special Task Force uniforms on May 7 and has not been heard from since.
Nor does it take a full scale assault on the powers-that-be to put a civilian at risk. "In Sri Lanka if you see a person get run over in the street and the culprit gets away, you don't get involved," says Father Terence Fernando (no relation), a Sinhalese priest from the south. "If the person in the car was a VIP you could be harassed, or your life could be in danger." In short, it is safer to look the other way.
For the first time, in June 2008 a witness protection bill was proposed in parliament for the first time. According to Sri Lanka's disaster management and human rights minister Mahinda Samarasinghe, the Assistance and Protection to Victims and Witnesses of Crime Bill would finally fulfill some of its duties under the international human rights instruments it has ratified.
If used effectively, legal and human rights group believe such a program could make big changes in a country known for its corruption, its use of torture in custody and the harassment by police of those who file against them for abuse.
"No justice system can function when complainants and witnesses do not want to pursue their complaints," says Basil Fernando, a Sri Lankan human rights lawyer and director of the Asian Human Rights Commission (AHRC) in Hong Kong. "Torture victims and their supporters are constantly told by police ‘do no strike your head against a stone. No one can do us any harm'. It's a catch-me-if-you-can mentality."
But despite the bill's arrival in parliament last June with just minor changes recommended by the Supreme Court, and despite much being made of it at Sri Lanka's report for the UN's Universal Periodic Review last summer, there has been little more heard on the issue officially. The country was removed from the UN Human Rights Council in 2008 and many in the local human rights community have labeled the bill a weak attempt to ease international pressure. One journalist for a local newspaper, in hiding himself at the time, was convinced that it wouldn't be passed while civil war was in play. "In the name of war the government can take anyone into custody right now and do anything to them; torture them, detain them, and this kind of bill would just get in their way."" he says of the violent three-decade conflict waged between Tamil separatists and the government.
Now that war has been declared over it will be interesting to see if the government honors the bill. Basil Fernando is doubtful. "I think there's even less likelihood of it passing now because people are demanding enquiries into the actions of the military over the last few months," he says. "Its professionalism is at stake, and the government's survival depends on it. It will not want to make enquiries easier. "
Even should the bill be passed, human rights groups wonder if it can work on a practical level; echoing the skepticism that most victims already feel for the authorities. Father Nandana Manatunga, who runs one of the country's only witness refuges, the Kandy Human Rights Office, believes that it would have to be an independent institution: "We can't trust any of these forces, especially when it comes to police torture cases. It's absurd to ask protection from the perpetrators – the police here act as one group."
Lalith Rajapakse and his grandfather were given a form of police protection after the teenager was tortured into a coma in a jailhouse in 2002 and chose to press charges. The policemen just ate, slept and drank, he remembers, now a gangly 24-year-old. "They would follow me to the toilet… but when I would go out of the house, they would stay behind! In the end we couldn't afford to feed them, so we asked them to leave". Lalith spent the eight years of his trial in hiding with Father Nandana's program, and while visiting his home last year towards the end of the case, he saw men with guns creeping around his house at night. In a recent court case officers were forced to admit that it was them. At the Kandy Human Rights Office there are many similar tales being shared.
The debate on the responsibility for protection is a significant turning point in this small island society, but there are many issues to address before victims will trust a country-run system with their safety. Still, as more Sri Lankans begin to understand their rights, more are choosing to speak out and brave the legal path. Thanks to those supporting them from the wings they stand a chance of holding out until the verdict.
In the midst of her ordeal 17-year-old Kalpani Fernando, Sugath's daughter, has decided to become a human rights lawyer and she holds clear ideas on the society she wants to help build: "First I want to find out who did this to my father, then I want to show them that I can live in front of them," she says. "Only civil society can change the system."
Jo Baker is a Hong Kong based journalist and programme coordinator for the Asian Human Rights Commission.