FROM NANDIKADAL TO HANDI-KADAAL

Sunday, 29 October 2017

If there was one thing that characterized the 10-year rule of former President
Mahinda Rajapaksa, that would be the unprecedented level of violence unleashed
upon the regimes political opponents.
Infamous white van abductions were prevalent in the capital city of Colombo,
while strong critiques of the government often came under attacks from death
squads that operated with the blessings of the top echelons of the government.
Former Sunday Leader Editor Lasantha Wickrematunga and journalist Prageeth
Ekneligoda exposed the corruption of the Rajapaksa government at the expense
of their own lives, while senior journalists Upali Tennakoon, Poddala Jayantha and
many others had to flee the country after brutal assaults.
 The law enforcement bodies had little or no
regard for human lives as the military and the Police freely opened fire on
protesters during protests at Rathupaswala, Katunayake and Chilaw.

There was no action on the perpetrators who killed

unarmed protesters and in fact, some of them got promotions with diplomatic
postings. It was a clear indication that the top-rung members of the Rajapaksa
administration had no regrets about the precious human lives lost on the blood-
soaked streets of Rathupaswala, Katunayake and Chilaw.

This callous indifference and disregard for human rights and democracy was one
of the key reasons behind the downfall of former President Rajapaksa on January
8, 2015.

Despite his military victory over the LTTE, people had no qualms about sending
the former President home as they wanted a government that was committed to
ensure democracy, freedom and human rights in the country.

For any political party, the time it spends in the Opposition is a time of reflection.
It gives the party some breathing space to reflect, re-adjust and re-strategize.
Many believed the Rajapaksa group too would use the January 8 defeat as an
opportunity for reflection and self-criticism.

Kamal Gunaratne

But, it is now abundantly clear that the Rajapaksa group has hardly learnt
anything from the election defeat. It was manifested again when former Major
General Kamal Gunaratne, who led a military battalion during the final phase of
war, addressed a gathering in Gampaha, a few days ago.

Kamal Gunaratne was the Commander of the 53rd Brigade established by former
Army Commander Sarath Fonseka during the final phase of the war. It was
Fonseka who appointed Gunaratne as a Brigade Commander before the final
battle overlooking many other senior Army officers.

But, the same Kamal Gunaratne turned against Fonseka when the latter contested
the Presidential Election in 2010. Gunaratne and several other senior Army
officers appeared on State television channels to belittle Fonsekas contribution in
the final phase of the war against the LTTE, soon before the Presidential Election
2010 in which the former Army Commander was the Common Candidate of the
Opposition. A day after Gunaratne retired from the military service in 2016, he
launched a book Road to Nandikadal, which became an overnight sensation
among the hardcore Sinhala-Buddhist bloc in the South.

The book was launched at the Ananda College auditorium, in Colombo, under the
auspices of former President Mahinda Rajapaksa.

Former Defence Secretary Gotabaya Rajapaksa was also present at the event and
copies of the book were presented to the Rajapaksa brothers by the author. It
was a clear indication that Gunaratnes affiliations lied with the Rajapaksas even
before he became a speaker of the Viyathmaga campaign.
It is in this context that the current controversy surrounding the retired Army
General has to be analyzed.

Viyathmaga

Gunaratne, addressing a Viyathmaga event that was aimed at promoting former

Defence Secretary Gotabaya Rajapaksa, indicated that all who supported the new
constitution should be killed.

In his speech, he first explained how the proposed new Constitution was
traitorous and unpatriotic. Then he went on to claim that all traitors should
be killed, in the same manner the JVP killed its opponents during the 88-89
insurrection.

What he implied was that the supporters of the new constitution, whom he called
traitors, should not be given a decent funeral.

Ironically, the event where Gunaratne voiced his opinion was called Viyathmaga
(The path of intellectuals). The retired Army officers remarks were testimony to
the calibre of intellectuals who have aligned themselves with the former Defence
Secretary.

It would be wrong to assume that Gunaratnes remarks came on the spur of the
moment. It was, needless to say, a glimpse of the ideology espoused by Gotabaya
Rajapaksa who is aspiring to be a presidential candidate in 2020. It also resembled
Gotabaya Rajapaksas conduct when he was the all-powerful Defence Secretary of
the Rajapaksa administration.

Criticism

Gunaratnes controversial statement came under criticism from various quarters

in the political circles. Even some senior members of the Rajapaksa group
described Gunaratnes remarks as insane and senseless saying it would
irreparably damage the political campaign of the former President.
They said, while former Economic Development Minister Basil Rajapaksa was
trying hard to draw the support of ethnic minorities, the allies of Gotabaya
Rajapaksa openly talk about killing political opponents.

They said, Gunaratnes statement was a serious blow to the former Presidents
political campaign against a backdrop where Basil had gone an extra mile to admit
the alleged crimes committed by members of the security forces, during the
Rajapaksa presidency.

Among the politicians who strongly criticized the former Army officers
irresponsible statement was Finance and Media minister Mangala Samaraweera
who said, the defeated political elements were misusing the democratic space
secured by the current government.

Mangalas statement

The Minister, in a strongly worded statement, accused them of acting as pawns of

former Defence Secretary Gotabaya Rajapaksa.

He reiterated that the Viyathmaga movement was formed to cater to the future
political aspiration of Gotabaya Rajapaksa. The Minister reminded that the unity
government received a clear mandate in 2015 to introduce a new Constitution to
usher in permanent peace, reconciliation and development.
Also citing Gunaratne and Retired Rear Admiral Sarath Weerasekaras recent
comments that all who support the new Constitution must be killed and the most
recent comment by Weerawansa that Parliament should be bombed, the Minister
pointed out, these horrific comments were made at a time the government is
working towards delivering this undertaking of formulating a new Constitution.

We need not reply to filthy statements of racists, yet, I should voice the concerns
of democracy-loving people who stand against the barking of those blood thirsty
and power hungry political elements. If they can make such gory comments on a
civil platform when they are out of power, people with some sense could imagine
the crimes they had committed when they held ruling power. These threats also
put the lives of democracy-loving and wise people at risk, Minister Samaraweera
stated.

The Minister went on to say, Kamal Gunaratne in his recent book had betrayed
the Sri Lanka Army by illustrating the fatal attacks on the Northern people and
instances of looting their property and thus preparing the ground for war crimes
allegations. He reminded that investigations are still on against Gunaratne over
the mysterious death of a Sri Lankan, which occurred when Gunaratne was in the
diplomatic service.

Handi-kadal

Samaraweera referred to Gunaratnes book Road to Nandikadal as Handi-kadal

(breaker of towns) as it explains how some enraged soldiers destroyed villages
and towns occupied by Tamil civilians during the period of war.

Samaraweera, commenting on Weerawansas statement on bombing Parliament,

said, Weerawansa had displayed his fanatic political hooliganism following the
same footsteps of his brother-in-law who bombed Parliament in the 1988-89 era.

The Minister, recalling the infamous white van culture in the Rajapaksa era, noted
that the criminal mindset of those in the Rajapaksa camp remains unchanged with
or without power.

Japanese judge and a highly respected figure in the international legal fraternity,
Motoo Noguchi, was in Sri Lanka last week to share his insight and views on the
proposed accountability and reconciliation mechanism in Sri Lanka.

Noguchi graduated from the University of Tokyo, Faculty of Law (1983) and Legal
Research and Training Institute of the Supreme Court (1985).

He was a Judge in the Supreme Court Chamber of Japan from its inception until
July 2012.

He has been a prosecutor since 1985, accumulating considerable experience in

criminal investigations and trials. He has also been engaged in judicial reforms in
transitional countries since 1996.
From 2000 to 2004, he was seconded to the Asian Development Bank (ADB) as a
counsel. In 2004, he has been a professor at UNAFEI, while also serving as a senior
attorney at the Ministry of Foreign Affairs advising on international criminal
justice.

He was a visiting scholar at the University of Washington, School of Law (1992-

93), visiting professional at the International Criminal Court (2005), and visiting
fellow at Yale Law School, Schell Center for International Human Rights and
MacMillan Center for International and Area Studies at Yale (2006-07). He is also a
visiting professor at the University of Tokyo.

First involvement

Noguchi is no stranger to the reconciliation and accountability process in Sri Lanka

as he has closely associated with Sri Lanka since 2014.

He was appointed as an expert to the Advisory Council of the Presidential

Commission to Investigate Complaints Regarding Missing Persons in Sri Lanka,
formed by former President Mahinda Rajapaksa.

His appointment came after Japanese Prime Minister Shinzo Abe expressed
willingness to play an active part in Sri Lankas reconciliation process when the
latter met former President Rajapaksa, in September, 2014.

Sir Desmond de Silva (UK) (Chairman), Sir Geoffrey Nice (UK), Prof. David Crane
(USA), Prof. Avdash Kaushal (India) and Ahmer Bilal Soofi (Pakistan) were the
other members of the panel.

It was the first time, that international experts got involved in Sri Lankas
accountability process and this, quite ironically, happened under the tenure of
former President Rajapaksa.

Benefitting all communities

During his latest visit to Sri Lanka, Noguchi held discussions with a number of
stakeholders involved in the reconciliation process, including the countrys
military and members of the state media machinery.

The Japanese judge explained to them why Sri Lanka needs a credible
accountability mechanism, at this juncture.

What is important to understand is that the accountability mechanism is not

targeted at any particular community, Noguchi said, allaying fears of some
sections of the majority Sinhalese community.

It will also not target the Sri Lankan military, as an entity. Also, there will be no
discrimination when it comes to serious crimes. Some sections of the Sri Lankan
society do not seem to have a clear understanding of the matter.

The accountability mechanism, the Japanese judge said, would benefit all
communities and all sections of society.

Some fear it will make a negative impact on the Army. But, in my view, it will give
a fair opportunity to the Army to present the real picture and dispel any
ungrounded criticism, he explained, adding that all suspects would be given an
opportunity to present their defence.
But, I must reiterate that the prosecution will be based on individual criminal
responsibility. No entity, as a unit, will face prosecution.

However, the Japanese expert said, there were complex issues that needed to be
cleared.
For instance, we need to ensure that the accountability mechanism is not limited
to the members of the Sri Lankan security forces. But, the LTTE, on the other
hand, is now defunct and almost all its leaders have been killed in the battle. So,
who will take responsibility for the crimes committed by the LTTE? We need to
find answers to these questions he added.

We need to find a way out of this deadlock.

One way out is expanding the scope of the mechanism to investigate into
incidents that took place in the 1980s as well -way before the final stages of war,
based on the availability of evidence, he said.
The Japanese expert also pointed out that the message coming from political
authorities with regard to transitional justice should be clear and cohesive.

However, it is also important to understand that such an expansion may blur the
mandate of the commission and delay the final outcome.

International stakeholders, such as the United Nations Human Rights Council,

have constantly pushed that Sri Lankas accountability process should be time-
bound. In response, Sri Lankas leaders have stated they prefer to make progress
slow and steady.

It is in this context that expanding the mandate of the mechanism to investigate

into the incidents in the 1980s could be a double-edged sword.

Grieff

Pablo de Greiff, Special Rapporteur on the promotion of truth, justice, reparation

and guarantees of non-recurrence, who was in Colombo last week, also shared
interesting views on Sri Lankas accountability process, during his interactions
with the media.

Some of his remarks were fully in line with the views expressed by the Japanese
legal expert.
Grieff, concluding his 14-day visit to the country, said Transitional justice
processes did not constitute a witch-hunt.

He made this remark while alluding to often-heard political rhetoric on protecting

war heroes.
In any transitional justice process, it is important to draw the line between war
heroes and criminals.
A criminal can never be a war hero and a war hero should never be a criminal.
What remains unclear is whether the Sri Lankan politicians attempting to appease
the majority Sinhalese community with the war hero rhetoric, are aware of this
universal truth.

This seems to misrepresent the target of transitional justice accountability

measures by suggesting it is a generally anti-security agenda, and also by
forgetting that no one who has committed violations of human rights law or of
the laws of war deserves to be called a hero, said the UN official.

Stating that the criminal case filed against former Army Commander Jagath
Jayasuriya was only the tip of the iceberg, Greiff added Sri Lanka continued to
deprive itself of the benefits of transitional justice, and had regrettably
underutilised the support offered by the UN.

Citing the experience in 1971 and 1988-89, the UN official said, it was not just the
minorities, but also the majority community that stands to gain from a credible
transitional justice mechanism.
Greiff said so much had to be done, adding that Sri Lankas steps towards post-
war accountability had been a work in progress.

He said, the delays bear some risks of further politicisation of the discussion of
the increasing difficulties in finding consensus around this topic.

Delays open up opportunities for the topic to become entangled in partisan

politics, as seems to be happening in Sri Lanka. I take the opportunity to reiterate
a point that cannot be overstated: transitional justice deals with questions of
basic fundamental rights. Hence, it is not to be reduced to a matter of partisan
politics, he added.

The key message the senior UN official sent to the Sri Lankan political sphere was
the need to depoliticize the accountability process and let the law take its course.

Posted by Thavam