Illustration: Akila Weerasinghe / Himal Southasian
Recent events have brought to the fore, yet again, Sri Lanka's legacy of past abuses, its challenges with accountability and its entrenched culture of impunity. Three cases in particular demonstrate the many impediments to accountability in Sri Lanka: impunity for a former rebel turned politician, the delays in justice in the case of a former senior navy official, and the presidential pardon of a convicted murderer. In the first two cases, like in many others, there appears to have been sufficient information to proceed to the next steps in the criminal justice process – but the cases did not advance. In the third case, even though justice was secured, it was later reversed.
In response to calls for truth and justice following cyclical post-1948 violence, Sri Lankan governments have tended to appoint commissions or committees. Some initiatives, such as the Lessons Learnt and Reconciliation Commission (LLRC) and the Paranagama Commission, both appointed by former president and current Prime Minister Mahinda Rajapaksa, did capture some dimensions of the violence and suffering faced by citizens across Sri Lanka. The latter commission received over 20,000 complaints of enforced disappearance. This number, considered conservative by activists, highlights the scale of disappearances in the country.
Families of victims of enforced disappearances from as far back as the 1980s continue to search for answers, and in the North of Sri Lanka, families have protested for over 1000 days with no answers yet.
Although such initiatives may recognise the need for redress, few perpetrators have been held to account. Though the reasons differ from case to case, common causes for limited progress within the criminal justice system in Sri Lanka include delays with investigations, evidence tampering, a fear of reprisal among victims and witnesses and, in general, a lack of political will to proceed with cases deemed politically sensitive.
Since the findings of many such commissions are often not made available to the public, victims remain in the dark about the fate of their loved ones. So while some state initiatives have highlighted aspects of Sri Lanka's past, many victims continue to search for answers and justice. The years and in some cases decades of delays have meant some victims passing away without discovering the whereabouts of their loved ones. Families of victims of enforced disappearances from as far back as the 1980s continue to search for answers, and in the North of Sri Lanka, families have protested for over 1000 days with no answers yet. The death of individuals who courageously searched for their missing family members is an indictment of a system that has failed victims in the most human of quests – to learn what happened to those they love. Their persistent activism, however, has kept the need for accountability alive.
Case one: former rebel turned politician
Vinayagamoorthy Muralitharan alias Karuna Amman rekindled interest in Sri Lanka's violent past, and the impunity enjoyed by some, when he claimed he was "more dangerous than the coronavirus". On 19 June 2020 Karuna Amman told a gathering that as a member of the Liberation Tigers of Tamil Eelam (LTTE) he had killed between 2000 to 3000 Sri Lankan soldiers, more lives than those claimed by COVID-19 in Sri Lanka, in just one night at Elephant Pass. Karuna Amman may have wanted the statement to showcase his military prowess prior to the 5 August 2020 Parliamentary elections in which he contested, but it also captures the impunity he has enjoyed over the years under successive governments.
Violations linked to Karuna Amman while he was with the LTTE and subsequently the Tamil Makkal Viduthalai Pulikal (TMVP) are widely known. Numerous investigations by Sri Lanka and the United Nations, and reports from civil society, have documented Karuna Amman's role in extra judicial killings, forced recruitment, abductions, torture and other egregious rights violations – including the killing of hundreds of surrendered police personnel and several violations that target children.
UN Security Council Resolution 1612 prompted the UN's secretary general to provide detailed accounts of violations against children in Sri Lanka. In these reports, Karuna Amman is mentioned multiple times in association with the forced recruitment and abduction of children and other abuses. The state also appointed commissions and committees – both during and after the war – to investigate violations against children. For example, a special committee was appointed by the Sri Lankan government to inquire into the abduction and recruitment of children for use in armed conflict in 2007. It was headed by the then secretary to the Ministry of Justice and Law Reform and consisted of state officials, the armed forces and the police. The findings of the special committee are not publicly available but the subsequently appointed LLRC, which explored in detail human rights abuses like enforced disappearances and child abductions, also documents the role of Karuna Amman in violations. Despite these grave findings, Karuna Amman has not been held accountable for such crimes.
Karuna Amman rekindled interest in Sri Lanka's violent past, and the impunity enjoyed by some, when he claimed he was "more dangerous than the coronavirus".
Some might link the inability or unwillingness to proceed with justice to politics – Karuna Amman has held positions in a Rajapaksa-led government and in a political party linked to that government. Others might attribute the lack of accountability to Karuna Amman's defection from the LTTE in 2004 and his role in the defeat of the LTTE in 2009.
Several actors condemned Karuna Amman's June statement. The Sri Lanka Podujana Peramuna (SLPP), President Gotabaya Rajapaksa's political party, distanced itself from his statement, and others attempted to use it for their own political grandstanding. These reactions were more likely to be triggered by electoral considerations than any genuine attempt at seeking accountability. Such cynicism is based on the fact that Karuna Amman has, like so many others, escaped accountability despite the existence of evidence.
In these reports, Karuna Amman is mentioned multiple times in association with the forced recruitment and abduction of children and other abuses.
But will the renewed interest in recent weeks finally lead to a reckoning where Karuna Amman and others are held accountable for past crimes? Despite the present outcry, few expect justice to take its course because accountability remains hostage to select political interests.
Case two: senior navy official
The families of victims in a 2008 case involving the abduction of 11 youth received another blow when the trial, which was set to commence, was further delayed. In this particular case, 11 Tamil youth were kidnapped for ransom by a group of men in the Sri Lankan Navy. Information now in the public domain thanks to court proceedings reveal a ransom racket involving senior officials. The youth were first reportedly held in a place in Colombo and subsequently moved to the Naval Command in Trincomalee. Investigations resulted in charges being levied against several before the High Court Trial at Bar. The case has seen multiple delays including when one of the accused, admiral of the fleet, Wasantha Karannagoda, obtained an order from the Supreme Court in March 2019 to prevent his arrest. In June 2020, Karannagoda was able to obtain an interim order from the Court of Appeal to further delay proceedings in the High Court.
In this particular case, 11 Tamil youth were kidnapped for ransom by a group of men in the Sri Lankan Navy.
Considering the obstacles to the pursuit of justice, it is remarkable that information about this racket is in the public domain at all. The case, which highlights nefarious activities during and immediately after the war, is testament to the many challenges faced by victims in obtaining justice and the level of impunity politically-connected perpetrators enjoy in Sri Lanka.
The case's progress is largely due to courageous victims and a team of tenacious investigators. For over a decade, victims pursued every avenue to uncover the whereabouts of their missing loved ones, persisting despite numerous setbacks and disappointments. Many who pushed for accountability are now facing reprisals: this includes the demotion, transfer and arrest of investigators, and the intimidation of lawyers who have appeared for the victims. Such developments send a chilling message to others about what awaits those who ask uncomfortable questions or dare to push for justice.
The following report of Supreme Court events, published on 10 March 2019 in the Sunday Observer newspaper, highlights the difficulties faced by Sarojini Naganathan, one of the mothers whose son disappeared, and others in pursuing justice:
The excerpt reveals a justice system that continues to fail victims. In this particular case, although the Colombo High Court issued summons, Karannagoda has successfully evaded both court appearances and arrest. According to media reports, summons were issued in January 2020 but the accused failed to make an appearance. Miraculously, the accused did turn up a few days later at the state Independence Day celebrations. Media images showed him seated near the Attorney General and other officials.
The blatant disregard for the rule of law is not new. Developments in this case highlight the glaring inequalities faced by those citizens who seek nothing more than truth and justice for their loved ones.
Case three: pardon of a convicted murderer
Even the few cases in which justice was within grasp have faced unexpected twists, surprises and setbacks. The massacre of civilians in 2000 in Mirusuvil, in the Jaffna District, is an example of one such case.
On December 19 2000, nine individuals who were displaced from their lands in Mirusuvil returned to their properties. This included a five year old child and a 13 year old child who accompanied their father. The group's sole survivor gave evidence of the killings which followed. His evidence resulted in the arrest of former Army Staff Sergeant Sunil Ratnayake and others in the army. In November 2002 the chief justice appointed a High Court Trial at Bar for the case. Despite delays, and after nearly 15 years, the trial culminated in a conviction in June 2015 and was affirmed by the Supreme Court of Sri Lanka in April 2019.
Many who pushed for accountability are now facing reprisals: this includes the demotion, transfer and arrest of investigators, and the intimidation of lawyers who have appeared for the victims.
This rare glimpse of justice was soon overturned when a presidential pardon was granted to the convict amidst the COVID-19 pandemic in March 2020. Some condemned the pardon but others, including a few Buddhist monks and Sinhala nationalist groups who had called for the pardon, welcomed it as the release of a war hero.
Successive presidents have used presidential pardons with its recent employment raising particular attention. In 2019, the then president pardoned the convicted murderer of Yvonne Jonsson. Also in 2019, a Buddhist priest convicted for contempt of court was pardoned. Both these and the presidential pardon to Ratnayake are presently before the Supreme Court of Sri Lanka.
The Mirusuvil massacre case demonstrates the fragility of a system that is vulnerable to political meddling and rhetoric and requires urgent structural reforms. These reforms must occur at both the operational and structural levels. They must include the examination of how complaints are processed, the protection of the integrity of investigations and prosecutions, as well as victim and witness protection. These are merely a few examples but any genuine effort to address impunity will require far-reaching reforms.
Numerous promises by successive governments pledging to initiate reforms on accountability and transparency have not materialised. For example, the Sirisena government, elected on a platform of good governance, promised ambitious reforms in 2015 including by cosponsoring UN Human Rights Council Resolution 30/1, which provided a framework for accountability and reconciliation in Sri Lanka. A key commitment linked to accountability was the creation of a judicial mechanism with a special counsel – but this did not materialise. Considering the setbacks faced with ongoing cases, it is unlikely that the key reforms necessary to address entrenched impunity in Sri Lanka will be implemented any time in the immediate future.
The continued need for reforms
On 5 August 2020, Sri Lankans went to the polls to elect members of Parliament – the election consolidated the power of President Gotabaya. A parliamentary majority for the Rajapaksa government is likely to usher in sweeping and regressive constitutional and legislative reforms and see the roll back of the limited democratic reforms achieved since 2015, including checks on executive power, presidential term limits and the Right to Information Act. Such rollbacks could weaken independent institutions and erode the rule of law, perhaps at a faster rate than that witnessed during Mahinda Rajapaksa's last term in government between 2010 and 2015.
Despite delays, and after nearly 15 years, the trial culminated in a conviction in June 2015 and was affirmed by the Supreme Court of Sri Lanka in April 2019.
Such change will also come at a time of heightened militarisation – when victims who have courageously kept the spotlight on violations and impunity are experiencing renewed levels of scrutiny and intimidation. These shifts in power occur in a context where human-rights defenders and the media are being targeted and vilified and lawyers threatened, arrested and detained, with due process safeguards ignored.
If the past is any indication of the future, those who have fought so hard for justice will continue to fight, despite the setbacks and shrinking space for justice. The struggle undoubtedly comes at a price: many victims are often betrayed by the very systems they are expected to trust, facing numerous indignities along the way. One can only hope that despite mounting setbacks, the courage, resilience and persistence seen over the decades will keep the quest for justice alive.