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Revisiting Transitional Justice in Sri Lanka: The Rhetoric, Realities & Opportunities

New Sri Lankan President Maithripala Sirisena gestures to supporters after speaking outside of the Buddhist Temple of Tooth in the central town of Kandy on January 11, 2015. Sri Lanka's new government on January 11 accused toppled strongman Mahinda Rajapakse of having tried to stage a coup to cling to power after losing last week's presidential election. AFP PHOTO/ Ishara S. KODIKARA (Photo credit should read Ishara S.KODIKARA/AFP/Getty Images)

Photo by Ishara S.KODIKARA/AFP/Getty Images, via The Dish

2015 witnessed two national elections in Sri Lanka- Presidential and Parliamentary, with a mandate given to President Maithripala Sirisena’s government to usher in much needed reforms. This reform project is likely to include a broad and diverse set of issues including those related to the past and reconciliation, ideally focusing on the four pillars of transitional justice- truth, justice, reparations and guarantees of non-recurrence. There is also talk of establishing what is being tagged as a ‘credible domestic mechanism’, but so far limited progress has been made beyond the rhetoric. Although time and care are needed in the design and deliberations, there is also an urgency in terms of the fundamental issue of the right of victims to truth and justice. It is in this context that one hopes the reform project demonstrates the same commitment, energy and enthusiasm towards transitional justice as is likely to be evident with other issues.

This article is a reminder of the promises made by the present government and its own international obligations when it comes to addressing the past. Many promises were made leading upto both national elections. President Maithripala Sirisena was elected on a platform of good governance and an ambitious 100day plan. More recently, in his policy statement to the 8th Parliament of Sri Lanka, President Sirisena highlighted the many areas that require attention including reconciliation. With limited progress in the first eight months of government, one can only hope that the next few months are more constructive with demonstrable progress made in addressing grievances of victims and affected communities and transitional justice. It is also timely in a context where Sri Lanka will be discussed at the 30th Session of the United Nations Human Rights Council (UNHRC), providing an opportunity to the government to demonstrate its commitment and plans for transitional justice and reconciliation in Sri Lanka.

In this context, it is worth noting some statements made in 2015 alluding to domestic mechanisms: “President Sirisena Assures Domestic Mechanism”- 13 February 2015; “Government keen on initiating a credible domestic inquiry”- 20 February 2015; “We are ready for domestic probe mechanism” – Mangala- 3 March 2015; “Sirisena rejects UN probe, insists on domestic mechanism”- 12 March 2015; “Mangala assures domestic probe before UNHRC sessions”- 8 May 2015; “Domestic mechanism to probe right violations to be finalised in July”- 19 June 2015; “Probe on alleged war crimes: Domestic mechanism being finalized, says Acting FM”- 21 June 2015; “Remarks by Foreign Minister Mangala Samaraweera”- 25 August 2015. Notably, none of the public statements provide details of government plans and what policy shifts are likely to be taken in the area of transitional justice. The vagueness is likely deliberate, especially in a context where discussions on accountability and reconciliation are contested. With such competing narratives and contested histories, there is no easy formula in terms of transitional justice processes and mechanisms. Also the inherent contradictions must be noted such as the criticism of state initiatives but at the same time the overwhelming interest to engage. For example, the Presidential Commission to Investigate into Complaints Regarding Missing Persons has according to its website received over 23,000 complaints, a significant number which  highlights that despite its flaws, many continue to engage with the few state initiatives meant to address the past. Many have also protested and signed on to statements and letters calling for accountability, including the varied calls for domestic, hybrid or international mechanisms. This diversity in opinion should not come as a surprise in a country that has witnessed decades of violence and years of denial. What is important is that the diverse and complex views are given due attention in the design and planning of future processes and mechanisms.

Key Issues for a Domestic Mechanism

While the government is advocating for a domestic mechanism, one must also be cautious in terms of what is possible in the present system and whether such a mechanism is able to deliver on truth, justice and reparations. The previous government of Mahinda Rajapaksa appointed the Lessons Learnt and Reconciliation Commission (LLRC) in 2010 as their answer to a ‘home grown solution’. Although there was much hype, the track record of implementation of the LLRC recommendations has been dismal with reports indicating to only 13% being fully implemented. There are no known official figures indicating to the progress of other past commission recommendations, many of which are not in the public domain. With such a past record, it is paramount, that any new mechanisms introduced must overcome past mistakes and established within a new legal and policy order.

Also important is to unpack statements by the Sirisena government on what is meant by a ‘credible domestic mechanism’. What elements would such a mechanism have? Would it address issues of truth, justice, reparations and reform? Would it be purely domestic or have an international dimension? It is to be seen what happens with the new government, but there is no discounting the grievances of thousands of citizens across Sri Lanka whose call for truth, justice and reparations must be given attention and is critical for reconciliation in Sri Lanka. In this regard, there must be attention on key issues and elements essential for a mechanism/s, some of which are listed below.

Firstly, it is fundamental that future transitional justice processes acknowledge the centrality of victims. Principle 10 of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law provide that victims should be ‘treated with humanity, dignity and respect, and appropriate measures taken to ensure their safety, physical and psychological well-being and privacy, as well as those of their families…’. It also recognizes that victims have a right to an effective investigation and remedy, whether committed by state or private individuals and provides for remedies including finding the truth, acknowledgement, apology, compensation, rehabilitation or others. An effective transitional justice process that leads to durable peace is one which is able to respond to the needs and grievances of victims, where victims and their representatives are able to engage at the planning and implementation stages of any transitional justice mechanism. Also critical is to acknowledge the plurality of victims’ voices and experiences.

Secondly, it is extremely important to recognize and acknowledge the past, regardless of the incident, victims and perpetrator. This is the first basic step when attempting to address the past and identifying and exploring ways forward. Also important is that any process is not closed off and that wide consultations take place prior to the unveiling of plans for future mechanism/s. These consultations should include victims, witnesses, affected communities, civil society, academics, religious groups, professionals and others and a way of obtaining ideas and suggestions for any future process and elements that should be contained in any mechanism.

With discussions ranging from truth telling to trials and from purely domestic to hybrid to international, there must be attention and discussions on the elements involving any truth and justice mechanism. It is also important in this regard to also think through issues of investigations and prosecutions and whether Sri Lanka’s present framework provides for independent investigations and prosecutions into serious violations of human rights and international humanitarian law (IHL). As commented in a previous post, a third point and a timely one, is to introduce legal reform. This should include legal reform to establish an office of an independent prosecutor with a mandate to investigate and prosecute gross human rights violations and also news legislation to provide for a special court and international crimes in Sri Lanka. In addition, legal reform is key to a truth telling process. Previous attempts have been via the Commission of Inquiry Act, a mechanism that has been critiqued for its lack of independence and shortcomings. A new mechanism should be introduced within a new framework that provides for independence, investigative powers, effective protection and other key areas that are not adequately addressed in the present system. In addition, legislation is required to criminalize disappearances and for the establishment of an independent office for the missing with powers to examine the status of thousands of persons listed as missing.

Fourthly, several practical issues should be addressed when considering new mechanisms. Although Sri Lanka now has a Victim and Witness Protection law which was enacted in March 2015, it is yet to be seen whether actual protection is possible within the framework. Any mechanisms focused on truth and justice must ensure they have their own victim and witness protection teams who are able to provide much needed support and protection. Another area that has not received sufficient attention previously but critical is psychosocial care. Support in this area must be before, during and after engaging with any truth and justice process, with attention on specific needs of the individuals and their families. In addition, any truth, justice and reparations program must also address other practical issues such as having professional translations in all three languages. Both the LLRC and the present Commission on Missing Persons have had problems with translations, an area that is fundamental and should be addressed prior to any sitting. There should also be attention on the nature of sittings, with a choice of either a public or private setting.

Also important when exploring transitional justice is the area of reparations. These include restitution, compensation, rehabilitation and satisfaction. Soon after Parliamentary elections, media attention was on the return of lands to original owners in Sampur, Trincomalee. While this is welcome and an essential aspect of reparations, more is required in terms of durable solutions. Furthermore, there needs to be a comprehensive reparations policy that addresses restitution across Sri Lanka. Another area that requires attention is documentation and ensuring lost and destroyed documents are replaced. Also important is to examine the dynamics arising from death certificates. Many families continuing to search for the disappeared refuse to accept a death certificate in the firm belief their loved ones are still alive. This has created hardships for single headed households who are unable to accept assistance for livelihoods and property if the recognized documentation is not available. As a result of the complexities around this issue, the government should explore introducing a ‘Certificate of Absence’ as done in countries such as Argentina, Nepal and Peru. Memorialization is also another aspect that requires attention, a process by which the state recognizes and acknowledges victims and the multiple narratives in Sri Lanka. Finally, within the fourth pillar of transitional justice and extremely important is to ensure steps are taken to prevent future violence. In this regard much needed reform must take place including institutional and security sector reforms.

Keeping Promises

The coming weeks and months will likely witness a hive of activities within the reform project. The excitement and new developments should not divert attention from fundamental questions faced by a significant population in Sri Lanka. There are no short cuts when addressing the past and issues of transitional justice. It is therefore essential to revisit these issues now, with the long-term goal of sustainable peace and reconciliation in Sri Lanka. The onus is now with President Sirisena’s government to demonstrate its commitment and willingness to address issues that for too long have been forgotten and sidelined. This should not be merely for political millage or for the consumption of the international community. While there is likely to be more promises around the UNHRC session, there must be pressure on the government to follow through and deliver. Steps must be taken in the areas highlighted in this article with priority given to the rights and needs of victims. Inability or unwillingness to do so will confirm the legacy of empty promises and another opportunity will be lost in achieving reconciliation in Sri Lanka.