Transitional justice process needs to become more transparent

By Jehan Perera-June 6, 2016, 7:59 pm 

The June session of the UN Human Rights Council is expected to be an important test for the government. The resolution that it co-sponsored in October 2015 stated that the UN High Commissioner would submit an oral update to the Human Rights Council at its thirty-second session (June 2016) and a comprehensive report followed by discussion on the implementation of the present resolution at its thirty-fourth session (March 2017). In recent weeks there have been several announcements by the government to highlight the progress that it has made in implementing the UNHRC resolution.

The most important of these governmental actions is the unveiling of the draft legislation on the Office of Missing Persons. This was one of the four transitional justice mechanisms that Foreign Minister Mangala Samaraweera promised to establish in the run up to the co-sponsored resolution of October 2015. Other actions taken by the government in the past month include the setting up of a witness protection unit under the Ministry of Justice, the decision to re-issue Sri Lankan passports to those who had sought political asylum abroad if they so desired, and the release of the report of the Public Representations Committee on constitutional reforms.

This flurry of announcements shows that the government has not been as inactive as it seemed with regard to addressing the controversial issues of transitional justice. An international watchdog group the Sri Lanka Campaign for Peace and Justice has said that "Of the 25 specific commitments pledged by the government at the Human Rights Council last year, 16 can be classified as ‘not on track’ or as giving cause for concern, compared to only 3 which can be described as ‘on track’. For the 6 remaining commitments it remains too soon to say." They have further stated that "there are worrying signals that it is not doing enough to prepare the ground some of the toughest, yet arguably most important, steps - such as de-militarizing the North, investigating disappearances and prosecuting war crimes."

However, it appears that the government has been secretly baking a pudding, though the world at large is not aware of what the ingredients are. The draft legislation on the Office of Missing Persons reflects a considerable amount of thought and research and can be considered as superior to any previous Sri Lankan legislation on the issue. Even those international human rights watchdog groups like Human Rights Watch have been critical of it on the grounds of process rather than substance. They have pointed out that there has been insufficient public discussion about the legislation and that the victims who are to be the beneficiaries should have been consulted. One of the key problems with regard to the government’s implementation of the UNHRC resolution is that it is being done without transparency. The sudden emergence of the legislation of the Office of Missing Persons was, however, an indication that the government had been doing its homework but without letting the world-at-large know about it.

DELIBERATE STRATEGY

It is likely that a similar behind-the-scenes approach is taking place with regard to the three other mechanisms that the government promised in regard to the UNHRC resolution on which there will be a report back later this month in Geneva. These would be Truth and Reconciliation Commission, the Special Court on accountability and the Office of Reparations. There were news items in the media that government delegations had been visiting countries such as South Africa to study their post-conflict healing and reconciliation processes which is one indication that work is being done on these as well. South Africa, for instance, is the home to the model Truth and Reconciliation Commission that has inspired other countries seeking to strengthen their post-war reconciliation processes.

The government appears to be following a deliberate strategy of non-transparency in dealing with issues of transitional justice at this time. It is aware that this is an issue on which there could be mass mobilization by the opposition that could threaten its stability. The UNHRC came to public prominence in Sri Lanka due to its efforts that began immediately after the end of the war in 2009 to bring the previous government to book on charges of war crimes. This not only provoked furious resistance by the government of the day, but also prejudiced the minds of most Sri Lankans who rejoiced that the war had come to an end. The then government was able to convince most Sri Lankans that the international effort to bring it to book for accountability was actually to punish it for winning the war.

Governmental resistance to the successive resolutions of the UNHRC only ended in 2015 with the coming to power of the new government. Initially, when the new government co-sponsored the October 2015 UNHRC resolution there were protests in Sri Lanka led by members of the opposition who had once led the former government. They described the UNHRC resolution as being driven by the desire of LTTE supporters and sections of the international community for revenge and claimed it was to send the Sri Lankan war heroes to the electric chair, to which former president Mahinda Rajapaksa "volunteered" to go himself to save the war heroes. There was no truth in the claim of the electric chair as the death penalty is not provided for by the International Criminal Court. But this generated agitation within the general population who saw the UNHRC resolution as being primarily about war crimes trials for the soldiers who had fought in the war.

POLITICALLY VIABLE

Nine months later in June 2016 as the government prepares to make its submissions before the UNHRC in Geneva the sense of agitation amongst the general public had diminished significantly. The government’s non-transparent approach has meant that despite the passage of time little is known about what the government is doing or plans to do with regard to the transitional justice process. This has deprived the opposition with the ammunition with which to attack the government and has limited their ability to mobilize the general population on the basis of narrow nationalism. The government’s strategic approach has given it more time to stabilize itself in dealing with the challenge of the opposition. In the meantime the government is continuing to find new evidence to build up its legal cases against members of the former government who are strongmen in the opposition on corruption and criminal charges.

Indications from the community level are that the general population is no longer as suspicious or doubtful about the government’s ability to deal with the issues of transitional justice as they were six months ago. Discussions and seminars at the community level in diverse areas such as Ratnapura, Kurunegala and Matara in the predominantly Sinhalese parts of the country indicate a lack of interest in the UNHRC resolution as compared to six months ago when the opposition campaign against it was going strong. On the other hand, interest continues to be high in the former war-zones of the North and East as discussions I took part in Jaffna, Batticaloa and Ampara in the past fortnight have revealed.

Ironically the downside of the government’s non-transparent approach to the transitional justice process, despite its motivation of ensuring its political viability, is that it has created doubts amongst sections of the international community, as evidenced in the statements issued by Human Rights Watch and the Sri Lanka Campaign for Peace and Justice. It is important that the government should address the concerns of the international community that has been strongly supportive of it after the change of government in January 2015. Sections of them feel that they are being left out and do not know what the government is planning to do.

International goodwill is important not least because significant economic benefits can flow from it. Getting back the GSP Plus tariff concessions from the EU will be critically important for the growth of Sri Lankan exports and for the growth of the Sri Lankan economy. If even a single EU country decides to veto it, the GSP Plus benefits that can come to Sri Lanka may be delayed. Also, the transitional justice process cannot be a non-transparent one in the longer term, for issues of truth and truth commissions are necessarily public ones that the general population will have to be part of. The secret ingredients notwithstanding, the proof the pudding will be in the eating.