Transitional Justice in Sri Lanka: Lessons So Far and the Long Road Ahead

Photo courtesy Open Democracy

BHAVANI FONSEKA on 01/11/2017

The new year in Sri Lanka commenced with some noise around aspects of transitional justice, largely due to the release of the report by the Consultation Task Force (CTF). The report capturing over 7000 views from across Sri Lanka is the first officially sanctioned process that consulted people on their views on the proposed mechanisms on transitional justice and touches on many other critical areas on reconciliation. Despite being an important initiative, only particular aspects of the report have been discussed in the public domain and reported by most media, with no acknowledgement yet to date from either the President or the Prime Minister. The handover ceremony of the report on 3^rd January in itself speaks volumes. This event initially planned for late 2016 was rescheduled for early 2017 with an indicator that both the President and the Prime Minister would be present to receive the report. Neither made an appearance at the January event. Instead, the report was handed over to former President Chandrika Bandaranaike Kumaratunga in the presence of government ministers, the Opposition Leader and officials.

The CTF report is one of many reports in recent years that examine key issues relevant to transitional justice in Sri Lanka, and the lack of an official response from the leadership can be attributed to a host of issues from competing processes, prioritization, busy schedules, lack of interest/commitment etc. Yes, the CTF report is bulky (three volumes to be precise) and reading it is a daunting task to most. But a commendable task of the CTF is the production of a shorter volume of just over 100pages with an executive summary and recommendations containing summaries in all three languages. For anyone interested in the different aspects and elements involving reconciliation in Sri Lanka and to understand the views of thousands across Sri Lanka, reading the full report is highly recommended. Apart from the rich narrative, the CTF report is yet again a reminder of the many challenges and complexities and the need for immediate action if peace and reconciliation is to stand a chance in Sri Lanka.

Confronting Challenges In the New Year

Some in government and many in media seem to have merely latched on to the CTF recommendation on a hybrid accountability mechanism with the participation of foreign judges. The uproar on a hybrid mechanism is not new. The consensus resolution at the UN Human Rights Council (UNHRC) in October 2015 was historic in that for the first time the government of Sri Lanka recognized past abuses and agreed to take steps within the four pillars of transitional justice: truth, justice, reparations and non-recurrence. These translated into specific commitments including four mechanisms [a special court and special counsel’s office, a truth commission, an Office on Missing Persons (OMP) and Office for Reparations], law reforms, confidence building measures and others. Soon after the adoption of the resolution, many leaders in government distanced themselves from the commitment on the participation of foreign judges. The CTF’s recommendation merely revives this opposition. Those loudly commenting on this single issue seems to have missed the many other findings and recommendations. The CTF goes into detail on a truth telling mechanism, the OMP, reparations, confidence building measures, psychosocial issues and a host of other areas. Those who take the time to read the report will be confronted by a diverse range of issues and the sheer complexity linked to transitional justice in Sri Lanka.

Transitional justice is not new to Sri Lanka. Nor is the issue of internationals participating in domestic processes. The previous government of Mahinda Rajapaksa appointed several state initiatives to learn lessons and investigate past abuses including missing persons. The Udalagama Commission, the Lessons Learnt and Reconciliation Commission (LLRC) and the Paranagama Commission are some of the more well known initiatives, two of which had international involvement. The Advisory Council to the Paranagama Commission, appointed by former President Rajapaksa in 2014 was provided an extension by the Sirisena government. While there are differences between the past examples and what is proposed, it is advisable for those commenting to take a moment to learn of the past exercises and why internationals are necessary for specific tasks if impunity is to be addressed in Sri Lanka.

The transitional justice process in Sri Lanka has been beset with challenges since its inception. There is no coherent strategy to address transitional justice, despite highlighted by several including by the High Commissioner for Human Rights in June 2016 in his oral update to the UNHRC. Similarly, the government has failed to sufficiently communicate and explain what they committed to in 2015 and what is presently in motion. Government’s failure to introduce a comprehensive outreach program around the OMP legislation in August 2016 resulted in many in civil society having to step in and explain what the proposed legislation was meant to achieve. Apart from the many technical issues, a fundamental issue confronting transitional justice is the absence of political commitment and leadership. The inability to proceed with many of the commitments made in 2015 demonstrates not merely a lack of capacity or outreach. It is much more. Political leadership has been and continues to be absent in terms of the transitional justice process. Many have commented on the absence of the President and Prime Minister at the January 3^rd event, but this absence and the inability to give political leadership to an area critical to reconciliation in Sri Lanka is not new. These challenges, and many others, continue to confront the government and if not addressed urgently, may cost Sri Lanka’s unique opportunity to deal with the past.

What Next in 2017?

Despite the noise in the first few days of 2017, the prognosis for transitional justice in Sri Lanka is bleak. Since 2015, very limited demonstrable progress has been made. Delays and inefficiencies have resulted in frustration and suspicion among many. Those more hopeful are weary the full implementation of commitments made in 2015 is unlikely in the near future. But the CTF report and several others are a reminder why we as Sri Lankans must not let this moment pass.

March 2017 will see a reporting back to the 34^th Session of the UNHRC on progress made with the 2015 commitments. It is likely that the weeks leading to the session will see some developments around the commitments. The negotiations around GSP+ will also likely keep the pressure on some areas under consideration. While progress is needed, concerns remain with substance and process. If the OMP process is an indicator, civil society and others must keep the pressure on the need for a transparent and inclusive process as well as ensure proposed legislation and mechanisms address the grievances of victims. Questions will also need to be asked on sequencing, ensuring that the government does not stop at truth and reparations but accountability is kept on the table and that there is no weakening of the commitments made in 2015.

The likely scenario of movement with certain commitments in the first few months of this year should not be taken as a guarantee that the momentum stays beyond March 2017. With limited progress with the commitments so far, it is critical that the UNHRC continues its engagement with Sri Lanka and a comprehensive resolution calls for continued monitoring on the situation and reporting back at a later date. The limited movement so far and the many challenges confronting Sri Lanka is an indicator that continued support is needed beyond March 2017.

Finally, there must be attention beyond the immediate and the symbolic to more long-term reforms targeting broader structural issues. The government organized 8-14^th January as the ‘National Integration and Reconciliation Week’ but such a symbolic gesture must be followed by real action. Action should also not be seen as an exercise at checking boxes or done at the behest of the international community or other actors. 2017 so far has seen some aspects of transitional justice in the news but one hopes that the rest of the year sees movement beyond the rhetoric and empty promises. 2017 should be the year that the government and its leaders considers the views of thousands of Sri Lankans and design a transitional justice process grounded on a comprehensive strategy. This is essential if Sri Lanka is to reckon with its past.