‘Transitional justice’ Which Brings No Relief to Victims Insults the Rule of Law

by Kishali Pinto-Jayawardene, The Sunday Times, Colombo, March 17, 2024

As familiar wrangling in Geneva takes place over the review of Sri Lanka by the United Nations Human Rights Council, there is an eminently sound argument to be made, (ad nauseam until the point is acknowledged) that the country’s many ineffective bodies on transitional justice established to meet ‘international scrutiny’ actually harm the Rule of Law.

The State is arguing a bad brief

That harm occurs through repetitive mandates that overlap with each other with the State expending vast amounts of resources on institutions that go nowhere and do nothing other than stir scorn from the very ‘victims’ whom they are supposed to help. Indeed, it is infinitely wearisome to keep track of these mechanisms on Missing Persons, Reparations and now a proposed Truth Commission.

Earlier this month, Sri Lanka’s Permanent Representative in Geneva submitted to the 55th Sessions of the Council that the Government remained ‘steadfast and unwavering…in strengthening the foundations of national unity, post conflict reconciliation and human rights.’ But the evidence that was put forward to establish that promise remained thin on the ground.

That is, apart from the routine citation of a promised Truth Commission and that the Office of Missing Persons had ‘met’ with complainants. There was a faintly ludicrous claim that  sixteen persons had been found ‘alive’ in 2023. Meanwhile, an Office for National Unity and Reconciliation had been established by statute, the Council was told.

For whom are these new laws?

Of course none of these measures have the faintest tinge of credibility about them. And the Government’s reassurances about the preposterous Online Safety Act being amended ‘in good faith’ must be taken with more than a pinch of salt. The upshot is that such exercises do not ring true with either the so-called ‘international community’ or the Sri Lankan people.

And there is a new element that has crept into the process. Sri Lankans are used to Commissions and Committees established on Truth and Reconciliation to  be uniformly ineffective. Even so, there is a singular difference in the current Bill gazetted on 1st January 2024 with certain clauses having potentially dangerous consequences for those protesting against these bodies in good conscience.

For example, Clause 45 in Sri Lanka’s proposed Truth Commission Bill has significantly expanded powers of contempt normally conferred on Commissions. Thus, if any person resists or obstructs an officer (of the Commission) authorised under the Act or knowingly hinders or obstructs the Commission in the fulfilment or execution of its powers, obligations and duties, the offence of contempt of the Commission is committed.

Enhanced contempt powers to the proposed Truth Commission

So too if a person, ‘without reasonable excuse’ fails to comply with any other order of the Commission. The matter is then reported to the Court of Appeal whereupon the case will be tried as if the act of contempt has been committed against the Court itself. Relatively innocent by and of itself, the possibility that such powers may be wielded not for the public good is however quite real.

In past years, a common feature of protests by families of the disappeared from Jaffna to Mannar was ‘obstructing’ officials and members of state bodies, including the Office of Missing Persons. That opposition has come from a deep seated anger that their collective pain has not been recognised by the State. But would this serve as a ‘reasonable excuse’ for ‘defying’ an order of the Commission in a particular instance?

Clause 13 (zd) meanwhile authorizes the Commission to refer matters to the ‘relevant law enforcement or prosecuting authorities’ for further action and necessary action where it appears to the Commission that an offence punishable under the Penal Code (Cap 19) or any other law has been committed. Crucially, this power is subject to Clause 48 which states that no evidence of any statement made or given by any person to or before the Commission shall be admissible against that person in any action, prosecution or any proceedings in any civil or criminal court

No practical impact in
addressing impunity

Thus, this ‘referral’ is not worth very much. This is precisely the point at which each and every such Commission from the 1990’s onwards have failed to make any discernible impact on impunity. Where the relevant law enforcement or prosecutorial authorities are irredeemably politicised, there is little that a Truth Commission, even with the most laudable of motives, can accomplish.

Preventing the Commission’s proceedings from having practical impact in emblematic cases of grave human rights violations is very well secured. Clause 16 (1) makes it perfectly clear that the Commission’s recommendation shall not be determinant of civil or criminal liability of any person. That fetter read with Clause 48 puts the seal on the Commission’s ‘recommendations’ potentially having any more weight than its many predecessors.

Previous Commissions have also wasted state resources with no useful result bringing justice to victims. In fact, Sri Lanka can learn much in this regard from Nepal which has had far more robust discussions around what transitional justice mechanisms would help victims of a fraught internal conflict between 1996-2006 between state security forces and Maoist rebels. Both countries have similarly failed to bring accountability to the table.

A serious discussion on
concerns of victims

But the difference in Nepal is that the Supreme Court has intervened vigorously in responding to cries of victims. A transitional justice Bill presented to the Parliament in March 2023 was effectively a response to a Supreme Court ruling in 2015 that a 2014 law on ‘the Commission on Investigation of Disappeared Persons, Truth and Reconciliation’ did not adequately meet requisite standards under Nepal’s Constitution and international norms. The 2023 Bill was an attempt to rectify some of these shortcomings.

This provides for prosecution of ‘serious crimes’ including rape, torture or enforced disappearances if committed against unarmed persons and in a ‘widespread’ or ‘systematic’ manner. Prosecutions will be by the Attorney General on the recommendation of the Commission and the alleged offenders will be tried in a ‘Special Court.’ Amnesties can only be recommended through the ‘informed consent’ of victims which was a specific concern of the Court.

Regardless, this Bill has also been objected to by Nepali advocates primarily on the basis that it is not clear on accountability in respect of crimes against humanity and war crimes. Primarily they raise the concern that, crimes such as torture, rape or enforced disappearances need not be committed in a ‘systemic’ or ‘widespread’ manner to be referred for prosecution. Faced by strong opposition, the Government has embarked on a ‘continuing review’ of the Bill.

State responsibilities to citizens

The outcome of this process is yet uncertain. Despite  these shortcomings, there is a certain seriousness in the exercise that is prominently lacking in Sri Lanka. Here, it will be advisable for the Government not to rest its defence against the ‘evidence collecting arm’ of the Office of the High Commissioner for Human Rights purely on President Ranil Wickremesinghe’s gleeful articulation that the ‘West’ is guilty of double standards. Of course, the ‘West’ is guilty of double standards  as well as hypocrisy.

Its complicity in the dehumanization and the wiping out of the people of Gaza by the State of Israel is clear. The ability of the United Nations to put an end to these horrors despite authoritative pronouncements by the International Court of Justice is palpable. Even so, this is not a remotely justifiable reason for Sri Lanka to plead bland denial of its own responsibilities and indulge in patently superficial ‘transitional justice’ exercises.

Has this charade not gone on long enough?

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