Revisiting Transitional Justice in Sri

Lanka: The Rhetoric, Realities &

Opportunities

by Bhavani Fonseka - on 09/08/2015

2015 witnessed two national elections in Sri Lanka- Presidential and

Parliamentary, with a mandate given to President Maithripala Sirisenas
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
8thParliament 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,
thePresidential 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
wideconsultations 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 Lankas 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 ofreparations.
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 Sirisenas 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.

Posted by Thavam