17 April, 2024


Making Laws & Veiling Reality: Process Of Transitional Justice In Sri Lanka

By Anushka Kahandagama

Anushka Kahandagama

In the year 2015 the good governance Government started a new term of office, promising a more democratic country with restored justice. The main promises of the Government revolved around peace building, reconciliation, constitutional reforms, and eradication of corruption. It is incorrect to say that, these promises are entirely ignored; rather it clearly shows that promises were and are in the process of being fulfilled. The granting GSP+ to Sri Lanka has taken the country to another level in the eyes of the international community and as well as the locals. No doubt it has an immense impact on the economy of the country. It also implies that Sri Lanka is on the right track of good governance by protecting human rights, labour rights and environment.[1]

The good governance government has completed almost two years in office. The Establishment of Consultation Task Force on Reconciliation Mechanisms, Public Representation Committee on Constitutional Reforms, Commissions to investigate corruption,[2] adoption of National Drug Policy and most significantly the passage of the RTI Act in Parliament on June, 2016 can be identified as milestones of the good governance Government. In the aspect of laws and regulations progress seems immense. Further, documentation or publishing massive reports mostly informing the international community is way beyond satisfactory level. The real question is how realistic all these laws, documents and regulations are to people. Maybe it is zero or maybe it has some impact. However, formulating  of laws and documention would not solve the problem; these attempts need a practical approach so that people can get justice. It is a positive thing to document history and make laws to attain justice as much as possible. But the laws and documents should not be to veil the real issues. In this piece, my main focus would be the fading process of transitional justice with special attention to (none) establishment of the Office of Missing Person in the island.

People who were seeking post war justice are in pain and dying of wounds which have yet not healed. . The post war justice is not only for Tamils but also for Sinhalese and Muslims who suffered from the war at many levels. The military war widows who faced and face many difficulties after the death or injury of the husband, widows of civil security force officials, who are in a vulnerable situation without an income, as they are not getting long term remuneration, Muslims who suffered from the war without being a part of any side that was involved in the war, Sinhalese who lived in border villages who were used as a tool to sustain the Sinhala majority in all geographical areas and many more. These communities and individuals have suffered enough from war and waiting for a solution after the war. The proposed mechanisms of reconciliation after months of effort are hidden in a report which no one knows about.

The sole reconciliation mechanism initiated by the Government is the Office of Missing Persons (OMP). Disappearances were reported from throughout the island. The State as well as non-State actors has carried out disappearances across ethnic categories, class groups, religious categories, time and regions.[3] CTF has received submissions related to disappearances of;

(1) Village roundups of Tamil and Muslim civilians (war time and post-war) and Sinhalese civilians during the Southern insurrections by the police, army, and intelligence services.

(2) White van abductions of Tamil, Muslim and Sinhala civilians, including human rights defenders, journalists and workers, university students and others.

(3) Surrenders and subsequent disappearances of Tamil combatants to the armed forces and police, particularly during the last stage of the war.

(4) Families of surrendered LTTE cadres, including very young children who disappeared.

(5) Injured persons who disappeared during the war, particularly in its last stages, who were left behind in hospitals in LTTE-controlled areas or handed over to the military and seen taken away in military vehicles.

(6) LTTE and TMVP abductions of Tamil children and youth for recruitment whose current location is unknown

(7) LTTE or other militant group’s abductions of Sinhala and Muslim civilians.

(8) IPKF abductions of Tamil and Muslim civilians.

(9) JVP abductions of Sinhala civilians

(10) Disappearances of fishermen Tamil, Sinhalese and Muslim by the LTTE and Navy.

(11) Abduction of Tamil civilians by other Tamil militant groups

(12) Disappearances during rehabilitation of ex-combatants or suspected LTTE combatants.

(13) Disappearances inside IDP camps, mostly of Tamil and Muslim civilians and combatants.

(14) Combatant and police disappearances, including members of the armed forces who went missing in action, police personnel, and LTTE combatants.

(15) Disappearances that took place across the island in a context of pervasive abduction. [4]

The CTF recommended establishing an Office of Missing Persons under a name, which reflects the title ‘enforced disappearances’ and appropriately composed of staff that consists of the family members of the victims. It recommends the initial regional offices in central locations and then a gradual expansion to districts, for easy access. CTF further recommends international technical involvement in procedures of OMP and a level of transparency[5] and confidentiality[6] in its procedures. Excavations and exhumations must take place bearing in mind not only the identification of skeletal remains, but also of the possibility of prosecutions. It is recommends being sensitive to the psychological needs of families and communities. All the information of the disappeared and missing from national bodies and past commissions must be made available to OMP and the OMP must update the families of the disappeared periodically regarding the progress of the investigations.

The effort and initiative taken by the present Government is indubitably recognized. Having said that, the lack of importance given by the Government to the procedures is not to be ignored. The Government has passed the OMP bill without considering the recommendations of the CTF. Apart from being inattentive to the effort put by the CTF and the staff, the Government   disregarded the concerns of the people, who came from all over the island. The request to establish an Office of Missing Persons is not limited to the North and East, but came from other parts of the country as well. The nature of the Disappearances which cut across time, space, ethnicity, gender and religion emphasized the importance of establishing an OMP and in keeping with the will of the people. The passing of the OMP bill without considering the CTF recommendations was a great blow to the people. The whole exercise was a waste of public funds and a waste of time while there are concerns as to the sincerity or genuineness of government’s efforts in the reconciliation process.

Much recently, on 24th of July 2017, Amnesty International issued a press release urging to establish the Office of Missing Persons immediately. While the other mechanisms are fading away from the public domain, the only reconciliation mechanism which has some promise is still to be established even after 10 months of passing the OMP bill in Parliament. The civil society in Sri Lanka is shrinking in these domains where documentation take place and laws are being generated. The assimilation of active civil society members to the State or State driven institutions and authorities have weakened the capabilities of civil society which should be discussed in another piece of writing.

Without the enactment of recommendations, the documentation, laws and regulations will not only be futile, but also would draw misleading picture about human rights situation in the country. One would argue that, it is better to have ‘something’ rather than ‘nothing’. But the problem is, if this ‘something’ does not serve the public and mislead the left spaces where public still can seek justice, the ‘something’ becomes worse than ‘nothing’.

[1] ‘The country must ratify and effectively implement 27 international conventions on human and labour rights, environmental protection, and good governance without any reservations that are prohibited by those conventions, or which are incompatible with the object and purpose of the convention’ in GSP+ and Sri Lanka, June 201, Democracy Reporting International. http://democracy-reporting.org/wp-content/uploads/2016/06/GSP-and-Sri-Lanka_ENG-1.pdf

[2] http://www.sundaytimes.lk/170108/news/71-out-of-100-yahapalanayas-100-day-programme-in-retrospect-223236.html

[3] CTF report Volume I. 2016. 177

[4] CTF report Volume I. 2016. 180

[5] The role of the Judicial Mechanism, the Office of a Special Counsel and the OMP in investigations, has to be clarified and made public. The public must be made aware of the scope of the Special Court and Counsel and their responsibilities in respect of cases of disappearances. Given the large volume of disappearances, current delays and other obstructions in progressing with cases, necessary judicial reforms must be undertaken to enable prosecution for disappearances, including the establishment of a special bench of the relevant court to hear cases of disappearances (CTF 2017: 110)

[6] The OMP should make public its rules of procedure and the criteria it will adopt in the exercise of its discretion over the sharing of information with prosecutorial authorities. This should include criteria for the confidentiality of information in its possession. In this regard the OMP should clearly spell out its obligations under the impending Right to
Information regime (CTF 2017: 109).

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Latest comments

  • 3

    It is good to keep the discussion alive. Anushka has set out the issues involved well. Predictably, there will be little movement. Every politician has blood on his hands. The disappearances took place because most of the persons were surrendered to army personnel. Command responsibility was with the army commanders and with civilians in control. The latter include three presidents of Sri Lanka. It is going to be difficult to see quick movement without prodding from the international community. But, at the least, for the good of the suffering relatives what happened to the disappeared needs to be known. Increasingly, there is a clear international obligation that arises in the state of Sri Lanka to ensure that the missing persons are traced. The obligation will come to be clearly stated as time passes. It took many years for some war criminals like Fujimori to be brought to justice. The mills grind slowly but they will grind exceedingly small. No wonder Rajapakse keeps running to Pakistan and to China where many of his war criminal chums rule the states.

  • 0

    Transitional Justice is some liberal nonsense that sprang up in 90s in the American R2P strategy.

    The consultative task force on reconciliation was headed by NGOs which are funded by Norway and which used to be PRO LTTE. The NGO persons were known for their PRO LTTE bias during war and so called war crimes nonsense after their pet LTTE was defeated. The NGOs in SL are famous for their deafening silence and ignorance of LTTE cruelty. And hence a future government should investigate why the responsible PM of the country used these NGO people for this task.
    And without any surprise the report of the task force was PRO LTTE. It even went to the extent of asking GOSL to apologise to LTTE cadres. It was as if LTTE diaspora issued this report.

    And one should wonder how the NGO man Pakiasothy went Geneva representing an NGO could produce this government report in UN.

  • 1

    The promotion in rank and plum diplomatic posts of killers who have done the bidding of known psychopath should be easy to investigate.

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