By Jehan Perera –

Jehan Perera

The 32nd session of the UN Human Rights Council starts this week in Geneva at which the case of Sri Lanka will be taken up. UN Human Rights Commissioner Zeid Ra’ad Zeid Al-Hussein will make a statement on the progress that has taken place with regard to the UNHRC resolution of October 2015 which was co-sponsored by the Sri Lankan government. The main institutional development to be presented will be the Office of Missing Persons of which the Sri Lankan government has presented draft legislation approved by the cabinet of ministers. There will be many other developments reported too, such as the government’s ratification of the UN Convention on Enforced Disappearances, the issuance of Sri Lankan passports to those who claimed asylum abroad, the deproscription of many banned organizations and the report of the Public Representations Committee on Constitutional Reform.

The government may await feedback from the UNHRC prior to submitting the draft legislation on the Office of Missing Persons to Parliament for final passage into law. The defeat of the no-confidence motion against Finance Minister Ravi Karunanayake by a comfortable majority of 145 votes to 51 in Parliament will give the government confidence that it can pass the first of the transitional justice mechanisms that it has developed into law. At the 30th session of the UNHRC that took place in September 2015 the government promised four mechanisms to promote transitional justice. In addition to the Office of Missing Persons, the government promised to set up a Truth and Reconciliation Commission, a Special Court on Accountability and an Office of Reparations. Although the draft legislation regarding these three mechanisms has not emerged it is reported that the government is close to completion on them too.

Both President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe appear to have reached a consensus on the parameters of the Special Court which is by far the most controversial of the transitional justice mechanisms. The UNHRC resolution that the government co-sponsored in October 2015 stated that the special court would be a Sri Lankan judicial mechanism but which would have the participation in it of foreign and Commonwealth judges, prosecutors and investigators. It was generally believed that the government had thereby agreed to a hybrid judicial mechanism comprising a court with both national and international judges in it. However, in the more recent past, both the President and Prime Minister have been making statements that have been limiting the international participation to being technical and advisory. “If necessary we can obtain foreign technical support but without commitments or conditions attached,” the President has said recently.

Vacuum Principle 

By limiting the international participation in the accountability mechanism the government has at least temporarily held at bay the nationalist opposition from within the Sinhalese community. The issue of accountability for war crimes emerged at the close of the war in 2009. At that time the forces of Sinhalese nationalism, both within and outside the government, took the offensive claiming that the international community had no role or legitimacy to sit in judgment on war heroes who had reunified the country. Prosecuting the political and military leaders most responsible for the war victory would be difficult under any circumstance in any country. The involvement of foreign judges in these circumstances would be ready grist to those in the nationalist camp who would wish to mobilize the people in opposition to what the government has proposed.

The government’s strategy of working without publicity or fanfare on the development of its conceptual and legal framework for the four transitional justice mechanisms has meant that the general public, including most in the government, in the opposition and in civil society, have been left in the dark regarding what is actually happening. On the one hand, this neglect is bound to create a sense of being marginalized amongst those not taken into confidence about the government’s transitional justice process. On the other hand, it has also meant that there has been no strong political resistance to the development of these four mechanisms. This is accordance with the Newtonian principle that objects in motion in a vacuum continue at the same speed in the absence of any resistance. The sudden emergence of the draft legislation on the Office of Missing Persons is evidence of the success of the government’s strategy of keeping the process a largely confidential and non-transparent one which has prevented the opposition from generating resistance to it.

So far the government has been limiting the public participation on the transitional justice mechanisms to selected civil society groups. These are groups that have earned credibility both within the country and internationally on account of their principled and courageous positions in the past. During the period of the previous government when civil society was besieged and human rights were violated with impunity, these civil society groups resisted the government. Although the government did not come out publicly with its first drafts of the legislation on the Office of Missing Persons, or hold broad based consultations, it held consultations with a small number of civil society activists. As a result there have been considerable improvements made to the original drafts. In addition to obtaining the support of civil society groups within Sri Lanka, the government has also been able to secure the support of the UN system itself through skillful diplomacy.

Past Failures 

UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Pablo de Greiff, was in Sri Lanka last week to make an assessment of the government’s efforts to deliver on the promises it made when it co-sponsored the UNHRC resolution. His mission was also to ensure that Sri Lanka reaches international standards in delivering on its promises. During his visit he met with government leaders, military commanders and civil society activists which enabled him to make a first-hand appraisal of the prevailing situation. It appeared that those at the highest levels of the polity, military hierarchy and civil society were supportive of the government’s transitional justice process. It also appeared that he was satisfied with the government’s efforts although in discussions the need for the government to establish a single political focal point for the transitional justice process, which included administrative support structures was stressed.

The support of the apex of any society is necessary for change to take place. However, in cases of controversy where public support is also necessary, high level support alone is not sufficient. The setting up of institutions such as the Office of Missing Persons and obtaining support for them from the highest levels is important, but is not a sufficient condition for the eventual success of the process. The history of Sri Lanka’s ethnic conflict and attempts made to resolve it are replete with examples of failed efforts by those at the highest level of the polity due to lack of support from all other levels. Beginning with the Bandaranaike-Chelvanayakam Pact of 1957, which was an agreement between the Prime Minister and main Tamil leader of that time, to the Indo Lanka Peace Accord of 1987 which was an agreement signed by the President of Sri Lanka and the Prime Minister of India, to the Ceasefire Agreement of 2002 between the Prime Minister and LTTE leader, all non-transparent and confidential agreements could not be sustained when they became public.

At the present time, it is the relationship at the highest level between President and Prime Minister, major parties and minority parties that keeps the process on course. However those at the next level below, and the general public, are still not part of this process. The government was adopting a deliberate strategy of keeping the details of its process – the accountability mechanisms and constitutional reforms outside of public discourse. This was to avoid counter campaigns on extreme ethnic lines that would prematurely sabotage efforts at meaningful reconciliation. However, this also has meant that there is a vacuum in public information and engagement, which can be and is going to be filled by those who describe the transitional justice process as a betrayal of the country’s military and those responsible for ending the 30-year long war. The true battle for the people’s hearts and minds is yet to commence, the storm is yet to break. Civil society has a key role to play as it did at the Presidential Election of 2015 to educate the public on the ground. The political champions of transitional justice are yet to appear on the ground.