By Esther Hoole –

Esther Hoole

In September 2015, the Government endorsed the Human Rights Council Resolution 30/1, and made an unprecedented commitment to transparency and accountability via a transitional justice process. It promised State-endorsed avenues to pursuing truth, justice, reparations and institutional reform, particularly in connection to the conflict. Immediately after the signing of the resolution it appeared that the transitional government was making concrete strides towards effectively dealing with the crimes committed by previous regimes and armed groups.

Three and a half years later, Sri Lanka’s political situation is remains unstable, and any commitment to transitional justice within Government seems to have waned. The political coup at the end of 2018 highlighted the serious cracks within the coalition government, the immense corruption within party politics, the vulnerability of some State institutions to the whims of the President, and the fragility of the entire transition. In relation to transitional justice, the few who supported it from within the Government have increasingly disengaged from it, as resistance to credible accountability grows stronger. Efforts to fulfill the commitments under Resolution 30/1 have been rushed, centered around the Human Rights Council sessions.

In 2019, we approach a series of major elections, that could re-define or put an end to any transitional reform process, including transitional justice. In the few months of the coup, with members of the former regime regaining power, there was an increase in surveillance and threats towards activists and victim groups, as well as the curtailment of media freedom – a reminder that a return to pre-2015 repression is a very possible outcome of these elections.

The prevalent political uncertainty indicates that in Government, there will be little to no political will or energy expended on transitional justice in the coming year, because of the controversy surrounding it. It is likely that any space left for a reformist agenda will be expended on passing a new constitution.

Given this broader context, we are left with the questions – 1) should transitional justice remain a priority in 2019?, and 2) how can transitional justice be advanced in this year despite increasing hurdles?

Transitional justice is underpinned by the global understanding that societies must address legacies of past crimes and human rights abuses to move forward into lasting peace and reconciliation. Although this coming May will mark ten years since the end of the conflict, Sri Lankan society is still far from a general acceptance that crimes were committed by both sides during the conflict, and from a credible accountability process. If we are to transform into a society which – in the long term – is reconciled, egalitarian, democratically stable, and which honours the law, implementing the transitional justice process of Resolution 30/1 is vital.

There is also a more politically realist point to be made here. One of the greatest contributors to the 2015 transition was the overwhelming support of minority communities, which also contain the largest victim communities. If the current government fails to perform on election promises of establishing the truth and judicial accountability within the coming year, it risks losing a significant – perhaps defining – portion of its 2015 voter base. For the continuation of a more liberal government post-2019, and the long-term political stability and peace of Sri Lanka, transitional justice must remain a priority, both domestically and internationally.

It is undeniable however, that the scope for transitional justice in Sri Lanka has narrowed dramatically in the past few years, with little to no political will, and a much stronger opposition. Advocates for transitional justice – diplomats, civil society and media – must alter their approach accordingly. In 2015, the modus operandi was to engage directly with the top tiers of Government – that door is fast closing. In the coming year, stakeholders must prioritize strengthening the gains of the past few years, building capacity and knowledge on transitional justice within lower tiers of government institutions and mobilizing public support for transitional justice.

The most concrete outcome of Resolution 30/1 in the past three years, is the Office on Missing Persons (OMP). Although it is not yet fully operationalized, it possesses a strong legal mandate and a fairly independent group of commissioners. The work of the OMP is extremely important. It is chiefly charged with finding the fate and whereabouts of those who were abducted or disappeared during the previous regime, particularly in connection with the ethnic conflict and other political and civil disturbances.  As such, tracing the fate of the more than 20,000 disappeared is a pressing need – socially and legally. The OMP also has the potential to uncover broader truths about repressive and criminal policies and conduct within State institutions that led to disappearances, which could contribute to truth-seeking efforts and lead to justice.

Since its inception the OMP has had to face much opposition by various political entities and continues to do so . To counter this, stakeholders must advocate for the OMP amongst the public, and ensure that State institutions collaborate with the OMP’s investigative process in the coming year.

2019 must also be a year where the independence, human rights compliance and capacity of State institutions are strengthened to support a transitional justice process. One of the encouraging revelations of the 2018 coup was the heightened independence of the judiciary. This was not the case three years ago, and bears testimony that there has been a measure of institutional reform since the transition. However, there is still much progress to be made in other departments. For example, prosecuting authorities have at times demonstrated  a more state-centric stance in times of political crisis. This is reflected in the working culture within civil service. Within the military there have been several recent promotions of personnel alleged to have committed grave violations of human rights and international humanitarian law, or implicated in domestic crimes. Stakeholders must push for vetting and institutional reform within key State departments. In many cases this may be done without legislative reform, despite conflicting political agendas, via capacity-building and strengthened advocacy within the relevant institutions.

Finally, 2019 must be a year of public mobilization – towards liberal democracy, truth and justice. Coup 2018 was testament to the power of the people in a democracy. Never has the Sri Lankan public so overwhelmingly and effectively engaged in domestic affairs demanding clean governance, the rule of law and fundamental rights. If Sri Lanka is to move towards being a functioning democracy based on principles and not populism, it is vital that this progress is maintained and advanced. Politicians and policy-makers must be held to account by their constituencies. With respect to transitional justice, stakeholders must continue to build awareness among all communities regarding the need to deal with the past, establish the truth and to pursue justice for crimes committed by all parties to the conflict. Regardless of which government emerges in 2020, a credible transitional justice process will necessarily require support and pressure from the public. 2019 must be a year of informing and building that support.

Despite the considerable political uncertainty that this year may bring, stakeholders must ensure that transitional justice remains an integral part of their agenda.  Lack of accountability for thirty years of repression, violence and conflict could negatively impact development and further destabilize national politics and security. The fulfilment of HRC Resolution 30/1 – Sri Lanka’s transitional justice manifesto – is uncompromisingly vital for any genuine and sustainable progress.