By Sanja De Silva Jayatilleka –

Sanja De Silva Jayatilleka

It must surely be thought odd that I am even undertaking an effort to intervene here on a subject that requires comment by lawyers or political scientists. But as a concerned citizen-observer I have some worries and since I have not seen any debate whatsoever in the media, I want to raise some questions and hopefully contribute to an informed public discussion.

When and who decided that what Sri Lanka needed in the post-war period was ‘Transitional Justice’? Where and on what basis did they decide that?

My curiosity about this was aroused after a conversation with an overseas visitor to our home, representing a major UN related agency, who admitted that the concept of Transitional Justice (TJ) derived from a Latin American context, the criteria for its applicability had not been fully developed, and that even at the UN it had been used inappropriately and indiscriminately, and in quite a few cases to little benefit.

My other conversations with staff working for INGOs revealed that the overseas funding was earmarked and plentiful for projects that involved Transitional Justice in Sri Lanka, which does not make for the most conducive atmosphere for awkward questions of local applicability.

It became a serious issue when the UN High Commissioner for Human Rights recommended Transitional Justice mechanisms for Sri Lanka and our Ambassador in Geneva thanked the international community for their assistance with Transitional Justice at the ongoing (September) 33rd session of the UNHRC.

My concern is that, from what I can gather from the literature, Transitional Justice is applied either when military dictatorships or totalitarian regimes are overthrown by people fighting for freedom and democracy or when civil wars draw to a negotiated end after a “hurting stalemate”. In the latter case, the full package of Transitional Justice is not invoked. Transitional Justice seems to apply mainly in times of radical political transformation from a non-democratic or authoritarian political system to a democratic political order, and not merely a more liberal political culture or style of governance.

Examples given in an Oxford University Press book on Transitional Justice leaves no ambiguity as to what exactly this means: “Transition from communist rule in East and Central Europe and the former Soviet Union” and “…repressive military rule in Latin America and Africa.” (‘Transitional Justice’ by Ruti G. Teitel). It also says: “The problem of Transitional Justice arises within the distinctive context of transition- a shift in political orders.” In short, Transitional Justice is relevant to a qualitative or systemic discontinuity; a macro change.

Does a democratically held general election at which the (combined) opposition won a majority and formed a coalition government with a dissident section of the former democratically elected government, qualify? Where’s the shift in “political order”? It is the same essentially democratic multiparty political order, before and after.

There have been multiple changes of style of government and/or political culture at the general elections over the decades. There have been issues of Law and Order under each of those administrations. All those changes took place under essentially the same political order. So it was, most recently as well. There’s a new experiment in governance, a temporary coalition government with a different set of ideas and ideology, but that is hardly a change in political order or a radical political transformation.

Is it a “shift” of the political order in which we found ourselves, after the elected government of the day militarily defeated a terrorist force engaging in warfare to establish a separate state? After its victory, the democratically elected government proceeded to hold elections in the areas formerly under terrorist control and also hold general elections at which it got re-elected under the same political order as before the victory. That government was eventually voted out of office under the same political order, without any preceding rupture in it or dissolution or overthrow of it. So that doesn’t seem to qualify.

Is Transitional Justice to do with accountability for alleged crimes committed during the last stages of a 30 year war? There are relevant mechanisms to deal with these issues. Does justice seeking and accountability for such alleged crimes necessarily bring into play “Transitional Justice”?

Transitional Justice applied in Latin America where there was a transitioning from an authoritarian military dictatorship engaging in grave violations of human rights in previous decades, to an electoral democracy. That is clearly a political transformation—a transformation or shift in the political order, which is much more than an electoral change. Is that remotely like what happened in Sri Lanka?

What is my objection? It is that when “Transitional Justice” is invoked, it seems to my non-lawyer’s mind, to assume or imply that it is against a non-democratic, authoritarian regime from which the citizenry at large sought to free themselves, and did so after the war. This was manifestly not the case. Indeed it was the opposite, where a majority of citizens exhorted the government to fulfill their obligation to protect them from daily threat of terror and only one leadership or administration listened, and the citizens were grateful for it. This is why the existing leadership was re-elected in 2010, which is hardly evidence of the overthrow of the postwar regime.

What is significant about the term Transitional Justice? What makes it different from existing notions of law and order, crime and punishment, justice and accountability? It introduces or implies the idea of collective victimhood and systemic violations, over a long period, by the state. That is why a ‘transition’ is needed. This shifts the ground from the issue of individual crimes and punishment. It looks to me like an attempt is being made to introduce and accept through semantics, the charge of war crimes and crimes against humanity or grave violations of human rights, against the Sri Lankan military, the earlier administration, and the last war.

If we are made to believe through constant invocation of this term, that there’s been a transition of great magnitude, we are logically made to believe that there was an earlier political order that was undemocratic as a system—whereas the reality is that what we had since Independence was a democratic political order, with its periodic elections and multiparty system, which order and system were preserved by the state by fighting against totalitarian terrorist non-state actors, North and South.

In addition, all the improvements to the system and process of Justice are made, and accountability for individual crimes committed are being addressed, under the same democratic order we’ve had for decades.

This is why I was dismayed to hear our ambassador in Geneva thank the international community for their assistance with Transitional Justice. Yes, the High Commissioner for Human Rights Prince Zeid insisted that we implement Transitional Justice mechanisms. But then the same UN High Commissioner not only unquestioningly adopted the Darusman Panel’s report and declared his horror at its (unsubstantiated) findings but proceeded to recommend in his written Report, prosecution under the doctrine of universal jurisdiction in all 193 UN member states, of Sri Lankans against whom there are “credible allegations”.

At UNESCO’s annual Café Philo, the Philosophy Day event in Paris in 2011, the glamorous Slovenian Ambassador, a Professor of Philosophy, intervened memorably in a discussion to say that “Terms that are used to describe something are important and are neither innocent nor neutral”. She urged, “Never let other people define you!” It is important for us to understand what happened, achieve clarity, and not fall for propaganda. Our citizens must not be victims of psychological warfare. So, is Transitional Justice a treat, a trick or a trap for Sri Lanka?