Columns

If proposed legislation on a Truth and Reconciliation Commission (TRC) is to be soon thrust upon us as appears to be the case, Sri Lanka’s unity Government would do well to employ the few shrewd minds in its midst to look strategically back at lessons learnt in regard to the turbulent passage of the Office of Missing Persons (OMP) law.

Avoidance of a confrontational dynamic
Similar mishaps must be avoided this time around. Once was bad enough. Twice would unbearably aggravate perturbed public opinion, emanating from the North to the South for a whole range of different reasons, some predictable and some, not so much. This is even more urgent, I might add, given that high octane question which immediately follows next on the transitional justice agenda regarding the institution of a special court on war-time accountability.

Absent such measured reflection, the stage will already be set for a confrontational dynamic by the time that this most contested issue of a special court is reached. Miserably this will not only deepen tensions between communities but also set the final seal on the undoing of the great and glorious expectations with which this Presidency and this Government came into power last year.

Fortuitously for those concerned with the democratization of Sri Lanka, the Rajapaksa-led Joint Opposition still remains mired in a communal and corruption quagmire. But this may only be a passing comfort given the peculiarities of Sri Lankan politics. The Government needs to get itself back on track regardless of other variables.

Directly involving the North and the South
As of now, two imperatives predominate. First, there must be a strong push by the Office of the Presidency to take the message to the South that the transitional justice exercise constitutes healing desperately needed for the Sri Lankan people of all ethnicities rather than a superficial effort propelled by external pressures.

This is a task that is best handled by President Sirisena himself who is listened to by his constituencies despite missteps taken in office such as bringing in rejects as ministerial worthies. Leaving this to his motley of Ministers whose collective inefficiency is only equaled by their manifest lack of popular credibility would be most unwise. Further, this must not be limited to instances when international visitors come bouncing and beaming into town. This is an approach that only lends itself to the perception of an externally ‘managed’ exercise.

Second, a directly consultative process must take place in the former war theatre among Tamil, Muslim and Sinhala communities. Consultations must not be filtered through the lens of one political party or the other or for that matter, limited to select non-governmental bodies. Intrusive state surveillance of citizens must be reduced and long pending cases of extraordinary state brutality must be brought to justice, apart from the return of land to their rightful owners which, the President has promised, will be hastened. And the formulation of national policies from torture to witness protection by those horribly compromised through complicity in state abuses must stop forthwith. Needless to say, this unabashed practice in Colombo does not foster public confidence in the integrity of the process.

Direct link to penal accountability
The setting up of a TRC as part of the ‘package’ of transitional justice reforms seems a fait accompli at this stage, despite legitimate apprehensions that it will become another farcical Commission of Inquiry. So those resigned to the inevitable may perhaps press for certain specific demands, one of which is common to the OMP and relates to establishing an explicit link with a substantively reformed criminal justice system.

Back in 2008, following years of advocacy, the Commissions of Inquiry Act of 1948 was amended to impose an obligation upon the Attorney General (AG) to institute criminal proceedings on the findings of a commission of inquiry. The AG never actually acted under this section owing to the politicization of the Office. This lack of political will must be turned most spectacularly on its ignoble head.

Thus, the incorporation of command responsibility and the crime of enforced disappearances must be accompanied by effective investigations, prosecutions by a permanent independent office of special counsel and a competent judicial process. Judicial review of decisions to prosecute or not to, as the case may be, must be the norm. Simply ensuring the conviction of Rajapaksa loyalists, (one of which we saw this week to universal hurrahs) does not suffice. Practical activation of laws enacted to deter gross human rights violations such as the excellently crafted Convention against Torture Act, 1994 is crucial.

Effectively countering ‘Rajapaksa hysteria’
Importantly these debates are distinct from an ad hoc accountability mechanism aiming at a few out of political favor as well as other eccentricities including an extremely ill-argued contention surfacing recently that international crimes must be applied retroactively. The expedient use of constitutional provisions and the (unsurprisingly) incorrect citation of national case law in that regard need to be dealt with elsewhere than in the limited confines of a newspaper column.

But above all, the unity Government must depart from a seemingly pervasive perception that it need only win accolades from the international community and push through ad hoc legislation aided by a dubious consultative process. It must determinedly rise above its chaotic self and venture beyond the safe comfort zone of ‘yahapalanaya’ cheerleaders to question this flawed premise. Taking the message directly to the Sri Lankan people will minimize the hysteria of the Rajapaksa-led opposition, which is surely an outcome favourable to all. Not to do so would be patronizingly dismissive of affected communities, leading to an angry North and a sullen South as it were.

And the exuberant happiness of Government Ministers in seeing broad smiles on the face of outgoing United Nations Secretary General Ban Ki Moon during his visit to Colombo must be tempered by the realization that it would be better to seek for more smiles among the Sri Lankan people in regard to what is unfolding on the ground.

Going forward, the national effort must be towards redressing this potentially explosive imbalance.