Human Rights Day, Transitional Justice

and the Reform Agenda in Sri Lanka:

What Next?

Photograph courtesy Sampur documentary, featured on TJ Sri

Lanka

BHAVANI FONSEKA on 12/10/2016

10th December marks international human rights day. While we
should respect, promote and protect human rights regardless of a

special day, 10th December ideally should be when we revisit and

reflect on our human rights obligations, their relevance and how
best to fully realize them. On this day in 1948, the United Nations
General Assembly adopted the Universal Declaration of Human
Rights (UDHR), providing a common standard and facilitating
members of the international community to develop binding
human rights guarantees and obligations. While we mark human
rights day in Sri Lanka, it is fitting to revisit the UDHR and what it
stands for in the present day. The preamble refers to the inherent
dignity and of the equal and inalienable rights of all members of
the human family is the foundation of freedom, justice and peace
in the world. The UDHR states that human rights should be
protected by the rule of law and reaffirms the UN Charter with
the faith in fundamental human rights, in the dignity and worth of
the human person and in the equal rights of men and women and
have determined to promote social progress and better standards
of life in larger freedom. Important points to consider in the midst
of the reforms underway and what we as Sri Lankans should
aspire to.
An ambitious reform agenda is in the cards. Nearly two years into
the Sirisena government, it is an opportunity to reflect on the past
and consider prospects for the future. Successive governments in
Sri Lanka are accused of subverting international and national
obligations. Serious human rights violations and violations of
international humanitarian law were evident from all parties in the
near three decades war and post war period. This was a dark
chapter in Sri Lanka and a reminder to all of us as to why reforms
are so critical for non-recurrence. We are presently in the cusp of
drafting a new constitution. Commitments have also been made
in the consensus resolution adopted in October 2015 at the
United Nations Human Rights Council (UNHRC). A transitional
justice process is underway, with the likelihood of the
establishment of the first permanent office to investigate
enforced disappearances and missing persons. Several other

mechanisms and legal and policy reforms are promised. In March

2017 Sri Lanka will be discussed by the UNHRC, when the
progress of the 2015 resolution will be reviewed. Later in the year,
Sri Lankas third Universal Periodic Review (UPR) will take place.
These and many other processes provides Sri Lankans an
opportunity to revisit, reflect and reckon with the past and identify
ways forward to protect rights and take action to end impunity.
The last decade, despite its violence and darkness, also witnessed
the creation of Groundviews. My colleague Sanjana commenced
an important journey in 2006 and since then Groundviews has
gone from strength to strength. While we celebrate a decade of
great achievements by Groundviews, it is also a reflection on
what is before us. We have been promised a range of reforms,
from constitutional reforms to transitional justice to economic
reforms. This article briefly examines the importance of one area
of promised reforms- Transitional Justice- and why it is a critical
aspect if reconciliation is to be fully realized in Sri Lanka.
Human Rights & Transitional Justice
Since the political transition in 2015, some successes in terms of
human rights have been made. This includes the ratification of
the International Convention for the Protection of All Persons from
Enforced Disappearance, the introduction of the 19 th Amendment
to the Constitution that provides for the Right to Information and
independent institutions such as the National Human Rights
Commission, release of lands in some areas in the North and East
and the ability of some people to return home, among others.
Despite some progress, the list of areas needing attention is long.
Whether the reforms will be delivered and there is demonstrable
structural and tangible changes is to be seen.

Transitional justice is a process that provides for social

transformation, exercises justice, addresses impunity and offers
remedies in the wake of massive violence. It is a process looking
at the past and moving forward, examining what has happened in
the past, taking action and ensuring non recurrence. Much has
been said about transitional justice in Sri Lanka and its impact.
One aspect that may not always receive attention is the linkages
of transitional justice with the rights discourse. In creating the
mandate of the UN Special Rapporteur on the promotion of Truth,
Justice, Reparation and Guarantees of Non-recurrence, the UNHRC
provides that transitional justice as a strategy is aimed at
guaranteeing respect for and protection of human rights in the
aftermath of widespread or serious violations. Transitional justice
thus provides for the right to truth, right to justice and the right to
reparations. It recognizes the critical role of victims and ensures a
victim centered approach. This then entails providing answers,
access to justice and ending impunity, providing remedies and
rebuilding trust. It is also the enforcement of human rights
standards such as the due process of law and ultimately the
strengthening of the rule of law. All of the above are fundamental
to a society that experienced massive abuses in the past and Sri
Lanka is no exception. Despite attempts to create misconceptions
on what transitional justice is meant for Sri Lanka by some
sections of society, one cannot deny the need for a transitional
justice process that addresses the grievances and past abuses in
Sri Lanka and ensures steps are taken on non-recurrence.
The 2015 resolution contains Sri Lankas commitments on
transitional justice. They include the establishment of a hybrid
court with a special counsels office, a truth and reconciliation
commission, an Office for Missing Persons (OMP), an Office for
Reparations, security sector reforms, land releases, independent
investigations and legal reforms, among many others. Since the
adoption of the resolution, the legislation on the OMP was enacted
speedily in Parliament but despite a few months since its passage,

no office is yet established. Officials have publicly stated that it is

unlikely any other legislation on transitional justice is to be
introduced in 2016, resulting in delays with the establishment of
the remaining mechanisms committed in the 2015 resolution.
Understandably, constitutional reforms have received much
attention and likely to consume the legislature in the coming
months. While the prioritization is inevitable, what is
disappointing is the absence of genuine commitment by the
political leadership, the lack of a strategy on transitional justice
and the gaps with communication. More than a year after the
adoption of the 2015 resolution, the mixed messages from
different actors in government on the implementation of its own
commitments, namely the role of the international judges, is an
indicator of the lack of coherence among key actors. Moreover,
the absence of champions to take the transitional justice process
forward is telling. Unlike other processes such as constitutional
and economic reforms, transitional justice has evidenced a rather
step motherly approach. The lack of a clear strategy has resulted
in a siloed approach. Numerous advisers, consultants, committees
and working groups have been appointed to advice, design and
draft but a question is whether they are privy to all aspects of
transitional justice or merely the bits shared with them. For
example, are those involved in drafting legislation for a future
TRC, court and an entity on reparations aware of what is proposed
within the security sector reforms? And most recently, the
proposed counter terrorism legislation and amendment to the
Criminal Procedure Code are indicators of the tensions within
government and the lack of cohesion and coherence. The few
developments so far in the transitional justice realm are telling in
terms of the inability and possible unwillingness among key actors
in government to understand and fully grasp the complexities
involved.
The challenges are many. Any post war context is likely to face
numerous setbacks. There are likely to be more developments,

surprises and challenges in the coming months. That said, there is

a window for reforms and it is paramount that citizens who want
to see real change keep the pressure. Countries that experienced
similar situations such as Argentina, Chile, Guatemala and Sierra
Leone went through years of uncertainties and delays but
persistence and patience ensured reforms that ultimately
addressed the culture of impunity. Sri Lanka has commenced that
journey and it is critical to see it through.
Seizing opportunities in 2017
The next few months is likely to see some activity in terms of
progress with the commitments made in 2015. The March session
at the UNHRC will see the reporting back by the High
Commissioner for Human Rights and a review on progress made
in Sri Lanka. Victims and civil society in Sri Lanka have called for a
follow up resolution where Sri Lanka remain on the agenda of the
UNHRC, a necessary step to support the government in fulfilling
its commitments. The lack of demonstrable progress in many
areas makes a case why Sri Lanka and Sri Lankans require
continued support to carry through with reforms. The March
session and the subsequent UPR process both provide
opportunities for Sri Lanka to receive the support it requires in
realizing much needed reforms.
The constitutional reform process is also likely to eclipse other
reform processes. It is paramount that Sri Lankans utilize these
months to push for reforms that provide for a political solution
and a rights framework that addresses the grievances of Sri
Lankans. While attention has been largely focused on the
inclusion of socio economic rights in a future Bill of Rights, many
Sri Lankans have failed to realize the importance of including
safeguards to address violence and deal with the past in the
Constitution. This includes providing for the right to truth, justice,

reparations and non-recurrence. Constitutions in Tunisia, Kenya

and Mexico recognize the importance of incorporating substantive
transitional justice provisions into their respective rights
framework. Recognizing Sri Lankas own past and commitments
towards reform, recommendations have been made to
incorporate specific rights into the Constitution to provide for
truth, justice, reparations and non-recurrence. With the
constitutional reform process underway, it is paramount and
timely to revisit these issues, taking this opportunity to recognize
and reckon with the past and introduce guarantees for nonrecurrence.
The transition in Sri Lanka is due to many factors, with victims
and civil society playing a critical role. Their calls for justice were
loud and clear over the last few decades, a persistent reminder of
what is at stake and why we cannot slide towards impunity. The
last year has witnessed several challenges including frustrations
and divisions among colleagues who stood together during some
difficult years. The delays in implementation, lack of transparency
and inclusivity in the design of mechanisms have all contributed
to these sentiments. With 2017 likely to witness some movement
on transitional justice, those who have been active in the past
must keep the pressure in the implementation of commitments. In
this, victims and civil society must continue to play a prominent
role in the future, persevering with reforms, and the right to truth,
justice and reparations and guarantees of non-recurrence.
The opportunity is now to break from the past. Much rides on the
political leadership and it is to be seen whether the promises
made are fulfilled or merely added to the long list of empty
promises of successive governments. Will 2017 be the year we
see a shift that commences a process for the full realization of
human rights of all citizens? Will it be the year we witness a break
from the past and where reforms are delivered? Civil society and
others who played a critical role in bringing the change must

stand tall and keep pushing the reform agenda. And all Sri
Lankans must seize the opportunity to hold the political
leadership to the commitments made and realize a new Sri Lanka.
Posted by Thavam