Transitional Justice & Where Sri Lanka Stands

By Pabodha Hettige –AUGUST 29, 2020

Pabodha Hettige

 Lanka is at a crucial juncture, where reconciliation should have to be one of the prime objectives in the administrative bucket list. After the lapse of more than a decade of ending the civil war, have we achieved that feat? The transitional justice and other rights concerns seem to be limited to mere words. 

To further endorse it Sri Lanka expressed its desire to withdraw from the United Nations Human Rights Council (UNHCR) resolution 30/1 earlier this year, which intends to promote reconciliation, accountability, and human rights in post war Sri Lanka. 

The Last Five Years

The resolution was co-sponsored by the coalition government (2015), led by the former president Maithripala Sirisena. The transitional justice agenda included a truth commission and an accountability mechanism to address wartime rights abuses. It was an appreciable stride in the international engagement.

However, did the former government genuinely committed to achieve the proposed objectives is highly disputed. In January 2016, then Prime Minister Ranil Wickramesinghe appointed a Consultation Task Force on reconciliation, whose findings and the recommendations were never endorsed by the government. Similarly, what happened to the Office of Missing Persons is also ambiguous. 

One reason that could be attributed to the reluctance of the coalition government’s abiding was that President Sirisena was adamant in his footing that the military personnel, whom he referred to as war heroes should be protected of all the allegations at all costs. While hailing the real war heroes, it was only right to bring the perpetrators to book instead of safeguarding them. Transitional justice system that was supposed to be victim centered may have been perpetrator centered under the previous government. 

Another huge disappointment was not repealing the Prevention of Terrorism Act (PTA), which enables and facilitates indefinite detention without charge, torture and other abuses. New counter terrorism laws were never successfully introduced and this seriously flawed the proposed transitional justice. Also, the government’s failure to coordinate with the civil society actors to create a cross ethnic dialog, to educate and create awareness through advocacy and informal diplomacy and to address economic and social issues that burdened the ethnic minority was a major drawback in achieving the desired objectives. However, one positive attribute during the former government was that the civil society actors were strengthened unlike being weakened under the Rajapaksa political patronage. 

Nevertheless, much could not be expected of a government that had prior awareness of the Easter attacks, yet opted to do nothing putting an entire nation at risk, which also failed to deal with the aftermath the way an accountable government does.

The Current Situation

Sri Lanka is back into enjoying a fresh Rajapaksa era and the brothers (Mahinda and Gotabaya) are credited for ending the 30 odd years of civil war. But, at the same time they are accused of brutal human rights violations, extra judicial killings and abductions during the period of 2005 to 2015, where nobody was held accountable for the alleged human rights violations. It is a subject of concerns as to how the victimized ethnic minority of Sri Lanka views this new era. Do they still have a hope for reconciliation or are they plagued by a new found fear, is only known by them.

Upon expressing the desire to withdraw from the UNHRC resolutions, it seems President Gotabaya Rajapaksa had a different strategy to address the long overdue reconciliation. His elucidation for non cooperation was to pursue a national plan to achieve sustainable peace through a domestically designed mechanism. Whether such mechanism has been drawn up or in the process of being drawn up is something the general public is still unaware of.

However, the motive behind the desire to withdraw seems to have been in their best interest rather than the country’s best interest. The bogus nationalistic ideology and patriotism is only a drama acted before the public only to score popular votes and to save themselves and their allies from the impending adversities.

Shavendra Silva and Reconciliation

Appointment of Shavendra Silva as the Commander in chief of the armed forces and subsequently as the Lieutenant General is a sharply criticized move by the international community as well as certain factions of the Sri Lankan general public, as it is being viewed as a move highly undermining the reconciliation efforts.

Although denied by him, Silva and his troops are accused for gross violation of human rights and humanitarian laws including shelling a hospital, no fire zones and hindering humanitarian supplies. According to the United Nations an estimated 45,000 Tamil civilians have been killed during the last months of the war.

Silva and his immediate family was imposed travel restrictions to the US over the alleged violations of human rights, only after which, the desire of the government to opt out from the UNHCR resolution sprang up.

The move undoubtedly has undermined Sri Lankan reputation in the international community and our commitment towards transitional justice. 

The fruit of the reconciliation efforts cannot be reaped overnight and instead of facilitating it and creating an environment conducive to peace and trust building, the government has created a deep trench by such appointment. 

Continuing threats

The fear and intimidating campaign towards activists have continued under the Gotabaya Rajapaksa regime as expected. It has included intimidation, assault, threatening and arbitrary arrests. These actions have been a fine portrayal of hostilities towards the ethnic and religious minority of Sri Lanka. 

Most recently, in April, Hejaaz Hizbullah, a lawyer who has represented victims of human rights violations, was apprehended under the PTA, where he was held in custody without charges and without being produced before a magistrate for an extended period. He was also accused of his alleged involvement in terrorism.

Lawyer, Swastika Arulingam, being arrested and briefly detained in June, Lawyer Achala Senevirathne, representing the families of victims of forced disappearance receiving death threats and journalist Dharisha Bastians having to leave the country upon imminent fear are few of the many instances taken place under the oppression extended under President Rajapaksa.

If reconciliation to be achieved should an open dialogue not be taken place? If the accused are in fact not liable for what they are accused of, why cannot the government accept the challenge, create a discourse to accommodate constructive criticism, carry out unbiased investigations, ensure transparency and clear its name? The continued oppression and deviation from the attempts to achieve transitional justice would only tarnish Sri Lanka further in the face of the international community.

Is it only the government’s responsibility?

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