Looking for the ‘truth’ beyond Colombo’s ‘comfort zone’

If proposed legislation on a Truth and Reconciliation Commission (TRC) is to emerge within the following months as we are informed, Sri Lanka’s unity Government would do well to employ critical 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

not lend confidence to the integrity of the process.

Direct link to penal accountability

The setting up of a TRC as part of this ‘package’ of transitional justice reforms seems a fait accompli at this stage, despite legitimate apprehensions that it will end up as yet another farcical Commission of Inquiry exercise. 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 a link between these processes and penal accountability. This link must be explicit in the contents of the TRC law.

Furthermore, this must not relate only to an ad hoc accountability mechanism within a limited transitional justice process. Rather, there must be a direct link to a substantively reformed criminal justice process. As observed last week, there is an excellent precedent in that regard. Following years of advocacy, the Commissions of Inquiry Act of 1948 was amended in 2008 to impose an obligation upon the Attorney General (AG), to institute criminal proceedings using findings of a commission of inquiry. The fact that the AG never acted under this section was directly owing to the politicization of the Office. This lack of political will must be turned most spectacularly on its ignoble head.

Consequently, not only must the law be reformed such as the incorporation of command responsibility and the crime of enforced disappearances but state practice must change, in relation to investigations, prosecutions and the judicial process. To be clear, what is meant by this is not simply ensuring the conviction of Rajapaksa loyalists, (one of which we saw this week to universal hurrahs), but bringing about substantive changes in policies and practices under the Penal Code and other specific laws meant to deter gross human rights violations such as the Convention against Torture Act, 1994. We have yet to see this.

Effectively countering ‘Rajapaksa hysteria’