History has given Sri Lanka a second chance. In 2009, as the conflict drew to its traumatic close, there was a window of opportunity to heal the wounds of Asia’s longest running civil wars. Instead, President Mahinda Rajapakse’s post-war regime was characterized by inflamed Sinhala-Buddhist relations and a breakdown of the rule of law.
Following his unexpected electoral defeat earlier this year, hopes have been raised by the new government’s early promises. Sri Lanka’s transitional journey will be long, however the following justice sector benchmarks should be amongst those considered necessary to enable the credibility of the process.
One of most critical unresolved rule of law issues in Sri Lanka is that of the Constitutional Council, which is mandated to appoint senior judges and important public commissions, but has been in abeyance since 2005. The draft 19th Amendment to the Constitution seeks to re-establish the Council, thereby abolishing an integral part of the executive presidential system set up by Rajapakse, who had given himself control over the appointments of those key bodies. The amendment is a central component of the new Government’s ambitious 100-day reform programme and its effective implementation will be essential in re-laying Sri Lanka’s democratic foundations and safeguarding the independence of institutions that will play a prominent role in its transitional justice process.
The Government must also address truth and justice for victims of the atrocities that occurred both during the armed conflict and afterwards. It has already pledged a domestic investigation, which will require further changes to the legal framework. The Commission of Inquiry Act gives broad executive control over investigations and their outcomes, and it should be amended to ensure independence and transparency. President Sirisena confirmed that UN investigators would not be participating in any inquiry, but that technical assistance would be welcome. The extent and nature of such assistance will be critical in ensuring the credibility of any domestic investigation.
The lack of a comprehensive victim and witness protection mechanism has proved a major impediment and the recent enactment of long-awaited legislation is an important step forward. In order to initiate a meaningful truth-seeking process an independent and credible truth commission should be established with strong powers including to make recommendations for next steps, such as reparations and trials.
The Government has already indicated that it is opposed to international trials and the possibility of ‘hybrid’ tribunals is looking increasingly remote, however it may be open to domestic trials with some international technical support. Whichever process it decides upon, in order to prosecute atrocities according to international law, the penal code will need to be amended to include war crimes and crimes against humanity.
Given the Attorney-General’s department’s inability to effectively investigate or prosecute any serious human rights violations to date, the Government should establish an independent, special prosecutor’s office with a clear mandate and prosecutorial strategy, and provide it with proper resourcing and technical expertise. Effective investigations and successful prosecutions would not only provide justice for victims, but also send out a clear message to the wider public that the Government is serious about ending the culture of impunity which took root under the Rajapakse regime.
The Sirisena Government faces many challenges including political reconciliation, resettlement of IDPs and land restitution, truth-telling and accountability. It must be given time to plan its reforms and this has been recognized by the UN Human Rights Council, which has delayed the publication of the report of its Commission of Inquiry until September. Whilst the Government’s ambitious 100-day reform programme has been broadly welcomed domestically, there is mounting concern from civil society at the opacity of the process and the lack of public consultation.
As the Government seeks to rebuild trust, it will become increasingly important to ensure that it communicates and engages with all sectors of Sri Lankan society on its reform initiatives. This will require time and patience. It will have to meet both the urgent demand for truth and justice that has been denied for too long and the need for incremental reform in a process that is transparent and inclusive. If it can achieve this, then Sri Lanka at last has a genuine opportunity to achieve an enduring, sustainable peace.