12 September 2018

The Supreme Court’s Special Determination on the Office for Reparations Bill and its implications on Sri Lanka’s Post-War Reparations Process

The Supreme Court this month delivered its determination on the constitutionality of the Office for Reparations Bill which was challenged last month. The Bill was challenged on a number of grounds. The petitioner argued that the appointment process of the Office’ members infringes on the President’s executive powers; that the scheme of the Bill erodes Parliament’s control over public finance; that the Bill deprives the people of their fundamental right to information; and finally that the power given to the Office to determine who ‘aggrieved persons’ are (for the purpose of awarding reparations) is an unconstitutional vesting of judicial power in the Office.

The Supreme Court ultimately found the fourth argument to be the most persuasive. ‘Aggrieved persons’ in terms of the Bill was defined as persons who have suffered a violation of human rights or humanitarian law (as contained in the First, Second, Third and Fourth Geneva Conventions of 1949) in four different contexts (namely in the course of, consequent to, or in the connection with the conflict which took place in the Northern and Eastern Provinces or its aftermaths, in connection with political unrest of civil disturbances, in the course of systemic gross violations of the rights of individuals, groups or communities of people in Sri Lanka or due to an enforced disappearance) . ‘Human Rights’ was defined in the Bill as all fundamental rights recognized by the Constitution and rights contained in Acts of Parliament enacted to give effect to international human rights treaties which have been ratified by Sri Lanka. The Supreme Court reasoned that the Office – in identifying an aggrieved person − would not only have to make a factual inquiry but also interpret and define the scope and ambit of (a) fundamental rights in the Constitution, (b) other human rights in treaties that have been incorporated into Sri Lankan law and (c) violations under international humanitarian law. The crux of the Supreme Court’s reasoning was that the parallel task of interpreting a complex body of law, in the present circumstances, amounts to a judicial function. In light of this, the Supreme Court recommends removing references to rights violations altogether and adopting the following definition of aggrieved persons: persons who have suffered damage as a result of loss of life or damage to their property or persons in the four contexts listed above.

However, delinking reparations from rights violations would be problematic from a transitional justice perspective. The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law insist that any reparation program should be implemented on the basis that victims are owed reparations as rights holders whose rights have been violated. Awarding reparations on this premise also offers an avenue for the State to acknowledge that rights were violated in the first place. Dispensing with this acknowledgment takes away from one of the essential functions of reparations and is problematic as such. While an official acknowledgement of rights violations need not come from the Office of Reparations, it must nonetheless take place to ensure that reparations are meaningful.