In this podcast, Niran Anketell (Legal Adviser, SACLS) and Aruni Jayakody (Senior Researcher, SACLS) discuss the oral update of the High Commissioner on Human Rights on transitional justice and constitutional reform. The discussion touches on enforcing Human Rights treaties and obligations under Sri Lankan law, strengthening civilian oversight over the security sector and reform of the justice mechanisms.

Published in Audio

PART 1: Introduction: Background and Rationale for an OMP

The change of government in January 2015 brought to the fore the need for a discrete body to deal with the tens of thousands of disappearances throughout Sri Lanka‟s recent history. The Paranagama Commission of Inquiry which had been established by the previous government lacked credibility, and was not expected to bring closure to victims. On the contrary, there were serious fears of the retraumatization of victims through another failed mechanism that was not sensitive to their rights or needs. The Report of the OHCHR Investigation on Sri Lanka (OISL) released on 16th September 2016 recommended that the government “dispense with the current Presidential Commission on Missing Persons and transfer its cases to a credible and independent institution developed in consultation with families of the disappeared.” Just a few weeks prior to the release of the OISL Report, Foreign Minister Mangala Samaraweera‟s speech to the UN Human Rights Council announced his government‟s intent to establish an Office of Missing Persons, “based on the principle of the families‟ right to know, to be set up by statute with expertise from the ICRC, and in line with internationally accepted standards.” Operative Paragraph 4 of the UN Human Rights Council resolution 30/1 which Sri Lanka co-sponsored thereafter incorporated this commitment, explicitly referring to the Office of Missing Persons among other promised mechanisms.

It is this context that the OMP Bill was gazetted and is expected to be presented shortly to Parliament. While there are some concerns regarding the process through which the OMP Bill was gazetted, this paper is concerned primarily with its content. The paper concludes that while the Bill is fundamentally sound—with the exception of its strategy to incentivize perpetrator witnesses—there are several technical revisions necessary to ensure the smooth functioning of the OMP. Some of these are critical, and it is essential that they be undertaken at the Committee stage in Parliament before the draft enters into law.

PART 2: Establishment

Part 1 of the Bill deals with the form and nature of the Office. There are a few key features concerning the nature of the envisaged OMP. Clause 3 of the Bill envisages an OMP with legal personality and one that would be based in Colombo, with provision for regional offices as necessary. Notably, if enacted, the Bill envisages a permanent body in the sense that it would only cease to exist in the event Parliament by legislation amends or repeals the OMP Act with a view to terminating the OMP‟s existence. This represents a significant improvement on prior Commissions to investigate missing persons, which served effectively at the pleasure of the President, who was at liberty to terminate or extend their respective mandates at will.

Section 4 deals with composition. The OMP is to consist of seven members appointed by the President on the recommendation of the Constitutional Council. In this regard, the mode of appointment to the OMP is similar to the mode of appointment of the Chairman and members of the Election Commission, Public Service Commission, National Police Commission, Audit Service Commission, Human Rights Commission, Commission to Investigate Allegations of Bribery or Corruption, Finance Commission, Delimitation Commission, and National Procurement Commission.1 Clause 4(2) provides that in making recommendations, the Constitutional Council shall have “due regard” to ensuring the composition of the OMP reflects the pluralistic nature of Sri Lankan society and that the members shall be persons with “previous experience in fact finding or investigation, human rights law, international humanitarian law, humanitarian response, or possess other qualifications relevant to the carrying out of the functions of the OMP.” These provisions are useful hortatory guidelines, but they do not legally bind the Constitutional Council or the President in any way. Similarly, the question arises as to whether the President is bound by the recommendations of the Constitutional Council. The plain text of the Bill suggests a degree of ambiguity. Clause 5 provides that the President “shall appoint, within fourteen days of receiving the recommendations of the Constitutional Council for such appointments, the Chairman and Members of the OMP.” The use of the imperative word “shall” suggests the President has no discretion with respect to whether or not to appoint the Members and Chairman, but it is unclear if this imperative requirement attaches to the specific individuals recommended by the Constitutional Council. Moreover, the word “recommendation” stands in contrast to the word “advice” when used in contemporary constitutional parlance. Where “advice” suggests the binding nature of the duty of the formal decision maker to act in accordance with the decision of an actual decision maker, “recommendations” are commonly understood not to give rise to a binding obligation to act in accordance with the recommendation. In contrast to the OMP Bill, Article 41B(1) of the Constitution clearly stipulates that “[n]o person shall be appointed by the President as the Chairman or a member of any of the Commissions specified in the Schedule to this Article, except on a recommendation of the Council.” The absence of an analogous provision with respect to the OMP Bill is therefore worrisome, and must incorporated into the Bill at the committee stage in Parliament if the mode of appointment of OMP members is to be truly independent of Presidential fiat.

In the event the President fails to make an appointment within two weeks, however, Clause 5 provides that the persons recommended shall be deemed to have been appointed.

Clause 5(2) provides that the Chairman of the Office shall also be the Chief Executive Officer. This suggests that the Chairman of the OMP will be a full time position, with the distinct likelihood that the other positions will not. The absence of provision for members to function as full time officers risks a weakened and dysfunctional OMP. Many independent Commissions in Sri Lanka are undermined by the absence of provision for Commissioners to function on a full time basis, since the general norm appears to be that while Chairmen hold office full time and receive commensurate remuneration, the other members are deemed to function in a role similar to non-executive board members, and thus receive only nominal remuneration. While there is no bar to full time employment by OMP members in the OMP Bill, it is likely that in determining salaries, Parliament would adopt the current practice with respect to existing Commissions. Thus, it would be useful if amendments are effected to provide for at least a few of the members to function on a full time basis. Failure to do so could cripple the OMP, or in the alternative, effectively vest disproportionate executive power in a Chairman who is also the Chief Executive Officer.

The other provisions relating to the Establishment of the OMP deal with modes or removal, term limits for members, meetings and quorum.

Part III of the Bill also deals with the structure of the OMP. Clause 16 contemplates a Secretariat responsible for administration that is staffed by those appointed by the OMP. In addition, the Bill contemplates two auxiliary units: a Tracing Unit and a Victim and Witness Protection Division within the OMP.

Tracing Unit

The Tracing Unit is in effect an investigative unit, and will be headed by an Executive Officer appointed by the OMP and shall include “compete, experienced and qualified investigators including those with relevant technical and forensic expertise”.

Victim and Witness Protection

The Victim and Witness Protection Division is likewise to be headed by an Executive Officer. Clause 18 (3) mandates the Division to take “all appropriate measures” to ensure the protection of victims and witnesses engaging with the OMP. The Division is further mandated to provide administrative services and welfare services including psychosocial support to victims, witnesses and relatives. Further, it shall inform relatives of the use or potential use of information provide, and coordinate with other law enforcement agencies where it deems necessary. In this regard, a central question is the nexus between the Victim and Witness Protection Division of the OMP and the Victim and Witness Protection Authority and Division established under the Assistance to and Protection of Victims of Crime and Witnesses Act No. 4 of 2015. The interpretation clause in Act No. 4 of 2015 limits the definition of witnesses to witnesses before a court or Commission of Inquiry, and thus excludes the OMP. This is a critical issue, and must be remedied by the OMP Bill. However, the proviso to Clause 13(1)(g) of the OMP Bill stipulates that the provisions of the OMP Bill shall not prejudice the rights of victims and witnesses to apply for appropriate orders in terms of Act No. 4 of 2015. On its face therefore, there is no coordination envisaged between the Authority and Division established under the Act—which is itself deeply problematic and in need of revision2—and the OMP.

Finances

Clause 19 provides that the State shall provide the OMP with adequate funds to enable it to discharge its functions. These funds are to be charged on the Consolidated Fund. The salaries of the members are to be determined by Parliament. Significantly however, the OMP is given the power by Clause 21 to “raise funds in order to achieve its mandate, including but not limited to obtaining grants, gifts or endowments from the national or international community.” The accounts of the OMP are to be audited by the Auditor General.

Judicial Review

Clause 21 provides that the OMP shall have immunity from suit, other than in respect of the writ jurisdiction of the Court of Appeal and the fundamental rights jurisdiction of the Supreme Court. However, all applications for writs in terms of Article 140 of the Constitution are to be handled by the Supreme Court, with the effect of eliminating appeals in respect of such cases. Further, there is protection from civil or criminal suits for good faith acts of a member, servant or officer of the OMP in that capacity; the publication of OMP reports in good faith; and the provision of evidence or documentation to the OMP in good faith.

PART 3: Mandate

The OMP has a six-part mandate, outlined in Clause 10 of the Bill. The primary mandate appears to be that of searching for and tracing missing persons and identifying appropriate mechanisms for the same, and to clarify the circumstances in which such persons went missing. Other aspects of the OMP mandate include making recommendations to relevant authorities to address the incidence of missing persons, protecting the interests of missing persons and their relatives, identifying avenues of redress available to missing persons and their relatives and informing them of same, and collating data related to missing persons and establish a database. Clause 10(1)(f) is an omnibus provision mandating the OMP “to do all such other necessary things to that may become necessary to achieve the objectives under the Act.”

Clause 10(2) clarifies the absence of a temporal mandate: the OMP‟s mandate extend to missing persons regardless of the period in which that person went missing.

The definition of “missing person” is therefore the key element in circumscribing the OMP‟s mandate. Clause 27 defines “missing person” as a person whose fate or whereabouts are reasonably believed to be unknown and is reasonably believed to be unaccounted for and missing in three specific contexts. The three contexts are:

  1. The conflict which took place in the Northern or Eastern Provinces or its aftermath, or the person is a member of the armed forces or police who is identified as “missing in action”;
  2. Political unrest or civil disturbances; and
  3. An enforced disappearance as defined in the International Convention on Protection of All Persons from Enforced Disappearances.

With respect to item 1, it is notable that as long as the person went missing “in the course of, consequent to, or in connection with” with the conflict which took place in the Northern or Eastern Provinces, that person would fall within the OMPs mandate. This would be the case even if the person went missing outside the North and East, provided there is a sufficient nexus between the person going missing and the conflict.

This broad mandate is to be welcomed, but it is likely that in many cases of persons going missing outside the North and East, any nexus to the conflict would only be discovered at a much later stage of a potential investigation. Likewise, in the case of enforced disappearances, a determination that a person was forcibly disappeared is only likely to be made after substantial investigations are conducted. This highlights a major loophole in the design of the OMP as envisaged: while the OMP‟s mandate is crafted broadly, evidence of any person falling within its mandate is likely to be uncovered only at a subsequent stage of the investigation, and is unlikely to be available at the point at which a complaint to the OMP is made. In other words, in the large majority of cases, complaints would be made without sufficient proof that the case falls within the OMP mandate as defined. The technical problem this poses is that the OMP could reject a complaint on the basis that a nexus to the three specified contexts is not demonstrated, even though such information could only be clarified through an investigation which the OMP is ostensibly designed to carry out. In this case, the OMP could—in terms of Clause 12(h) refer such cases to the police or other law enforcement authority after due consultation with the complainant. However, Clause 13(1)(a)(i) mandates the OMP to issue an interim report to the relative where its investigations provide sufficient material to conclude that a person to whom a complaint relates is in fact a “missing person”. Thus, the Bill clearly contemplates investigations by the OMP to determine whether a person falls within the mandate of the OMP. Consequently, while it is inconceivable that reasonable OMP members would flatly reject complaints on the basis that they do not sufficiently justify inclusion within the OMP‟s mandate, it is essential that the law prevents such abuses, and is designed in a manner consistent with the expectation of the duties the OMP is expected to perform. It is therefore preferable if an amendment is introduced by which the OMP is prohibited from rejecting or refusing to investigate a complaint on the basis that it does not fall within its mandate, unless the OMP has investigated the case and provides reasons to support a belief that the case falls outside its mandate.

PART 4: Functions

Clause 13 delineates the functions or duties of the OMP. Clause 13 relates to the obligation of the OMP to provide reports—interim and final—to the relatives for the purposes of obtaining a Certificate of Absence or Certificate of Death as relevant from the Registrar General. Where the OMP has sufficient reason to conclude that a person is in fact a missing person, the OMP is required to provide the relatives with an interim report which could be used to obtain a Certificate of Absence. After investigations are concluded, the OMP is required to issue a final report to a relative to enable the Registrar General to issue a Certificate of Absence or a Certificate of Death. Moreover, the reports leading to the issuance of certificates may be amended where further investigations reveal they were issued erroneously, with the relevant relative and Registrar General being noticed. 

Clause 13(1)(b) mandates the OMP to provide information relating to the whereabouts of a missing person if the person is found to be alive. However, this is to be undertaken “subject to the consent of the person found to be alive.” While this caveat would not be objectionable in cases in which the person found to be alive is at liberty to express consent without fear or threat, it would be wholly problematic in cases where the person found to be alive is in a position in which he cannot freely express consent. For instance, if the person concerned was initially disappeared but thereafter in a working arrangement with armed actors within a coercive environment, it would meaningless to rely on his consent when such consent is not freely exercised. Thus, the Bill must be amended to provide for these types of situations, by clearly stipulating that the lack of consent of the person found to be alive cannot militate against informing family members of his whereabouts where he was at any point a victim of enforced disappearance or where the person is not capable of expressing consent, or is subject to the reasonable apprehension of fear or threat in expressing her views to the OMP. The failure to provide for this sort of eventuality—which is commonly alleged in post-armed conflict situations—is a significant failing of the OMP Bill. 

Clause 13(1)(c) relates to the duty of the OMP to provide information as to the status of an ongoing investigation to the family, unless the OMP is of the view that the provision of such information would hinder an ongoing investigation or that it is not in the best interests of the missing person. However, the Bill does not stipulate the frequency with which the OMP must provide such information and the extent and manner in which such information pertaining to the status ought to be shared. It would therefore be appropriate and desirable for the OMP to formulate formal rules in this regard in terms of Clause 11(b) and (c).

Clause 13(1)(d) captures the central obligation of the OMP to provide answers regarding the fate and circumstances of the missing person to the relatives at the conclusion of the investigation. As noted later in this paper, this duty is subject to the requirements of confidentiality stipulated in Clause 15(1). In terms of the scope of the duty to provide answers, the OMP is mandated to inform the relatives and/or complainant of the “circumstances in which such person went missing and his fate” in cases where the person is deceased or his whereabouts are unknown. In cases where the person is alive and his whereabouts are known, the OMP is to inform relatives of the “circumstances in which such person went missing”, but subject to the consent requirement of Clause 13(1)(b).

A few comments may be appropriate in reflecting on Clause 13(1)(d). First, the Bill contemplates the “conclusion of an investigation” even in cases where the whereabouts of a person are unknown. This phrasing evinces the question as to when an investigation is to be deemed concluded. Since the OMP is designed to provide answers to victims, and since it is desirable that the remains of deceased victims be returned to their families, it follows that an investigation cannot be closed until the fate of the missing person is clarified, the circumstances surrounding his going missing ascertained, and his remains—if available— returned to the family. However, by contemplating the closure of investigations even before the whereabouts of the person are known, the OMP Bill partially answers an important question it otherwise leaves open. In reality, an open investigation may not necessarily mean the active pursuit of the case by the OMP, given the need for rationalization of what are likely to be limited resources relative to the immense need. However, it is essential that the OMP is not seen to be closing an investigation and forcing families to accept closure when in fact questions that the OMP is mandated to answer remain unanswered.

Second, the Bill does not clarify the manner and degree to which information would be shared with the relatives. It is desirable that families be provided answers in a sensitive manner given the emotional trauma likely to have been already caused, and caused on occasion of the receipt of information relating to their relatives. However, it is also essential that the relevant information be provided in writing as an official acknowledgement of the state. In this regard, the OMP should formulate appropriate rules. Further, and as we discuss later in this paper, it is unclear what effect the confidentiality requirement would affect families‟ right to know.

The other functions of the OMP relate to: the provision of administrative assistance, welfare services and psycho-social support to victims; recommendations with respect to reparations; developing a system of victim and witness protection; creating a database including particulars of all missing persons; informing victims, relatives, witnesses and other information of their right to report serious crimes to law enforcement and prosecutorial authorities; conduct public advocacy; and making recommendations on a range of policy and legal issues pertaining to missing persons.

PART 5: Powers

The powers of the OMP are specified in Clauses 11 and 12 of the Bill and are classified as “general powers” and “investigative powers”. The former primarily relate to powers concerning the establishment of the OMP, and are significant.

General Powers

Clause 11(a) refers to the general power to enter into agreements with any person or organization, whether local or foreign, including agreements to secure information, maintain confidentiality of information, obtain technical support, training and collaboration and establish databases. The phrasing of this provision appears designed to cover potential agreements between the OMP and the International Committee of the Red Cross (ICRC) and other international agencies. The ICRC has been involved in the design process with respect to the OMP and appears to have in its possession material potentially useful to the OMP‟s mandate. However, the ICRC does require some form of confidentiality in that it has a policy of not providing information if there is a risk that such information would be used for criminal investigations and prosecutions. Moreover, the ICRC has a history of signing memoranda of understanding with authorities with whom it shares its information. Thus, this Clause appears to contemplate the type of agreements required to ensure cooperation between the ICRC and the OMP. However, the provision could also permit a wider range of agreements. In particular the phrase “obtaining technical support and training (forensic or otherwise) and collaboration” would likely cover consultancy agreements required to give effect to the government‟s commitment in Human Rights Council Resolution 30/1 passed in October 2015 that Sri Lanka‟s transitional justice mechanisms would have the “freedom to obtain assistance, both financial, material and technical from international partners including the OHCHR”.3

Further general powers of the OMP include the power to make rules governing the OMP, appoint and dismiss staff and consultants, seek secondment of public officers to the OMP, and establish committees, units and divisions. It is notable that the OMP has the power to delegate powers and functions to those Committees as necessary. In this regard, the OMP appears to have the flexibility necessary to establish an oversight committee comprising families of those missing and the disappeared in light of these families‟ consistent demand that they be allowed to play such a role.

Investigative Powers

With respect to investigative powers, the OMP appears to have more extensive powers than the quite significant powers already vested in Commissions of Inquiry (CoIs) through section 7(1) of the CoI Act No. 17 of 1948, as amended. These powers are: 

To receive from any person or organization complaints relating to missing persons - Clause 12(a)

This is an incidental power to the OMP‟s establishment. Notably however, complaints regarding a missing person may be made by any person, and not just a relative. This would enable complaints to be made by non-governmental organizations or others who have previously collated information on behalf of relatives who may be unaware of or unable to access the OMP. Complaints may also be initiated by the ICRC on the basis of information available to it.

To investigate the whereabouts and circumstances of disappearances of a missing person pursuant to a complaint to the OMP or on the basis of information received from previous CoIs – Clause 12 (b)

This is also an incidental power to the OMP‟s establishment. The OMP was initially mooted as a more credible alternative to the Paranagama CoI. However, the Paranagama CoI and other CoIs have collated mostly biographical and other information from a very large number of relatives. The archives of these CoIs—if available—would greatly add value to the work of the OMP.

To take all necessary steps to investigate cases of missing persons, including but not limited to those specifically enumerated – Clause 12 (c)

This omnibus clause enables the OMP to exercise a wide discretion in determining the limits of its own investigative powers. The phrase “all necessary steps” coupled with the clause enabling the OMP to exercise powers beyond those enumerated elsewhere contemplates robust investigations if the OMP exhibits willingness and capacity. 

To procure and receive statements, written or oral, and to examine persons as witnesses, including through the use of video conferencing facilities – Clause 12 (c)(i)

This clause is a near identical reformulation of the corresponding provision in the CoI Act, except that the OMP Bill makes specific reference to the use of video conferencing facilities which were initially used and later discontinued in the course of the Udalagama CoI. The OMP Bill puts the matter beyond doubt that using video conferencing to obtain statements is permissible. Notably however, unlike the CoI Act, the OMP Bill does not grant the Office the explicit right to administer an oath to witnesses before obtaining their testimony, with the consequence that a witness who deliberately lies to the OMP would not be perjuring himself.

To summon any person present or residing in Sri Lanka to be present before the OMP to provide a statement or produce any document or other thing in his possession – Clause 12(c)(ii)

An identical provision is made in the CoI Act.

To admit any statement or material, oral or written, which might be inadmissible in civil or criminal proceedings – Clause 12(c)(iii)

An identical provision is made in the CoI Act. The provision does not contribute any significant powers, except to put beyond doubt the admissibility to the OMP of material such as hearsay evidence and other evidence not admissible in courts of law.

To establish a process to accept confidential information or information in camera – Clause 12(c)(iv)

This is an incidental power to the manner in which the OMP is expected to function. Unlike a traditional CoI, where hearings are generally conducted in public in the form of a formal inquiry, the OMP is likely to deal with complainants on an individualized basis. The default mode for receiving statements is likely to be in camera statements taken by one or more investigative personnel from the Tracing Unit.

However, the Bill uses the term “confidential information” in a number of instances. As we discuss in greater detail in the section on “Linkages and Confidentiality”, the precise scope of this confidentiality is left undefined, and is subject to interpretation.

To establish a process to accept information on the condition of confidentiality – Clause 12(c)(v)

Once again, the use of the word “confidentiality” appears, without a precise definition of its implications.

To apply to the relevant Magistrate for an order to excavate and/or exhume, and to act as an observer at such excavation/exhumations and “other proceedings, pursuant to same” – Clause 12(d)

This is a significant power and one that was unavailable to previous CoIs. By virtue of this power, the OMP would effectively be in a position to apply to a Magistrate to take action in terms of Part V of the Criminal Procedure Code.  The referable section of the Code of Criminal Procedure appears to be section 124, which permits the Magistrate to “assist the conduct of an investigation by making and issuing appropriate orders and processes of court…” However, this section appears to apply only to investigations that have been already initiated before the Magistrate by the regular criminal justice process through police investigations. Thus, absent an explicit power vested in the OMP to report and/or forward a case to the Magistrate and thereby to open an investigation, it is doubtful if the Magistrate would be within jurisdiction to issue orders under section 124 where there is no pending investigation before the Magistrate. While the Bill appears to contemplate that excavation and exhumation orders would be followed by regular Magisterial criminal investigations, (demonstrated by the reference to “other proceedings” pursuant to excavation and exhumation orders) it does not legally locate the power of the OMP to apply to the Magistrate within the scope of Part V of the Criminal Procedure Code, and would if unaddressed by Parliament at the Committee stage, potentially lead to technical difficulties.

One way of circumventing these difficulties is for the OMP to report the existence of a grave (and thereby a crime) to the police, and for applications to the Magistrate for appropriate orders to be made subsequent to the police reporting the same to the Magistrate.

However, the OMP is not explicitly vested with the power to report the presumed existence of mass graves to the police. The only analogous power is in Clause 12(i) in terms of which the OMP may report a situation to the relevant law enforcement of prosecuting authority where it appears to the OMP that an offence has been committed. However, the OMP has the discretion to report such offences after consultations with the relatives as it deems fit, “in due consideration of the best interests of the victims, relatives and society…” Clause 12(i) however was clearly designed for situations in which the OMP has clarified, in full or in part, the fate of a missing person and discovered the existence of a crime—evidenced by the fact that it contemplates consultations with the relatives of the specific missing person in respect of whom the crime was committed— and not a situation in which the OMP discovers a mass grave.

There is a further lack of clarity in the manner in which Clause 12(d) is framed. The OMP is to act as an observer in proceedings related to exhumation and excavation of suspected grave sites. However, there is no explicit provision enabling the OMP to play a more technical role in conducting forensic investigations with respect to the graves, despite the prospect that it will, in all probability, be in possession of such competencies. In limiting the OMP‟s role to that of a mere observer, the Bill potentially excludes the OMP from fulfilling a role for which it was manifestly designed. While it is possible that the Magistrate could exercise powers available to him under section 124 to request the OMP to conduct forensic and other functions as necessary, the clarity of the Bill would be greatly assisted by making explicit mention of the Magistrate‟s ability to make such requests of the OMP.

To request assistance necessary for the achieving of its mandate from any State, governmental, provincial, or local authority of agency or its officers, including requests for information and the production of documents. Such functionaries “shall forthwith render such assistance”. – Clause 12(e)

This provision appears to strengthen and clarify the powers of the OMP and corresponding duties of those from whom it requests assistance. In any event, the OMP is vested in terms of Clause 12(c)(ii) to summon any person resident in Sri Lanka to provide a statement or produce a document.

To authorize officers to enter, without warrant, and investigate at any time any place of detention, police station, prison or other place in which in a person is suspected to be detained by a State functionary or suspected of having been previously detained, and to examine, make copies of extract from, seize and retain any object deemed necessary for its investigations – Clause 12(f)

The power conferred on the OMP through this Clause is extensive, and is evidently contemplated in respect of places of detention—authorized or unauthorized—in which missing persons are likely to be in detention or likely to have in the past been in detention.

To make application to a Magistrate for a search warrant to enable OMP officers or police officers to search premises suspected to contain evidence relevant to an investigation of the OMP; and to examine, make copies of, extract from, seize and retain any object deemed necessary for its investigations – Clause 12(g)

This power to apply for a warrant is in respect of places where evidence relating to investigations is potentially held, unlike Clause 12(f) which applies to places where persons were previously or are presently being detained. Together with Clause 12(f), Clause 12(g) renders the OMP an extraordinarily powerful investigative body, which is to be welcomed.

To report to the relevant law enforcement or prosecuting authority information relating to the missing person’s biographical information and place in which the missing person was last seen where it appears to the OMP that an offence has been committed. This power to be exercised only after consultation with relatives as it deems fit, “in due consideration of the best interests of the victims, relatives and society…”

This Clause is examined in detail in the section on “Linkages and Confidentiality”.

Offences

Clause 23 criminalizes a number of acts so as to punish acts which prevent the due functioning of the OMP. These acts include failing to respond to summons, refusing without cause to answer questions posed by the OMP, refusing to comply with a requirement of a notice or written order or direction of the OMP, refusing to produce a document in response to a summons, obstructing an officer authorized by the Act to do a thing, knowingly hindering or obstructing the OMP, attempting to improperly influence or interfere with the OMP, threatening or intimidating those cooperating or intending to cooperate with the OMP, disclosing confidential information, and without reasonable excuse failing to comply with a order of the OMP. Trial and punishment is to be by the Court of Appeal for contempt of the OMP as though the offence were that of contempt committed against the Court of Appeal, upon a report by the OMP to the Court.

PART 6: Linkages and Confidentiality

The OMP is designed explicitly for the purpose of “searching and tracing” missing persons (Long Title) in recognition that “relatives of missing persons are entitled to know the circumstances in which such persons went missing, and the fate and whereabouts of such missing persons” (Preamble). While the government has committed to an accountability mechanism to deal with prosecutions, government functionaries have been keen to point out that the OMP is not designed for prosecutions, but “will in no way impede victims‟ right to justice”.

The OMP does not explicitly impede victims‟ right to justice. It does not, for instance, establish a mechanism for amnesty by which perpetrators would be excluded from criminal prosecution. Further, by investigating enforced disappearances and ascertaining the fate and whereabouts of victims, the OMP could potentially build a very powerful public case for prosecutions, and further contribute to trials by identifying mass graves for exhumation and contributing its expertise to criminal investigations. However, the details concerning the linkages between the OMP and a potential accountability mechanism require analysis. While much of the praxis surrounding the interaction between the OMP and a potential special accountability mechanism would be influenced by the relationships between the individuals animating both mechanisms, the Bill contains a few provisions that provide the parameters for this interaction.

Clause 12(i) provides that where it appears to the OMP that an offence has been committed and that such offence warrants investigation, it may “after consultation with the relatives of the missing person as it deems fit”, “in due consideration of the best interests of the victims, relatives and society”, report the same to the relevant law enforcement or prosecuting authority. The use of the phrase “prosecuting authority” appears to contemplate a special prosecutor to deal with, among others, disappearance related crimes. This reporting is to merely transmit biographical information of the victim and the place in which the missing person was last seen. This provision is unduly restrictive on the OMP. First, while consultations with victims are desirable with respect to any decision, the decision concerning the transmission of information to investigating or prosecuting authorities does not require specific consultations. Second, there is no conceivable reason as to why the OMP should have the discretion whether or not to report an offence. Further, the grounds on which they are to exercise this discretion are exceedingly broad and capable of abuse. Finally, since confidential information would in any event be unavailable to a court, such information could be removed from a redacted file concerning the investigation that is sent to the relevant investigators and prosecutors. The current scheme would require investigators and prosecutors to duplicate the work of the OMP in sourcing non-confidential information, and is therefore flawed.

Clause 13(2) dealing with the functions of the OMP stipulates that “the findings of the OMP shall not give rise to any criminal or civil liability”. This provision has caused concern among some sections of the public, who fear it extinguishes or reduces the prospects for accountability. A plain reading of the provision suggests, however, that it only reiterates a reality that would otherwise be accepted, that the findings of the OMP pursuant to an investigation would not, of themselves, be sufficient to ground civil or criminal liability of a potential perpetrator. Thus, the provision appears to be redundant and was likely included in the Bill to assuage the fears of a group or groups of suspected perpetrators. Its inclusion does not add any legal value to the text of the Bill, and thus should have been avoided.

Another potential concern is the usage of the concept of confidentiality in the Bill. As noted previously in this paper, Clause 12(c)(iv) empowers the OMP to establish a process to accept confidential information or information in camera for the purpose of victim or witness security, while Clause 12(c)(v) empowers the body to establish a process to accept information on the basis of confidentiality. Clause 11(a) which empowers the OMP to enter into agreements envisages one such type of agreements to be in respect of “confidentiality of information”. The enforcement of this confidentiality requirement is strengthened through the visitation of contempt sanctions on those who “disclose any confidential information in contravention of the provisions” of the Bill, in terms of Clause 24.

Clause 15 deals specifically with the confidentiality of information and provides that the OMP shall preserve and aid in preserving confidentiality with regard to matters communicated to them in confidence. Further, it provides that no OMP functionary shall be required to produce, whether in court or otherwise, any material communicated to him in confidence in the performance of his duties, except as required for the purposes of giving effect to the provision of the Act. Like Clause 12(c)(v), Clause 15 also draws an implicit distinction between information provided on the basis of confidentiality, and information that is provided without such an understanding. It thus stands to reason that the OMP could be compelled by a court of law or other body having the power to compel and/or summon the OMP to produce all other material and information available to the OMP. This may include material obtained without an understanding of confidentiality, or material generated by the OMP directly through forensic or other investigations and analysis. This material could potentially provide a very rich body of evidentiary material to a judicial process. However, as invariably is the case with confidentiality requirements, controversies are likely to arise as to what information is confidential, and what is not. The Bill is unclear if the confidentiality requirement only attaches to the identity of those who submit the information, or to the information itself. It is thus critical that the OMP formulate precise and specific rules concerning the way in which it deals with the issue of confidentiality.

The SCRM leaflet on the OMP proposals states that the guarantee of protection for confidential information is offered “in the hope of eliciting useful information”. The question of how to elicit information from potential perpetrators is a central one, but as we point out in a recent SACLS Position Paper, the simple grant of confidentiality is unlikely to provide perpetrator-witnesses a sufficient incentive or protection to disclose the truth to the OMP. In fact, since such truth-telling increases the likelihood of the discovery of crimes in which they were involved (and thus increase the chance of prosecutions) perpetrators have an interest in preventing effective OMP investigations.5

Another reason motivating the requirement of confidentiality is, as noted previously, the potential role of the ICRC in contributing information to the OMP. What is clear is that the ICRC would—if it decides to share information with the OMP—require a guarantee that information provided by it would not be used in criminal investigations or prosecutions. In these contexts, “confidentiality” would be synonymous with the exclusion of such evidence from prosecutors and investigators. However, the text is unclear as to whether the scope of “confidentiality” is broader, with the result that the OMP would be left to define the word itself. However, there are significant dangers here.

An expansive definition of confidentiality could seriously undermine victims‟ right to truth, by for instance, withholding certain details gathered by the OMP through a confidential statement from the relatives of the missing person. Moreover, in the most expansive interpretation of „confidentiality‟ possible, information obtained on the basis of follow-up investigations pursuant to a confidential statement could also be excluded from the material shared with the relatives. This kind of eventuality would be plainly unacceptable. Yet, Clause 13(1)(d) in terms of which the OMP has a duty to inform the family of the fate and circumstances in which the person went missing or was deceased, applies “subject to the provisions of section 15(1)” which relate to confidentiality. This is a serious problem, unless there is clarity that only the identity of the confidential witness cannot be disclosed. Without such clarity, there is a risk of relatives being denied information regarding the fate and circumstances of the person going missing or being deceased. This eventuality would be utterly objectionable as a matter of victims‟ rights or common sense. The purpose of any concession to witnesses by providing confidential cover to their statements is to ensure that relatives are entitled to know as much truth as could possibly be known, and to provide a mechanism whereby those who would not otherwise come forward to share information could do so without fear of repercussions. However, the purpose of providing such concessions to witnesses would be frustrated if relatives are not provided the information obtained confidentially.

It is therefore important that Parliament clarifies the scope of the confidentiality requirements set out in the Bill.

Conclusion

The OMP Bill gazetted by order of the Prime Minister on 27 May 2016 signifies an important Transitional Justice development in Sri Lanka. The first of four mechanisms promised by the government, the OMP seeks to respond to the unrelenting demand for the truth by relatives of the missing and forcibly disappeared. The OMP draft legislation, as gazetted, appears to be fundamentally sound—barring its provisions on linkages with prosecutions and the ambit of the confidentiality granted to some statements it seeks to protect—and would, if implemented genuinely, offer a meaningful chance of closure and answers for at least some relatives of the missing and forcibly disappeared. However, the Bill does raise some technical issues, which if unresolved, could potentially stymie the implementation of its provisions and deny victims‟ their rights. Further, past experience had demonstrated that even minor amendments to legislation are very difficult to effect after passage through Parliament into law. These issues must therefore be remedied at the Committee stage in Parliament.

We therefore recommend that Parliament effect the following revisions to the Bill: 

  1. Insert a provision similar to Article 41B(1) of the Constitution to provide that no person shall be appointed by the President as the Chairman or a member of the OMP, except on a recommendation of the Council.
  2. Provide that at least three of the members of the OMP would function as deputy CEOs or any other relevant executive capacity.
  3. Amend-directly, or by implication by making provision in the OMP Bill— the Victim and Witness Protection Act No. 4 of 2015 by providing that for the purposes of such Act, the OMP would be deemed to be a Commission of Inquiry.
  4. Provide, for avoidance of doubt, that the OMP shall not reject or refuse to investigate a complaint on the basis that it does not fall within its mandate, unless the OMP has investigated the case and provides reasons to support a belief that the case falls outside its mandate.
  5. In respect of Clause 13(1)(b) and Clause 13(1)(d)(ii), provide that the whereabouts of a person shall not be withheld from the relatives where the person found to be alive was at any point previously subject to an enforced disappearance or where the person is not capable of expressing consent, or is subject to the reasonable apprehension of fear or threat in expressing his views to the OMP. 
  6. Expressly provide that no investigation into a missing person shall be considered closed until the fate of the person and circumstances in which the person went missing are clarified, and in cases where the missing person is deceased, their remains returned to the family.
  7. Clarify the scope of confidentiality with respect to information given to the families of the missing. In terms of Clause 13(1)(d), provide that only information regarding the identity of the person providing the information who explicitly requested confidentiality could be withheld from the family, and not the information itself.
  8. Delete Clause 13(2) which is redundant.
  9. Make explicit provision enabling a Magistrate to open an investigation under Chapter V of the Criminal Procedure Code upon a request for exhumation and/or excavation of a suspected grave site by the OMP. 
  10. Make explicit provision enabling the Magistrate to make necessary orders requesting the OMP to undertake and/or assist any investigative function pursuant to proceedings initiated by an OMP request to the Magistrate for an order of exhumation/excavation.
  11. Amend Clause 12(i) and require that the OMP transmits a copy of its case files (with confidential information redacted) to the relevant prosecutor and/or investigating authority concerning a missing person/persons, where it appears to the Office that an offence has been committed.
  12. Rethink the government‟s approach to incentivizing witnesses to come forward, in particular by considering the involvement of a prosecutor in the OMP‟s investigations. 

Endnotes

1 Article 41B of the Constitution as amended.

2 For a comprehensive critique of existing witness and victim protection legislation, and analysis of the necessary reform, see Aruni Jayakody, “Witness and Victim Protection: The Need for Further Reform”, South Asian Centre for Legal Studies, September 2015. Accessed at: https://drive.google.com/file/d/0B8Ja0Q7ULo0c3FVcmJLb3pNTEE/view 

 3 Operative Paragraph 4, Resolution 30/1, “Promoting reconciliation, accountability and human rights in Sri Lanka”. 1 October 2015. UN.Doc.A/HRC/30/1.

4 Leaflet titled “Proposals for the Office of Missing Persons” released by the Secretariat for Coordinating Missing Persons (SCRM) on or around 13 May 2016. 

5 Dr. Isabelle Lassee, SACLS Position Paper, “Criminal and Humanitarian Investigations into the Fate of Missing Persons: A False Dichotomy”, May 2016. Accessed at: https://drive.google.com/file/d/0B8_6FPyGGn9WUJNRE5fT2FSLWM/view 

 

Published in Reports

இலங்கை தேசிய ஒற்றுமைக்கும் நல்லுறவுக்குமான ஜனாதிபதி அலுவலகத்தின் ஒரு அங்கத்தவரான ராம் மாணிக்கலிங்கம் அண்மையில் ஒரு கட்டுரையிலே தமிழரின் சுயாட்சி பற்றிய விடயம் ஒரு புதிய அரசியலமைப்புச் சட்டத்தினுள் முறைப்படுத்தப்படும் வரைக்கும், திரளான குற்றச்செயல்களையிட்ட பொறுப்புக்கூறலை இலங்கை முன்னுரிமைப்படுத்தக்கூடாதெனவும், அத்துடன் மனித உரிமைகளுக்காகக் குரல்கொடுக்கும் சர்வதேச ஆர்வலர்கள் ஏனைய நல்லுறவுக்கான வடிவங்களுக்கு மேலாக யுத்தக் குற்றச்செயல்கள் விசாரணைக்கு முன்னுரிமை கொடுப்பதை நிறுத்த வேண்டும் எனவும் வாதித்துள்ளார்.

மாணிக்கலிங்கத்தின் கட்டுரையானது நிலைமாற்றுக்கால நீதிக்குள் திரும்பத்திரும்ப இடம்பெறும் இரு விவாதங்களைத் தொட்டுவரையப்பட்டது. அவை இரண்டுமே அந்தத் துறையைப்போலவே தொன்மை வாய்ந்தனவாகும். முதலாவது – சமாதானம் எதிர் நீதி எனும் வாதம். இரண்டாவது – நல்லுறவு தொடர்பான நடவடிக்கைகளின் ஒழுங்குதொடர் பற்றிய பிரச்சினை. அவரது கட்டுரையிலே யுத்தக் குற்றச்செயல்களுக்கான விசாரணைகளைவிட அரசியற்தீர்வே மிக முக்கியம் என்பதனால், அவைகளையிட்ட ஒழுங்குத்தொடரானது அரசியற்தீர்வுக்கு சலாக்கியத்தை வழங்குவதாயும் யுத்த குற்றச்செயல்களையிட்ட விசாரணையானது பின்பு இடம்பெறுவதாயும் இருக்கவேண்டும் என யோசனை தெரிவித்திருக்கிறார். இந்தக் கட்டுரையிலே தேசியப் பிரச்சினைக்கான அரசியற்தீர்வையும் குற்றச்செயல்களின் அட்டூழியத்துக்கான பொறுப்புக்கூறலையும அவர் இரண்டாகத் துருவப்படுத்தியிருப்பது பிழை என்பதையும், குற்றச்செயல்களின் அட்டூழியங்களை விசாரிக்கும் சட்டக் கட்டமைப்பின் நிர்மாணமானத்தை பின்னையதற்கு முன்னாக நிலைநாட்டுவது மேம்பட்ட உபாயமெனவும் கூற விழைகிறேன்.

இலங்கைத் தேசியப் பிரச்சினைக்கான அரசியற்தீர்வானது வழக்குத்தொடுத்தலுக்கும் விட முக்கியமானது எனும் வாதம் குறிப்பிட்ட அளவுக்கு உள்ளார்ந்த ரீதியிலே கவர்ச்சிகரமானதுதான். இருந்தாலுங்கூட, இப்படியான பகுப்பாய்வானது இனப்பிரச்சினைக்கு எண்ணெய் வார்க்கும் மோசமான குற்றச்செயல்களைப் புரிந்தவர்களைத் தண்டிக்கும் அதன் வகிபங்கைக் கவனத்திற் கொள்ளத் தவறுவதால், இது வெறும் மேலோட்டமானதே. சமத்துவத்துக்கான தமிழர் அரசியற் போராட்டமானது இலங்கை சுதந்திரம் பெறுவதற்கு முன்னதாகவே இருந்து வந்துள்ளது; குறைந்தபட்சம் இலங்கை சுதந்திரம் பெற்ற காலத்திலிருந்தாவது அதற்கெதிராகப் பல்வேறு மட்டங்களிலே வன்முறைகள் கட்டவிழ்த்துவிடப்பட்டு அவை தண்டிக்கப்படாது விடப்பட்டமை தொடர்ச்சியாக இடம்பெற்று வந்துள்ளது. தண்டிக்கப்படாமல் விடப்பட்ட வன்முறை அத்தியாயங்கள் ஒவ்வொன்றுமே இன முறுகல்களுக்குப் புதிய எண்ணெய் வார்த்து இறுதியிலே இருதிறத்திலும் கட்டுப்பாடுமீறிய வன்முறைகளுக்கு இட்டுச்சென்றுள்ளது. 1983 இனப்படுகொலைகள் – இலங்கை சுதந்திரம் அடைந்த பின்பு எந்த ஒரு இனத்துக்கும் எதிராக விடுக்கப்பட்ட மிகப்பெரிய தாக்குதல் என ஐயமின்றிக்கூறக்கூடியதான அவைகள் – ஒரு வாலிப புரட்சியைத் துரிதமாக முழு அளவிலான யுத்தமாக, பேரழிவையேற்படுத்தும் அளவுக்கு மாற்றியமைத்துவிட்டது. தண்டனையின்மையும் அதனால் விளைந்த வன்முறையும், அவை தண்டிக்கப்படாமையால் அத்தகைய வன்முறையானது எவ்வேளையிலும் பொறிதட்டப்படலாம் எனும் அச்சமுந்தான் சுயாட்சிக்கான கோரிக்கையின் இதயபீடமாய் அமைந்துள்ளது. இதனாலேதான் தமிழ் அரசியல்வாதிகள் பொலிஸ் அதிகாரங்களுக்கான உரிமையை வலியுறுத்தி வந்துள்ளனர்; தமது நிதிய மற்றும் பொருளாதார அதிகாரங்களுக்கு மேலாக, தமது சரீரகப் பாதுகாப்பின் மீதான கட்டுப்பாடானது சரியாகவோ அல்லது தப்பாகவோ மிகவும் அவசரமானதும் அத்தியாவசியமானதுமான கரிசனையாக அவர்களால் கணிக்கப்படுகிறது. எனவே, தண்டனையின்மையை முடிவுக்குக் கொண்டுவராமல் தேசியப்பிரச்சினைக்கு உண்மையான தீர்வு இருக்கமுடியாது. இனப்பிரச்சினைக்கு பொறுப்புக்கூறாத அதிகாரப்பகிர்வு மாத்திரமே சர்வநிவாரணி எனும் எடுகோளானது, சுயாட்சிக்கான கோரிக்கைகளுடன் திரட்சியான குற்றறச்செயல்களுக்கான தண்டனையின்மையானது இரண்டறக் கலந்துள்ளது எனும் நிஜத்தைப் புறக்கணிப்பதுடன், இன்னுமொரு பரந்தளவிலான அட்டூழியத்தைக் கட்டுப்படுத்த இயலாத அரசியலுக்கு வழிவகுத்து, இனங்களிடையேயான சகவாழ்வுக்கான சாத்தியங்கள் எதனையும் நிரந்தரமாகப் பாதித்தும் விடக்கூடும்.

மாணிக்கலிங்கத்தின் கட்டுரையானது இலங்கையின் இனப்பிரச்சினையின் மூலாதார இயக்கசக்தியையும் புறக்கணிப்பதாக உள்ளது. தேசியத் தலைவர்களால் முறித்துப்போடப்பட்ட வாக்குறுதிகளின் சம்பவக்கோர்வைகள் தமிழ் அரசியலின் உணர்வலைகளின் இதயபீடத்திலே கசிந்துள்ளது. இந்தப் பின்புலத்திலே, பொறுப்புக்கூறல் பற்றி இலங்கை வழங்கிய மேலும் ஓர் வாக்குறுதியை இலங்கை அரசு கனப்படுத்தத் தவறும்பட்சத்திலே, அது இன நம்பிக்கையீனத்துக்கு மேலும் பங்களிப்புச்செய்வதாக ஆகிவிடும். பண்டா – செல்வா ஒப்பந்தம், டட்லி – செல்வா ஒப்பந்தம் ஆகியவை அடுத்தடுத்து வந்த அரசுகளால் ஒருதலைப்பட்சமாக தூக்கியெறியப்பட்டது மட்டுமன்றி தொடர்ந்த கால ஓட்டத்திலே மேலும் பல வாக்குறுதிகள் நிறைவேற்றப்படாமையானது இலங்கையின் இனப்பிரச்சினைகள் பற்றிய எந்த ஒரு பக்கச்சசார்பற்ற கணிப்பிலும் பூதாகாரமாகித் தெரிகிறதாய் உள்ளது. அதேபோல, கடந்த ஒக்டோபர் 2015 இலே ஐக்கிய நாடுகள் மனித உரிமைகள் பேரவையின் தீர்மானத்திலே தற்போது உள்ளடக்கப்பட்டுள்ளதான, பொறுப்புக்கூறுதலுக்கான இலங்கையின் அர்ப்பணிப்பானது, இருதரப்பினராலும் இழைக்கப்பட்ட அட்டூழியங்களுடன் எப்படி இடைப்படுவது என்பதிலே அரசுக்கும் தமிழ் அரசியற் தலைவர்களுக்கும் இடையே அரசியல் இசைவுக்காக அடித்தளத்தை அமைத்துள்ளது. தமிழ் மக்களிடையே தீவிரப்போக்கான ஒரு சாராரின் கடும் எதிர்ப்பு நிலவினாலுங்கூட, தமிழ்த் தேசியக் கூட்டமைப்பின் தலைமையானது பணயப்பங்காளிகளுடன் ஜெனீவாத் தீர்மானத்திலே ஒரு சில கூர்மிய திருத்தங்களைச் செய்யும் விடயத்தையிட்டுக் கலந்துரையாடி, அத்திருத்திய தீர்மானம் பேரவையிலே நிறைவேற்றப்படுவதற்குத் தனது ஒத்துழைப்பை வழங்கியிருந்தது. அதுமுதற்கொண்டு அந்தத் தீர்மானமானது வெறுமனே சர்வதேச சமூகத்துக்கும் இலங்கைக்கும் இடையிலான ஒப்பந்தமாக மாத்திரமன்றி, இலங்கை அரசுக்கும் தமிழ் மக்களுக்கும் இடையே அதேயளவுக்கு முக்கியமானதாக இருக்கிறதாகக் கூட்டமைப்பு கோரியும் வந்துள்ளது. அந்த அடிப்படையிலேயே, அந்தத் தீர்மானத்தின் நிபந்தனைகளை முற்றாக அமுல்படுத்தும்படியாக அது கூறிவந்துமுள்ளது. இந்த ஒப்பந்தம் இப்போது தடம்புரளச் செய்யப்பட்டால், ஜெனீவா தீர்மானங்களைக் கைவிட்டமையானது ஒரு காலத்திலே அன்றைய பண்டா – செல்வா மற்றும் டட்லி – செல்வா ஒப்பந்தங்கள் மீறப்பட்டமையைப் பற்றி எழுந்த அதே கசப்புடனேயே அவர்களால் நினைவுகூரப்படலாம்.

எனவே, குறிப்பாக இலங்கையின் இனப்பூசலின் குறிப்பான ஏதுக்களின்படி, அதிகாரப் பகிர்வுப் பிரச்சினையை பொறுப்புக்கூறுதலைவிட வேறுபட்டதாகக் கருதுவதானது பிரச்சினையானதாக அமைந்துள்ளது. தேசியப் பிரச்சினையின் இதயபீடத்திலே உள்ள எந்த ஒரு சரித்திரப் பிரச்சினையையும் நிவிர்த்திசெய்ய எடுக்கப்படும் எந்த ஒரு அர்த்தமுள்ள முயற்சியும் திரண்ட அட்டூழியங்களுக்கு நிலவும் தண்டனையின்மையானது முடிவுக்குக் கொண்டுவரப்படுவதை உறுதிசெய்வதுடன், பரஸ்பரம் இணக்கம் காணப்பட்டவைகள் கனப்படுத்தப்படுவதாயும் இருக்க வேண்டும். இதற்கு இலங்கை இணை ஆதரவு வழங்கிய ஜெனிவா தீர்மானத்திலே கூறப்பட்டுள்ள வழிமுறைகளிலே அட்டூழியக் குற்றச்செயல்களுக்கு அர்த்தமுள்ள பொறுப்புக்கூறுதலின் ஒரு வடிவம் இருக்கவேண்டியது முன்தேவையானதாகும்.

மாணிக்கலிங்கத்துடன் ஒருவர் இணங்காதுபோனாலும், நானும் கூறுவதுபோல அரசியற் தீர்வும் பொறுப்புக்கூறலும் இரண்டறக் கலந்தவை என வலியுறுத்தினாலுங்கூட, பொறுப்புக்கூறலானது அரசியற்சட்டச் சீர்திருத்தத்தைத் தொடர்ந்தே இடம்பெறவேண்டும் எனும் நிகழ்ச்சிநிரலை அவர் பரிந்துரைப்பதானது நாம் கவனத்தைச் செலுத்தவேண்டிய அம்சமாக உள்ளது. நிலைமாற்றுக்கால நீதியின் செயன்முறைகளை ஒழுங்குநிரைப்படுத்துவதென்பது சட்டபூர்வமானதும் பல்வேறான நிலைமாற்றுக்கால நீதி இலக்குகளை நோக்கியதாக அவை பரந்தளவிலே பாவிக்கப்படும் ஒரு உபாயமாகவும் இருந்துவருகிறது. 1980கள் மற்றும் 90களிலே லத்தீன் அமெரிக்காவின் வலதுசாரிச் சர்வாதிகாரத்தினர் அச்சுறுத்தலூடாக மன்னிப்புச் சட்டங்களின் மரபை விட்டுப்போனமை அல்லது புதிய அரசின் மீது அப்படியான சட்டங்களைத் திணித்தமையின் பின்புலத்திலே அதன் நிலைமாற்றுக்கால நீதியின் உண்மை அறியும் ஆணைக்குழுக்கள் குற்றச்செயல்களுக்கான சான்றுகளை புட்டுக்காட்டுவதற்கும், முன்னைய அடக்குமுறை ஆட்சிகளை அகௌரவப்படுத்தவும் முடிவிலே அவர்களை விசாரணைக்கு இட்டுச்செல்லவும் வழிகோலியது. மிக அண்மித்த காலங்களிலோ பல நாடுகள் வழக்கு விசாரணைகள் மற்றும் உண்மை அறியும் ஆணைக்குழு ஆகிய இரண்டையுமே சமகாலத்திலே இணைந்து இடம்பெறுவதையே விரும்பியுள்ளன.

இலங்கையிலே சிலீ நாட்டைப்போல மேற்கொள்வதற்கு எந்த ஒரு மன்னிப்புச் சட்டமும் இல்லை; அத்துடன், ஆர்ஜென்டீனாவைப்போல ஒரு இராணுவப்புரட்சிக்கான வாய்ப்புகளும் இல்லை. மாறாக, மூன்றில் இரண்டு பெரும்பான்மை பலத்தைப் பெற்றுள்ள ஒரு அரசாங்கம் – நலிந்ததாக இருந்தாலுங்கூட – அதன் தேர்தல் விஞ்ஞாபனத்திலே போர்க்குற்றங்கள் தொடர்பான விடயங்கள் தேசிய சுயாதீன நீதிப்பொறிமுறையால் கையாளப்படும் என வழங்கிய வாக்குறுதிகளூடாக ஆட்சியைப் பிடித்தது. எந்தச் செயன்முறை மேம்பட்ட முக்கியத்துவத்தைக் கொண்டுள்ளது எனும் கேள்வியைவிட இலங்கைக்கான மேலானதான உபாயக் கேள்வி எதுவெனில், எடுக்கவுள்ள செயன்முறைகளின் எந்த நிகச்ழ்சி நிரையானது அதன் விளைவீடுகளை உச்சபட்சமாக்கும் என்பதே. இதனை மனதிற்கொண்டுதான் நான் ஒரு உபாய எண்ணமாக, புதிய அரசியற்சட்டம் நாடாளுமன்றத்திலே நிறைவேற்றப்பட்ட பின்பாக அல்லாமல் அதற்கு முன்னதாக பிரதம மந்திரி பரிந்துரைத்துள்ளதுபோலவே 2016இன் நடுப்பகுதியிலே ஒரு சட்டக் கட்டமைப்பைச் சீக்கிரமாக நிலைநாட்டுவதையே ஆதரிக்கிறேன்.

முதலாவதாக, அதிகாரப் பகிர்வுடன் இடைப்படும் ஒரு புதிய அரசியற் சட்டமானது எவ்வகையிலும் முன்கூட்டிய தீர்மானமாக அமைந்துவிடாது; அரசியற் சீர்திருத்தச்சபையை நிலைநாட்டுவதிலே உள்ள செயன்முறைகள் போன்றவற்றிலேயே இடம்பெற்றுவரும் தாமதங்களையும் இழுபறிகளையும் பார்க்கையிலே, பொறுப்புக்கூறுவதை அரசியற்சட்டம் நிலைநாட்டப்படும்வரைக்கும் தரித்துநிறுத்திவைப்பதென்பது, அது எந்தக்காலத்திலுமே கருத்திற்கொள்ளப்படாமல் போவதற்கான சாத்தியங்களையே கூடுதலாகக் கொண்டுள்ளதெனலாம். நிலைமாற்றுக்கால நீதி நீண்டகாலம் எடுக்கும், ஆனாலும் இறுக்கமான தீர்மானங்களை அரசாங்கத்தின் அரசியல் முதலீடு உயர்வாகவும் அதனைத் தூற்றுவோர் மிகவும் பலவீனமாகவும் இருக்கும் “நிலைமாற்றுக்காலத் தருணங்களிலே” எடுப்பதுதான் உள்ளதுக்குள் மிகவும் இலகுவானது.

அரசியலமைப்புச்சட்ட சீர்திருத்தங்களைப்போல அல்லாது, பொறுப்புக்கூறலுக்கான புதிய சட்டமூலங்களுக்கு மூன்றில் இரண்டு பங்கு பெரும்பான்மையோ அல்லது பொதுஜனவாக்கெடுப்போ தேவையில்லை. இத்தப் பின்புலத்திலே, இயலுமான வேளையிலே வெற்றியைப் பெற்றுக்கொள்ள நாடும் ஞானம் நல்லதாகவே இருக்கும். சரித்திரபூர்மான ஆட்சிமாற்றம் இடம்பெற்று பதினாங்கு மாதங்கள் கடந்துவிட்டுள்ள நிலைமையிலே, நிலைமாற்றுக்கால நீதிக்கான சாரளங்கள் மூடப்பட ஆரம்பித்துவிட்டதுடன், நீதிப்பொறிமுறைகளை நிலைநாட்டுவதிலே உள்ள அரசியற் கஷ்டங்களும் தொடர்ச்சியாக அதிகரித்தவண்ணமே உள்ளன. இன்றிலிருந்து ஒருவருட காலத்துக்குள் பொறுப்புக்கூறல் விடயத்திலோ அல்லது சட்டச்சீர்திருத்தத்திலோ இலங்கை எவ்வித முன்னேற்றத்தையும் அடைந்திராவிட்டால் தமிழ் அரசியலின் தொனியும் தோரணையும் அதிகரித்த விரக்தியாகவும், கூர்மையான பேச்சுக்களாயும் நகர்ந்திடத்தொடங்கும். தமிழ் மிதவாதிகள் தள்ளப்பட்டுப்போவார்களேயானால், தமிழ்த் தீவிரத் தேசியத்தினர் தமது சிங்கள சகபாடிகளுக்கு இனப்பூசலை விளாசி எரியப்பண்ண வேண்டிய அளவு எண்ணையை வழங்குவதுடன், சிங்கள மிதவாதிகளின் பிடியை முடிவுக்குக் கொண்டுவரவும் வழிவகுக்கும்.

ஆனாலும், போர்க்குற்றச்செயல்களுக்கான வழக்குவிசாரணைகளுக்கான சர்ச்சைக்குரிய சட்டங்களை நிறைவேற்றும்போது அது அரசியற் தீர்வுக்கென உள்ள அரசியல் முதலீட்டினைக் குறைத்துப்போட மாட்டாதா எனச் சில கண்டன விமர்சகர்கள் கேட்கக்கூடும். தெளிவுபடுத்துவதிலே அரசுக்கு உள்ள குறைபாடும், அது நாடும் நீதிப் பொறிமுறையைப் பற்றிய அதன் செய்திகளும் எப்படிப்பார்த்தாலும் ஒரு அரசியற் செலவைப் பிழிந்தெடுப்பதுடன், சிங்கள பேரினவாதிகள் எதிர்காலத்து நீதிமன்றங்கள் பற்றிய செய்திகளைக் கட்டுப்படுத்த இடங்கொடுத்து இராணுவத்துக்கு எதிரான வேட்டையாடல் இடம்பெறப்போகிறதெனும் நியாயமற்ற அச்சங்களை மக்களிலே எழுப்பவும் வழிவகுத்துவிடுகிறது. மாணிக்கலிங்கம் கூறுவதுபோல பொறுப்புக்கூறுதல் விடயத்தை அரசு பிற்காலத்துக்காகத் தரித்துநிறுத்தி வைத்திருக்குமேயாயின், இப்படியான போக்கு மேலும் அதிகரித்து செறிவடையவும் கூடும். இந்த நிலைமைக்கான ஒரு மாற்று மருந்து எதுவெனில், அரசு தான் செய்யப்போவதைப் பற்றி மிகத் தெளிவாக இருப்பதுடன், தாமதிக்காமல் அவசியமான பொறிமுறைகளை நிலைநாட்டுவதே. ஒரு உணர்வுள்ள வழக்குரைஞர் வழக்குத் தாக்கல் செய்யும் கொள்கைகளைத் தெளிவுபடுத்துவதால், அதிர்ச்சியூட்டும் சிலவகைக் குற்றச்செயல்களுடன் சம்பந்தப்படாதவர்கள் மத்தியிலே அதுபற்றி நிலவும் அச்சங்களை நிவிர்த்திசெய்ய உதவலாம். செயற்படத் தவறி, ஒருவித அசமந்தப் போக்கினை நீடித்தால், அரசு சம்பவ நிகழ்வையும், ஆதரவையும் இழந்துபோகக்கூடிய இடராபத்தை எதிர்நோக்கியிருக்கும். பொறுப்புக்கூறலை எதிர்காலத்துக்காகத் தரித்து நிறுத்திவைக்கும் உபாயம் பிரச்சினைகளை வரத்திக்கவும் அச்சங்களைப் பெருக்கவுமே வழிவகுக்கும்.

மேற்படியான காரணங்களினிமித்தமாக, உபாயரீதியான கருதுகோள்கள் சர்வதேசக் குற்றச்செயல்களை விசாரித்து வழக்குத்தொடுப்பதற்கு அரசாங்கம் துரிதமாக வேண்டிய சட்டக் கட்டமைப்பினை உருவாக்குவதை கோரிக்கையாக விடுக்கிறதென நான் கருதுகிறேன். அதன் பக்கத்திலே தீர்க்கமான தீர்மானங்களை இது வேண்டிநிற்கிறது. அவர்கள் பலவீனத்தையும் தைரியமற்ற அச்சத்தையும் புலப்படுத்துவார்களேயாயின், நேற்றைய நாளின் பலவான்களின் கோரிக்கைகள் தொடர்ந்தும் வளரும்.

Accountability and a Political Solution: A Response to Ram Manikkalingam என்ற தலைப்பில் Groundviews தளத்தில் வௌிவந்த கட்டுரையின் தமிழாக்கம்.

Published in Tamil

I. Introduction

A. UN HRC Resolution 30/1.

On 1 October 2015, the Human Rights Council adopted without a vote a historic country-specific Resolution 30/1, titled "Promoting Reconciliation, Accountability and Human Rights in Sri Lanka1. The resolution was co-sponsored by a number of countries, including Sri Lanka, after negotiations between the core group of sponsors—the United States of America, the United Kingdom, Montenegro and Macedonia—and the Sri Lankan government resulted in a consensus text which Sri Lanka agreed to co-sponsor.

Sri Lanka‘s co-sponsorship of the resolution was significant for a number of reasons. By that act, Sri Lanka took ownership of the terms of the resolution, and indicated that it accepted that it assented to the resolution in full, and thereby commended it to the other members of the Council.

The resolution was adopted barely weeks after the release of the Report of the Office of the High Commissioner for Human Rights (OISL Report)2 and was subjected to intense negotiations at the 30th session of the Council. The result was a resolution that attempted to find common ground between the commitments made by the Sri Lankan government to the Council—in the form of a speech by Minister of Foreign Affairs Hon. Mangala Samaraweera3—and the recommendations of the OISL. The resolution adopted by consensus was welcomed by a variety of stakeholders: Human Rights Watch described it as a "far-reaching call to address pressing needs for reform4; the Tamil National Alliance welcomed it as providing "a genuine opportunity for real progress on accountability and reconciliation"5; while United States Secretary of State John Kerry claimed it "represents a landmark shared recognition of the critical importance of truth, justice, reparations, and guarantees of non-recurrence…for all Sri Lankans"6.

The lengthy resolution, which contains 23 preambular paragraphs and 20 operative paragraphs, lays out an ambitious vision in respect of dealing with the past in Sri Lanka. If implemented, this resolution could mark Sri Lanka as a rare success for Transitional Justice in the region. And yet, while the resolution represented a monumental advance for Transitional Justice in Sri Lanka, it is only through its implementation that rights will be vindicated, lives restored, and communities healed. The resolution must move from words to action.

B. The Report.

This report sets out a detailed roadmap for implementation of HRC Resolution 30/1. It classifies the commitments made by the government in the operative paragraphs of the resolution into five areas: truth telling and the right to know; special courts and justice for crimes; legal and institutional reform; security sector reform; and general commitments on Transitional Justice and Human Rights. The report considers each commitment in the resolution, identifying its importance and the reason behind its inclusion in the resolution. The report also identifies the several administrative or legislative steps necessary to implement each commitment and the reason why such step is necessary, the time frame within which each step could be implemented, progress—or the lack of it—made hitherto, and the foreseeable obstacles to full implementation.

In delineating steps to be undertaken to fulfil each commitment, the report only outlines affirmative steps required. The report only identifies steps that are tangible, operational, and objectively verifiable. Further, the steps identified are those that must be taken by the government. Even though other actors play a central role in Transitional Justice, this report only outlines steps to be taken by the government, as it was the government that voluntarily undertook the commitments in the resolution. In identifying time frames for implementation, the report identifies steps as those that could be implemented within a particular time frame if the entire step could be fully implemented within that time frame, or if implementation could commence within the time frame.

II. Truth-Telling and the Right to Know.

COMMITMENT: Establish an Office on Missing Persons (OP4).

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1. Devise a plan for and obtain Cabinet approval to establish an Office on Missing Persons (OMP).

2. Gazette a Bill to establish an OMP and place it on the Order Paper of Parliament

3. Ensure passage of Bill through Parliament to establish an OMP, giving it the freedom to obtain financial, material and technical assistance from international partners, including OHCHR.

4. Nominate and appoint officers/members of the OMP.

5. Take logistical steps necessary to equip, resource and staff the OMP to carry out its mandate.

6. Transfer all materials, records and evidence collected by former Commissions of Inquiry pertaining to enforced disappearances including the Paranagama Commission to the OMP

7. Provide continued support including funding for the work of the OMP.

 

COMMITMENT: Develop a comprehensive plan and mechanism for preserving all existing records and documentation relating to human rights violations and abuses and violations of IHL, whether held in public or private institutions (OP15).

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1. Issue an order temporarily halting any destruction of any government records

2. Establish by Presidential decree under Article 33(f) of the Constitution a temporary body to function until a statutory body takes over which would be empowered to transfer records and documents relating to possible IHRL and IHL violations to its own custody.

3. Develop a comprehensive plan for preserving existing records and documentation.

4. Obtain Cabinet approval for a Bill to preserve records and documentation.

5. Gazette a Bill on the lines described above and place it on the Order Paper of Parliament.

5. Ensure passage of the Bill through Parliament.

7. Take logistical steps necessary to equip, resource and staff institution(s) responsible for selecting, preserving and making available records.

7. Provide continued support including funding for the work of preserving records and documentation.

 

COMMITMENT: Establish a Commission for Truth, Justice, Reconciliation and NonRecurrence (OPA 4).

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1. Devise a plan for and obtain Cabinet approval to establish a Commission.

2. Gazette a Bill to establish a Commission and place it on the Order Paper of Parliament.

3. Ensure passage of Bill to establish a Commission, giving it the freedom to obtain financial, material and technical assistance from international partners, including OHCHR.

4. Nominate and appoint Members of the Commission

5. Take logistical steps necessary to equip, resource and staff Commission to carry out mandate.

6. Provide continued support including funding for the work of the Commission.

7. Disseminate findings and Report of the Commission.

8. Implement recommendations of the Commission Report.

9. Establish necessary successor organizations to disseminate and archive Commission materials.

 

A. Establish an Office on Missing Persons (OP4).

International human rights law clearly establishes the right of families of the disappeared to know the facts concerning the fate of their loved ones. In particular, article 24 of the Convention on Enforced Disappearances states that each victim (which includes family members) has the right to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person7. This basic principle of the families‘ right to know has been reaffirmed in numerous UN resolutions, declarations and documents,8 and has been described as an "absolute right" which flows from the fact that the enforced disappearance causes "anguish and sorrow to the family", a suffering that "reaches the threshold of torture.9

Sri Lanka has periodically instituted a number of mechanisms—in particular, Presidential Commissions of Inquiry—to inquire into various categories of the large number of enforced disappearances perpetrated in Sri Lanka over many decades. In fact, the Paranagama Presidential Commission of Inquiry which was mandated by former President Rajapaksa has continued to function to date. However, the demand for a discrete and independent mechanism outside the institutional framework of Presidential Commissions of Inquiry emerged soon after President Sirisena‘s assumption of office. In March 2015, SACLS co-founder Niran Anketell wrote about the need for a reconstituted investigative body in place of the Paranagama Commission to investigate the fate of the missing, stating:

Such a body must be fundamentally different to past commissions of inquiry, which have treated public hearings as an end rather than a means to reaching the truth. It should be vested with broad investigative powers: to search premises, summon witnesses and suspects, and seize relevant evidence. Ideally, such a body will involve, but not be limited to, the participation of experienced law enforcement officers with a track record of independence. To ensure credibility with the public and victims, the body must also be staffed by civil servants, human rights activists and relevant forensic experts, including international experts where necessary. This body must deploy investigators across the country but particularly in the north and east to pursue evidence…The unwavering focus of the investigation must remain on finding the missing, and where the person is dead, providing an account to the families of the circumstances surrounding their death in a way that enables closure.10

In April 2015, after his first visit to Sri Lanka, Special Rapporteur on Truth, Justice, Reparations and Guarantees of Non-Recurrence Pablo de Grieff also spoke of the failure of Commissions of Inquiry and noted that "the country cannot afford to simply reproduce an approach that is characterized by the proliferation of largely unrelated and inconsequential 'ad hoc‘ initiatives.11

In its preparations for the 30th session of the UN Human Rights Council, the government was reported to have consulted the International Committee of the Red Cross (ICRC) in developing a mechanism to deal with missing persons. In fact, in as early as March 2015, a high ranking official from ICRC visited Sri Lanka and reported that "a proposal to set up an independent process to clarify the fate of missing persons was discussed and was positively received by government officials. 12 ICRC‘s engagement with the Sri Lankan government on the issue is understood to have continued since.

Eventually, on 14 September 2015 speaking at the high level segment of the Human Rights Council, Minister Samaraweera outlined Sri Lanka‘s plans on an Office on Missing Persons, wherein he referred to: "an Office on Missing Persons based on the principle of the families‘ right to know, to be set up by Statute with expertise from the ICRC, and in line with internationally accepted standards.13 Likewise, the OISL Report released thereafter recommended that Sri Lanka "dispense with the current Presidential Commission on Missing Persons and transfer its cases to a credible and independent institution developed on consultation with families of the disappeared.14

The government has since continued to speak of the proposed Office on Missing Persons, and stated that it would be established through legislation.  
Below are the steps necessary to implement the commitment:

1. Design a plan for an Office on Missing Persons, including temporal and substantive mandates, powers, functions, composition, and incidental legal features.

In designing an office to clarify the fate of the missing, Sri Lanka appears to be advised by the ICRC. A number of issues would have to be addressed.

These include:

  • Establishment. Whether the body is to be temporary or permanent, and what its management structure would be;
  • Mandate. Temporal mandate (the notion of a temporal mandate with respect to disappearances is conceptually problematic and practically controversial as enforced disappearance is a continuing crime) and subject matter mandate (whether the Office is mandated to look into all missing persons or those who are missing within a particular context, such as that of an armed conflict);
  • Staffing. This is of particular importance given two factors. First, securing the technical competencies required by investigations of missing persons, and second, securing the participation of international personnel if necessary and as envisaged in OP4 of the resolution which refers to the freedom of the mechanism to obtain "financial, material and technical assistance" from international partners including OHCHR. Flexibility with respect to these issues will require that the OMP is specifically excluded from the regular public service in which bureaucratic red tape and administrative regulations could undermine the effective functioning of the Office.
  • Structure. An effective OMP would contain at least the following units/sections: Investigation Unit, Forensic Unit, Registry of Missing Persons, Registry of Detained Persons, Policy Unit, Outreach Unit, Secretariat (for administration) and Psychosocial Unit;
  • Resources and funding. Here too, given the explicit reference to the freedom of the mechanism to obtain financial assistance, and given the importance of an independently functioning body, it is desirable that the OMP be able to directly receive funding from external sources within and outside the country, in addition to budgetary allocations;
  • Functions. The OMP would ideally be tasked with the following functions: receive tracing requests; collect and store evidence and information collected from family members of missing persons; open and maintain missing persons files; maintain a registry of missing and detained persons; devise a policy to protect personal data; conduct comprehensive investigations in order to trace missing persons; exhumation and recovery of the dead; issue certificates of absence and make recommendation for registration of death; provide psychosocial support; maintain an emergency relief fund; assess victims needs and make recommendations for reparation; issue recommendations for prosecutions; and conduct outreach.
  • Powers. The OMP must have access to public premises, archives, and any other information, as well as the power to procure and receive any testimony. The Office should also have the power to summon any person to give evidence, including under oath. Regular legislative provisions on contempt relating to quasi-judicial bodies must be incorporated. The Office should also be specifically vested with powers relating to forensic analysis, as well as exhumation and recovery of human remains.  Finally the OMP should be empowered to issue certificates of absence and to make recommendations for registrations of death.
  • Appeals and Accountability. The OMP must be established in a way that it is accountable to victims. This means that decisions of the OMP must be subject to appeal procedures and judicial review.

As devising the OMP is an administrative task, and because the Sri Lankan government has already been in consultations with ICRC for a significant period of time, this step could be undertaken comfortably within the short term (within three months). Even if the Sri Lankan government were to wait till consultations on the design of Transitional Justice mechanisms are concluded, this step could still be concluded within three months as the consultations are due to conclude in mid-April 2016.15

2. Obtain Cabinet approval for a Cabinet paper to establish an Office on Missing Persons (OMP).

As the proposed Office is to be established by an Act of Parliament, Cabinet approval must first be obtained before a Bill is sent to Parliament. This is a formality once the government makes a decision on how to devise the OMP. It could be implemented within the short term.

3. Gazette a Bill to establish an OMP and place it on the Order Paper of Parliament.

As the proposed Office is to be established by an Act of Parliament, the draft Bill must be gazette and placed on the Order Paper of Parliament. This is a formality once the government makes a decision on how to devise the OMP. It could be implemented within the short term.

4. Ensure passage of Bill through Parliament to establish an OMP, giving it the freedom to obtain financial, material and technical assistance from international partners, including OHCHR.

The Bill would, if challenged in the Supreme Court, be subjected to a determination process which could last up to four weeks, and thereafter the Bill would be taken up by Parliament for debate and eventually a vote. The entire procedure could be completed within several weeks, but may take longer if there is substantial committee stage discussion on the Bill. In any event, it could be implemented within the short term. However, in view of possible delays in Parliament, this step could be considered to be implementable within the medium term (within 12 months).

5. Nominate and appoint officers/members of the OMP.

Once the Act is passed, the appointing authority must appoint the officers constituting the OMP. This is a merely administrative step, but it is essential that appointments are made so as to ensure the credibility and capacity of the Office to carry out its functions. This step could be implemented within the medium term.

6. Take logistical steps necessary to equip, resource and staff the OMP to carry out its mandate.

The OMP must be staffed and financed adequately. Continuous training in key skills must also be provided to staff and experts. This step could be implemented within the medium term.

7. Transfer all materials, records and evidence collected by former Commissions of Inquiry pertaining to enforced disappearances including the Paranagama Commission to the OMP.

The records belonging to previous Commissions of Inquiry ought to be preserved by the Presidential Secretariat. In the event they are not, they will have to be retrieved from wherever they are currently held. To avoid administrative delays, the requirement that these records be handed over to the OMP must be explicitly specified by legislation. This step could be implemented within the medium term.

8. Provide continued support including funding for the work of the OMP.

This step would have to be implemented over the long term (beyond 12 months).

However, several challenges are anticipated:

Although the proposal for an OMP has widely been described as non-contentious, and pointing to the possibility of the government unveiling it early, the question of whether the OMP would pass on its files and evidence—once investigations are concluded—to prosecutors would have to be addressed. The ICRC‘s potential involvement in a process would usually mean that information passed on to the OMP by ICRC be withheld from prosecutors,16 but this does not require the entirety of the Office‘s files to be excluded from use in criminal trials. However, there are some who claim that the truth-recovery function of the Office would be impeded if perpetrators desist from approaching the OMP for fear of being prosecuted. Experience has shown, however, that perpetrators respond positively to well-conceived systems of rewards and punishments, such as that devised for the South African Truth and Reconciliation Commission, whereby the Commission was empowered to grant amnesty in return for full disclosure, but prosecutors were expected to prosecute those who either did not apply for amnesty or whose amnesty applications were rejected.17 For this reason, SACLS believes a blanket ban on transferring OMP files and cases to prosecutors would not serve the interests of either truthrecovery or justice. On the contrary, a scheme whereby perpetrators are able negotiate agreements for non-prosecution or plea bargains with prosecutors via the OMP in exchange for cooperation would better serve the demands of both truth and justice.

B. Develop a comprehensive plan and mechanism for preserving all existing records and documentation relating to human rights violations and abuses and violations of IHL, whether held in public or private institutions (OP15).

International law and best practices on Transitional Justice are now beginning to crystallize a duty of the state to archive documentation relating to violations of human rights and IHL.18 The Updated Principles on Action to Combat Impunity sets out a number of principles relevant to archiving. Principle 5 requires States to "ensure the preservation of, and access to, archives concerning violations of human rights and humanitarian law.'19 Principle 14 highlights the nexus between the right to know and the need for preservation of archives, noting that further "technical measures and penalties should be applied to prevent any removal, destruction, concealment or falsification of archives, especially for the purpose of ensuring the impunity of perpetrators of violations of human rights and/or humanitarian law.'  Principle 15 establishes that access to archives shall be facilitated, both to victims and, as necessary, to persons implicated who request it for their defence. Further, the updated set of principles is clear that access to archives must be granted to Transitional Justice institutions and that access may only be denied in exceptional circumstances, on specified grounds established by law.

The importance of archiving for the success of all Transitional Justice mechanisms must also be highlighted. Transitional Justice mechanisms must rely on evidence, and much of this evidence would be unavailable if documents and records are not maintained.

The OISL Report also recommended that Sri Lanka "develop a comprehensive plan/ mechanism for preserving all existing records and documentation relating to human rights violations, whether held by public or private institutions."20 This recommendation was thereafter incorporated, nearly verbatim, into the resolution, in operative paragraph 15.

Below are the steps necessary to implement the commitment:

1. Issue an order temporarily halting any destruction of any government records.

Section 201 of the Penal Code makes it an offence to secrete or destroy "any document which he may be lawfully compelled to produce as evidence in a Court of Justice, or in any proceeding lawfully held before a public servant as such, or obliterates or renders illegible the whole or any part of such document with the intention of preventing the same from being produced or used as evidence before such court or public servant as aforesaid, or after he shall have been lawfully summoned or required to produce the same for that purpose." Thus, the destruction of documents by a person who is in possession of documents which she could lawfully be compelled to produce as evidence in a court or any proceeding before a public servant amounts to an offence.

In implementing this prohibition, the government must act swiftly to order a temporary halt to the destruction of any government records, indicating that swift disciplinary action would be taken against those who breach the order. This is imperative, given that those motivated to destroy evidence of crimes relating to human rights violations and violations of IHL may intensify their efforts in the event a plan to establish an archive is announced. Thus, interim steps must be taken to safeguard potential evidence and documentation until a permanent body to undertake that work is established.

This is an administrative step and could be implemented within the short term.

2. Establish by Presidential decree under Article 33(f) of the Constitution a temporary body to function until a statutory body takes over which would be empowered to transfer records and documents relating to possible IHRL and IHL violations to its own custody.

Successive presidents have used their powers under Article 33(f) of the Constitution to establish Presidential Task Forces for a wide variety of purposes. While these bodies have sometimes been used to flout established laws and bypass statutory bodies, an appropriately mandated body exercising delegated presidential power to safeguard documents and records in government custody would represent a positive use of the President‘s powers under Article 33(f). However, such a body, since it would not a creation of statute, would not be legally empowered to regulate private conduct. The body‘s mandate should terminate no sooner a permanent statutorily mandated authority is constituted after the due passage of legislation.

This is an executive step and could be implemented within the short term.

3. Develop a comprehensive plan for preserving existing records and documentation.

Parallel to establishing a temporary body to undertake the preservation of documents and archiving, the government must also develop a plan and devise permanent mechanisms to undertake archiving. In doing so, the following issues must be addressed: authorize one or more institutions to select, preserve and make available records of the government pertaining to IHRL and IHL violations; authorize one or more institutions to accept donations of non-governmental records and personal papers; consider under what conditions the body could require private persons to hand over documents in their possession; specify who has access to the records and under what conditions; ensure availability of records to Transitional Justice mechanisms; and introduce privacy and data protections mechanisms.

This step could be introduced within the short term.

4. Obtain Cabinet approval for a Bill.

This is a formality once the government makes a decision on how to devise a permanent mechanism to undertake archiving. It could be implemented within the short term.

5. Gazette a Bill on the lines described above and place it on the Order Paper of Parliament.

This is a formality once the government makes a decision on how to devise a permanent mechanism to undertake archiving. It could be implemented within the short term.

6. Ensure passage of the Bill through Parliament.

Subject to legal challenges, which are not foreseeable but technically possible, the legislative process could take up to three months. This step could be implemented in the medium term.

7. Take logistical steps necessary to equip, resource and staff institution(s) responsible for selecting, preserving and making available records.

Archiving involves certain specialist skills and these specializations should be procured for the work of archiving in Sri Lanka. This step could be implemented within the medium term.

8. Provide continued support including funding for the institution tasked with archiving.

This step would have to be implemented over the long term.

C. Establish a Commission for Truth, Justice, Reconciliation and Non-Recurrence (OP4).

The idea of a truth commission for Sri Lanka has been on the agenda of the national conversation on Transitional Justice for many years, if not decades. Ever since the proliferation of information, news and scholarship around the South African Truth and Reconciliation Commission, many in Sri Lanka—including civil society and government actors—have been drawn to the idea.

The Rajapaksa government also entertained the idea of establishing a truth commission, primarily in an attempt to appease international pressure on accountability issues.21 The then government engaged with the government of South Africa on multiple occasions—even sending study groups from Sri Lanka to visit South Africa—to explore the idea of a truth commission. Eventually, no significant movement was made. When the government changed, however, Prime Minister Ranil Wickremasinghe continued the previous government‘s engagement with South Africa, and has repeatedly claimed that a truth commission devised on the advice of the South Africans would be established in Sri Lanka.22 The government also appeared to be considering a 'Compassionate Council' of religious leaders to join the Truth Commission.

Minister Samaraweera‘s address to the Human Rights Council clarified the envisaged structure, stating that the government would establish by statute, a:

…Commission for Truth, Justice, Reconciliation and Non-recurrence to be evolved in consultation with the relevant authorities of South Africa. This mechanism is envisaged as having a dual structure: a 'Compassionate Council‘ composed of religious dignitaries from all major religions in the country and a structure composed of Commissioners.23

Despite this clarification, the role of the envisaged "Compassionate Council" remains unclear. As a consequence, questions about whether this Council would have the power to grant or recommend amnesty, or some sort of presidential pardon for those convicted by a special court, will inevitably arise. It is in the government‘s interest to clarify the scope of this Council, and ensure that it is not used to undermine the work done by other Transitional Justice mechanisms.

Below are the steps necessary to implement the commitment:

1. Design a plan for and obtain Cabinet approval to establish a Commission.

Designing a truth commission that addresses the manifold truth and justice needs in a post-armed conflict environment could be very challenging. The principal challenges facing policy makers are threefold: how to craft the policy orientation of the Commission; how to define the scope of the Commission‘s inquiries; and how to settle operational questions concerning the work of the Commission.24

With respect to the question of policy orientation, the instrument establishing the Commission should identify its objectives. These may be, for instance, to determine the facts surrounding violations and uncover hidden truths, to ensure the protection and promotion of human rights, or to usher in reconciliation. Thereafter, the functions of the Commission must be elucidated. These may include functions such as receiving information and complaints from the public and from victims; conducting investigations, protecting witnesses and victims, conducting public hearings,  carrying out outreach, issuing interim and final reports, making recommendations for future reform and other related objectives.

Thereafter, it is important to establish the scope of the inquiry in consultation with stakeholders. The balance between ensuring that as broad a cross section of victims could have their concerns heard on the one hand, with the need to provide the Commissioners as workable and practical mandate on the other, must be struck. The temporal scope of the mandate (what period the Commission would cover) and the substantive scope (what violations and crimes would the Commission cover) would be of critical importance in Sri Lanka, as large communities of victims could be excluded if the mandate is crafted too narrowly.

Finally, the instrument establishing the Commission must address institutional factors. These include by whom and how the Commissioners to be appointed; whether the Commission would exercise certain coercive powers such as the power to summon persons, seize documents, and place witnesses on oath; how long the Commission is to function; how the Commission would be funded; and how the structure of the Commission is to be organized.

While devising a Commission would involve resolving knotty and politically sensitive questions, the government has already had many months to discuss the issue, and as such, the step could be implemented within the short term.

2. Gazette a Bill to establish a Commission and place it on the Order Paper of Parliament.

This is a formality and could be implemented within the short term.

3. Ensure passage of Bill to establish a Commission, giving it the freedom to obtain financial, material and technical assistance from international partners, including OHCHR.

This step could be implemented in the medium term.

4. Nominate and appoint Members of the Commission.

Members of the Commission should be "individuals known for displaying the  highest  degree  of  professionalism,  integrity  and  impartiality"25. They ought to be of good standing and repute and, depending on the functions that the Commission will be tasked with, they must have distinguished themselves by their contributions to democracy, human rights, international law, arts and culture, social sciences, medical sciences, psychology and forensic and medical sciences.

Given that the law must stipulate the mode of appointment, this requires simple administrative steps, but appointments must not be delayed in order to ensure public confidence. This step could be implemented in the medium term.

5. Take logistical steps necessary to equip, resource and staff the Commission to carry out its mandate.

The resolution refers to Sri Lanka‘s commitment to allow each mechanism the freedom to obtain financial, material and technical assistance from international partners. Investigators and case workers would also have to be trained intensively to deal with complex cases and traumatized victims. This step could be implemented within the medium term.

6. Provide continued support including funding for the work of the Commission.

Truth commissions must be funded adequately. This step would have to be implemented over the long term.

7. Disseminate the work, findings and report of the Commission.

Disseminating the work of the Commission is critical to changing perspectives on the ground, and assisting reconciliation. Further, the government must stand by the report of the Commission and disseminate it widely. This step would have to be implemented over the long term.

8. Implement recommendations of the Commission Report.

Implementing the recommendations of a Commission report is a critical test of the willingness of the government to institute Transitional Justice measures, and a barometer to judge the success of Transitional Justice in a given country. These steps would have to be implemented over the long term.

9. Establish necessary successor organizations to disseminate and archive Commission materials.

The legacy of a Commission must outlive its term, and for this reason, Commissions are sometimes succeeded by institutions responsible for disseminating their work and promoting their objectives. The Institute for Justice and Reconciliation in South Africa is one such institution. As the ICTJ notes:

…responsibility for the continuing dissemination and maintenance of the commission‘s materials should be set out in the authorizing mandate, usually taking the form of a successor institution. This may be a new office on the site of the original commission or an existing institution capable of fulfilling this role, such as a historical archive or academic institute. In the latter case, it is important to ensure that it is an independent body, like a human rights ombudsman, with the ability to successfully engage with civil society and state institutions26.

D. Release publicly previous presidential commissions’ reports (OP14).

In keeping with its commitment to the Human Rights Council in September 2015, the Sri Lankan government released the report of the Paranagama Commission of Inquiry on its second mandate27, as well as the report of the Udalagama Commission of Inquiry28.

However, other Commissions‘ reports pertaining to human rights violations including the Mahanama Tillekeratne Commission‘s report into disappearances, the Commission‘s report on incidents in the Katunayaka Free Trade Zone, the Commission‘s report on the Welikada prison killings have not been released.29

This commitment could be implemented in the short term.

III. Special Courts and Justice for Crimes.

 

 

COMMITMENT: Establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of IHRL and IHL (OP6).

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1. Devise a plan for and obtain Cabinet approval to establish a special court with a special counsel to prosecute in that court. Vest the special court with jurisdiction over war crimes and crimes against humanity. (see below)

2. Gazette a Bill to establish a special court and special counsel and place it on the Order Paper of Parliament.

3. Ensure passage of Bill to establish a special court and special counsel.

4. Take steps to ensure appointment of judges and court staff in the special court.

5. Take steps to ensure appointment of special counsel and prosecution team/teams.

6. Take logistical steps necessary to equip and resource special court and special counsel‘s office

7. Provide continued support including funding for the work of the judicial mechanism..

8. Make specific accommodations to protect effectively witnesses and victims, investigators, prosecutors and judges.  

 

COMMITMENT: Reform domestic law to allow for the trial and punishment of those most responsible for the full range of crimes under the general principles of law recognized by the community of nations relevant to violations and abuses of human rights and IHL, including during the period covered by the LLRC (OP7).

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1 Obtain Cabinet approval to criminalize under domestic law war crimes, crimes against humanity and enforced disappearance with retroactive effect till at least 2002. Also provide for modes of liability to allow for prosecution of those most responsible for crimes, including command responsibility and joint criminal enterprise/coperpetration.

2. Gazette a Bill to criminalize the above offences and provide for modes of liability under international criminal law, and place the Bill on the Order Paper of Parliament.

3. Ensure passage of Bill on the lines described above.  

 

COMMITMENT: Investigate all alleged attacks by individuals and groups on journalists, human rights defenders, members of religious minority groups and others members of civil society, as well as places of worship, and hold perpetrators of such attacks to account (OP11).

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1. Nominate and mandate an appropriately empowered and independent authority to investigate all public reports of attacks on various categories.

2. Adequately resource, staff and train such authority to conduct investigations.

3. Where evidence exists, take steps forthwith to prosecute perpetrators of such crimes.

 

 

COMMITMENT: Develop a comprehensive plan and mechanism for preserving all existing records and documentation relating to human rights violations and abuses and violations of IHL, whether held in public or private institutions (OP15).

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1. Issue an order temporarily halting any destruction of any government records

2. Establish by Presidential decree under Article 33(f) of the Constitution a temporary body to function until a statutory body takes over which would be empowered to transfer records and documents relating to possible IHRL and IHL violations to its own custody.

3. Develop a comprehensive plan for preserving existing records and documentation.

4. Obtain Cabinet approval for a Bill to preserve records and documentation.

5. Gazette a Bill on the lines described above and place it on the Order Paper of Parliament.

5. Ensure passage of the Bill through Parliament.

7. Take logistical steps necessary to equip, resource and staff institution(s) responsible for selecting, preserving and making available records.

7. Provide continued support including funding for the work of preserving records and documentation.

 

A. Establish a judicial mechanism with a special counsel to investigate allegations of violations and abuses of IHRL and IHL (OP6).

The provisions of operative paragraph 6 were by far the most controversial and most negotiated feature of the entire resolution.

In this regard, SACLS has articulated the necessity for a hybrid court in Sri Lanka—one that would accommodate the participation of international judges, lawyers, investigators and prosecutors in a special court wherein prosecutions are conducted by a special prosecutor—since early 2015.30 The need for substantial international participation arises in the context of the lack of credibility of the judicial system in Sri Lanka and the absence of core competencies within the legal community in respect of investigating and prosecuting system crimes.

Foreign Minister Mangala Samaraweera‘s speech in Geneva referred to the government‘s proposal to establish a judicial mechanism with a special counsel.31 Signalling an anticipated backlash in Sri Lanka, he noted that:

There have been previous instances as well in Sri Lanka when criminal justice mechanisms of different kinds have been set up. This, therefore, is not at all an alien concept. Neither is it aimed at a particularly group of persons, but something that is essential in terms of upholding the rule of law, and creating a society that respects the rule of law32.

However, this speech did not refer to the possibility of any foreign participation in trials.

At the press conference to mark the launch of the OISL Report, the High Commissioner placed heavy emphasis on the OISL‘s recommendation that Sri Lanka establish a hybrid court, noting the level of mistrust in the domestic criminal justice system and stating that:

…it is for this reason that the establishment of a hybrid special court, integrating international judges, prosecutors, lawyers and investigators, is so essential. A purely domestic court procedure will have no chance of overcoming widespread and justifiable suspicions fuelled by decades of violations, malpractice and broken promises.33

The OISL Report generated fresh impetus for the UNHRC Resolution 30/1 to assert the importance of international participation in criminal trials. The draft resolution went through multiple iterations before a consensus formula was agreed upon. The eventual text affirms the importance of accountability and criminal prosecutions, notes with appreciation the government‘s proposal to establish a judicial mechanism with a special counsel and then "affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the special counsel‘s office, of Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators."34

1. Design a plan for and obtain Cabinet approval to establish a special court with a special counsel to prosecute in that court. Vest the special court with jurisdiction over war crimes and crimes against humanity.

A special judicial mechanism on the lines outlined in the resolution should contain a special counsel‘s office with investigative and prosecutorial powers; as well as trial and appellate chambers. Further, the court registry must include a unit for witness and victim support and protection, a unit to support defence as well as an outreach unit similar to those established within hybrid ad-hoc courts. SACLS has already published a detailed analysis on how a fully functional special court with international participation at all levels could be established within the terms of Sri Lanka‘s existing constitution.35

However, the government would have to decide, ideally once national consultations now underway are concluded, on the balance of foreign and local participation and the manner in which Commonwealth and other foreign judges, lawyers, investigators and prosecutors are to be sourced and appointed. If the court is conceived as an ad-hoc court, the government would have to decide for what length of time the court would operate, granting however the possibility that existing cases may extend long beyond a government-appointed deadline.

This step could be implemented within the short term.

2. Gazette a Bill to establish a special court and special counsel and place it on the Order Paper of Parliament.

Once a plan for the court is devised, this step is a formality and could be implemented within the short term.

3. Ensure passage of Bill to establish a special court and special counsel.

Assuming a constitutional challenge of the Bill, process between gazetting the Bill and eventual passage through Parliament could take several months. This step could therefore be implemented within the medium term.

4. Take steps to ensure appointment of judges and court staff in the special court.

This step could be undertaken with the medium term. Modes of appointment are already provided in the constitution.36

5. Take steps to ensure appointment of special counsel and prosecution team/teams.

This step could be undertaken within the medium term. Modes of appointment would have to be specified by law.

6. Take logistical steps necessary to equip and resource the special court and special counsel’s office.

This is a vital step given the various technical competencies—forensic and investigative skills, domestic criminal law, international criminal law, international law, courtroom advocacy and case management—required for investigations and prosecutions of complex crimes. This will require intense training for both local and foreign staff, as well as generous financial resources to ensure information technology systems, physical space, on-demand consultants, translation services, security and effective outreach.

This step could be undertaken within the medium term.

7. Provide continued support including funding for the work of the judicial mechanism.

Sustaining a special court could involve significant budgetary implications. It is essential that funding is secured in advance, either through budgetary allocations or bilateral funding, in order to avoid funding shortages which have threatened to cripple some ad hoc hybrid courts such as the Khmer Rouge Tribunal (ECCC) in Cambodia.37

This step would have to be implemented over the long term.

8. Make specific accommodations to protect effectively witnesses and victims, investigators, prosecutors and judges.

This step is a specific requirement of operative paragraph 9 of the resolution. When devising the court, the government should pay attention to how a witness and victim support unit within the court would interact with national institutions established under the Protection of Victims and Witnesses Act.

This step could be undertaken over the long term.

Challenges anticipated:

Within months of the passage of the HRC resolution, the government‘s commitment to fully implement operative paragraph 6 of the resolution has already been cast in doubt. President Sirisena appeared to rule out the possibility of international participation in trials in an interview with BBC Sinhala38, only to state in his 2016 Independence Day address that the resolution would be implemented39. At around the same time, the Sri Lankan government also committed, during bilateral discussions with the European Union, that the full implementation of the October 2015 resolution was a priority40. Nevertheless, the President‘s comments point to potential problems with respect to the design of the court. Further, it is not clear whether the President‘s stated opposition to foreign participation is limited to foreign judges, or whether he is similarly opposed to the participation of foreign prosecutors and investigators who are indubitably of much greater importance to the success of a court than sitting judges.

B. Reform domestic law to allow for the trial and punishment of those most responsible for the full range of crimes under the general principles of law recognized by the community of nations relevant to violations and abuses of human rights and IHL, including during the period covered by the LLRC (OP7).

The OISL report specifically noted that "acts amounting to international crimes should be tried as such, and not merely as ordinary crimes".41 The report went on to quote an SACLS publication which argued that: "prosecuting international crimes as regular Penal Code offences ignored the widespread, systematic and structural elements that inhere in the definitions of international crimes".42

The OISL‘s recommendations also called for the enactment of "legislation to criminalize war crimes against humanity, genocide and enforced disappearances, without a statute of limitation".43 It also called on Sri Lanka to enact various modes of criminal liability, "notably command or superior responsibility".44

Of course, the question about whether new legislation could be applied to past crimes arises in this regard. Usually, retroactive criminal laws are considered repugnant to the constitution, and the constitution explicitly prohibits such laws in Article 13(6). However, the proviso to that Article specifically excludes crimes according to the "general principles of law recognized by the community of nations" from the retroactivity rule, also known as the principle of legality in international law. The proviso in Article 13(6) is in fact borrowed from Article 15(2) of the ICCPR which also contains an identical proviso. The purpose behind this proviso in the ICCPR and the Sri Lankan constitution was to allow for retroactive laws criminalizing, under domestic law, acts that were criminal according to international law at the time of their commission. For this reason, the retroactive criminalization of war crimes, crimes against humanity, genocide and enforced would not infringe constitutional provisions. Sri Lankan courts have also previously held in Sepala Ekanayake’s case45 that the retroactive criminalization of the offence of air piracy did not violate the constitution. This was because the act of air piracy by the accused was criminal according to the general principles of law recognized by the community of nations at the time it was committed.


The resolution‘s language on the retroactive incorporation of international crimes was intensely negotiated. The resulting text is highly technical and directly uses language borrowed from Article 13(6) of the Constitution. Further, the element of retroactivity was introduced into the resolution through a discreet and seemingly innocuous reference to violations committed "including during the period covered by the Lessons Learnt and Reconciliation Commission". A requirement that modes of liability required to prosecute those up the chain of command was also introduced through another seemingly innocuous reference to the trial and punishment of "those most responsible for the full range of crimes" under international law.

1. Obtain Cabinet approval to domestically criminalize offences such as war crimes,  crimes against humanity and enforced disappearance with retroactive effect till at least 2002. Also provide for modes of liability to allow for prosecution of those most responsible for crimes, including command responsibility and joint criminal enterprise/coperpetration.

Once a decision to incorporate international crimes is made, Cabinet approval could be obtained within the short term.

2. Gazette a Bill to criminalize the above offences and provide for modes of liability under international criminal law, and place the Bill on the Order Paper of Parliament.

This is a mere technicality. Sri Lanka could borrow the definition of crimes verbatim from the Statute of the ICC, or from some other statute. This step could be implemented within the short term.

3. Ensure passage of Bill on the lines described above.

This step could be implemented in several months, in the medium term.

C. Address all reports of sexual and gender-based violence and torture (OP17).

The OISL Report records disturbing evidence, in shocking detail, of systematic rape, sexual assault and torture against men and women in military and police custody.46 As such, the resolution reflects international consternation concerning this issue. It is clear that existing investigative processes have not yielded any results in stemming the tide of impunity. As such, and until other Transitional Justice mechanisms including a special judicial mechanism are instituted, it is important that an independent authority with the capacity and credibility to investigate these crimes be mandated to conduct investigations.


1. Nominate and mandate an appropriately empowered and independent authority (for example, the National Human Rights Commission) to investigate all public reports of sexual violence and torture.

Section 14 of the Human Rights Commission Act No. 21 of 1996 empowers the Commission to:

…on its own motion or on a complaint made to it by an aggrieved person or group of persons or a person acting on behalf of an aggrieved person or a group of persons, investigate an allegation of the infringement or imminent infringement of a fundamental right of such person or group of persons caused-
 (a) by executive or administrative action; or
(b) as a result of an act which constitutes an under the Prevention of terrorism Act, No. 48 of 1979, committed by any person.

Thus, the government could request the Commission to investigate all public reports of sexual violence and torture ex mero motu; or request the Commission on behalf of the aggrieved persons in respect of whom the State has a duty to protect and promote their fundamental rights, to investigate these allegations.

This step could be implemented within the short term.

2. Adequately resource, staff and train such authority to conduct investigations.

The investigation of sexual violence, particularly in conflict, requires expert personnel trained in conducting such investigations. These resources must be made available to the Commission.

This step could be implemented within the medium term.

3. Where evidence exists of sexual violence and torture, take steps forthwith to prosecute perpetrators of such crimes.

This step could be implemented within the medium term.

4. Ensure administrative steps are taken to provide counselling, support and reparation for victims of sexual and gender-based violence and torture.

This step too could be implemented within the medium term.

D. Investigate all alleged attacks by individuals and groups on journalists, human rights defenders, members of religious minority groups and others members of civil society, as well as places of worship, and hold perpetrators of such attacks to account (OP11).

This paragraph in the resolution is an near verbatim reproduction of operative paragraph 4 of HRC Resolution 25/1 relating to Sri Lanka passed at the Human Rights Council in March 2014.47

With OP11, the onus now passes on the new government to investigate such attacks. Despite some progress with respect to a small number of emblematic cases, the vast majority of attacks described have not been sufficiently investigated or dealt with.

1. Nominate and mandate an appropriately empowered and independent authority to investigate all public reports of attacks on various categories.

To fully implement the government‘s commitment, and given the inevitable delays in investigations, a special unit within the police or otherwise could be tasked to investigate the attacks described in the resolution, at least until other Transitional Justice mechanisms are unveiled.

This step could be implemented within the short term.

2. Adequately resource, staff and train such authority to conduct investigations.

This step could be implemented within the medium term.

3. Where evidence exists, take steps forthwith to prosecute perpetrators of such crimes.

This step could be implemented within the medium term.

IV. Legal and Institutional Reforms.

COMMITMENT:  Review the witness and victim protection law and strengthen protections by making specific accommodations to protect effectively witnesses and victims (OP9). 

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1. Appoint and mandate a body to review the witness and victim protection law and recommend amendments.

2.  Obtain Cabinet approval to amend the witness and victim protection law.

3. Gazette a draft Bill to amend the witness and victim protection law and place it on the Order Paper of Parliament

4. Ensure passage of the Bill through Parliament.

5. Make appointments to a reconstituted Witness and Victim Protection Authority and the Witness and Victim Protection Division in terms of the amended Act of Parliament.

6.  Take logistical steps necessary to equip, resource, staff and train officers in the Authority and the Division.

7. Provide continued support including funding for the work of implementing the Act. 

 

COMMITMENT:   Review and replace the Prevention of Terrorism Act (PTA) with antiterrorism legislation in accordance with international best practices and review the Public Security Ordinance (PSO) (OP12).

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1. Appoint and mandate a body to review the PTA and the PSO and recommend anti-terrorism legislation in line with international best practices.

2. Obtain Cabinet approval to repeal the PTA, and if necessary the PSO, replacing existing legislation with antiterrorism legislation in line with international best practices.

3. Gazette the Bill to repeal and replace the PTA, and if necessary the PSO, and place it on the Order Paper of Parliament

4. Ensure passage of the Bill to repeal and replace the PTA, and if necessary the PSO, through Parliament.

 

 

 

COMMITMENT:  Issue certificates of absence to the families of missing persons as a temporary measure of relief (OP13).

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1. Devise a plan for and obtain Cabinet approval to amend existing provisions to enable issuance of certificates of absence.   

2. Gazette a Bill enabling issuance of certificates of absence, and place it on the Order Paper of Parliament

3. Ensure passage through Parliament of the Bill.   

4. Take logistical steps necessary to equip, resource, staff and train officers responsible for issuing certificates of absence and those involved in the provision of social services and welfare. 

5.  Provide continued support including funding for the work of providing certificates of absence as a temporary measure of relief.

 

COMMITMENT:  Achieve a political settlement by taking the necessary constitutional measures and fulfill its commitments on the devolution of political authority (OP16).

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1. Mandate a body to conduct national consultations on constitutional measures to be undertaken.   

2. Establish a forum for the discussion and negotiation of constitutional reform.

3. Formulate provisions for constitutional measures fulfilling, inter alia, the government‘s commitments on the devolution of political authority.   

4. Obtain Cabinet approval for constitutional measures addressing, inter alia, the issue of devolution.   

5. Gazette a Bill for the amendment/replacement of the Constitution and place it on the Order Paper of Parliament. 

6. Ensure Bill on constitutional measures addressing, inter alia, the issue of devolution finds passage through Parliament.  

7. Ensure Bill is approved at a referendum.

 

COMMITMENT:  Establish an Office for Reparations (OP4).

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1. Formulate a national reparations policy, considering the specific needs of each category of victims, including women and children.

2. Obtain Cabinet approval to establish an Office for Reparations. Ensure this office is able to implement reparations related recommendations of other TJ mechanisms including the special court, Office for Missing Persons and the Truth, Justice, Reconciliation and NonRecurrence Commission.   

3. Gazette a Bill to establish an Office for Reparations, giving it the freedom to obtain financial, material and technical assistance from international partners, including OHCHR.   

4. Ensure passage of Bill through Parliament.  

5.  Take logistical steps necessary to equip, resource, staff and train officers in the Office for Reparations.

6. Make allocations for reparations in each year‘s budget until conclusion of the reparations programme.

 

 A. Review the witness and victim protection law and strengthen protections by making specific accommodations to protect effectively witnesses and victims (OP9).

In February 2015, shortly after the new government came into power, it secured the passage through Parliament of the Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of. 2015. The Act was drafted by the previous government, but had not been passed.

The question of witness and victim protection assumed greater significance after the new government came into power, particularly given its commitments on accountability and Transitional Justice. Thus, the content of the new Act and the sufficient of the protection afforded by its provisions came into sharper focus. In August 2015, SACLS published a paper highlighting the main weaknesses of the new Act.48 These are: excessive weightage towards ex-officio and state sector membership in the Witness and Victim Protection Authority; the Witness and Victim Protection Division‘s lack of independence from the regular police hierarchy; the absence of clear criteria to assess whether a victim or witness requires protection; the absence of provision for international relocation; and the overly restrictive rules relating to the provision of audio-visual testimony.

The OISL Report released thereafter echoed the identical concerns, and recommended that the government review the Act with a view to incorporating better safeguards for the independence and effectiveness of the witness protection programme.49 Further, Minister Samaraweera‘s speech committed Sri Lanka to a review of the Act.50

It was in this background that the paragraph on witness and victim protection came to be included in the resolution.

Notwithstanding these commitments, the government has since proceeded to appoint members to the Authority,51 and there appears to be no progress in revising the Act, despite OHCHR experts making themselves available to the government for this specific purpose. As originally feared, the membership of the Authority is heavily state-centric, with no participation of civil society actors or those with expertise in protection.

1. Appoint and mandate a body or group of persons to review the witness and victim protection law and recommend amendments.

This is a relatively straightforward step as the main weaknesses of the Act have already been identified. This step could be implemented within the short term.

2. Obtain Cabinet approval to amend the witness and victim protection law.

This step could be implemented within the short term.

3. Gazette a draft Bill to amend the witness and victim protection law and place it on the Order Paper of Parliament.

This step too could be implemented within the short term. What is required are a few critical amendments to the existing provisions of the Act.

4. Ensure passage of the Bill through Parliament.

This step could be implemented within the medium-term.

5. Make appointments to a reconstituted Witness and Victim Protection Authority and the Witness and Victim Protection Division in terms of the amended Act of Parliament.

This step could be implemented within the medium term.

6. Take logistical steps necessary to equip, resource, staff and train officers in the Authority and the Division.

This step could be implemented within the medium term.

7. Provide continued support including funding for the work of implementing the Act.

This step would have to be implemented over the long term.

B. Review and replace the Prevention of Terrorism Act (PTA) with anti-terrorism legislation in accordance with international best practices and review the Public Security Ordinance (PSO) (OP12).

The PTA is a draconian piece of legislation. Notably, the PTA was initially conceived as a temporary piece of legislation, reflected in the title of the Act which describes it as a "Temporary Provisions" Act. Despite this, the Act later became a permanent feature of Sri Lanka‘s legal architecture. A report by the International Commission of Jurists described the Act as:

These provisions are quite extraordinarily wide. No legislation conferring even remotely comparable powers is in force in any other free democracy operating under the Rule of Law, however troubled it may be by politically motivated violence.52

The Act has also been responsible for many cases of torture and disappearance, as the regular protections afforded to suspects under the ordinary law were eviscerated by the PTA. In particular, the following features are among the most odious of the PTA‘s provisions: the possibility of executive detention through detention orders for a period of up to 18 months; confessions made to a police officer in custody being admissible in criminal proceedings against a suspect; the exclusion of judicial review for detention orders; and the non-availability of bail for suspects arrested under the PTA and pending trial.

Successive Sri Lankan governments have repeatedly been requested to repeal the PTA and replace it with a law consistent with international law and best practices. The OISL Report also repeated this demand. Minister Samaraweera‘s speech, in September 2015, committed Sri Lanka to repeal and replace the PTA and review the PSO53.

It is now public knowledge that the Law Commission has been working on a draft to review the PTA and suggest revisions.54

1. Appoint and mandate a body to review the PTA and the PSO and recommend antiterrorism legislation in line with international best practices.

This appears to have been done in respect of the PTA. However, there is yet no known attempt to review the PSO.

This step could be implemented within the short term. Indeed, it appears to have already been completed in respect of the PTA.

2. Obtain Cabinet approval to repeal the PTA, and if necessary the PSO, replacing existing legislation with anti-terrorism legislation in line with international best practices.

This step could be implemented within the short term.

3. Gazette the Bill to repeal and replace the PTA, and if necessary the PSO, and place it on the Order Paper of Parliament.

This step could be implemented within the short term.

4. Ensure passage of the Bill to repeal and replace the PTA, and if necessary the PSO, through Parliament.

This step could be implemented within the medium term.

C. Issue certificates of absence to the families of missing persons as a temporary measure of relief (OP13).

Uncertainty surrounding the legal status of the disappeared affects family members in tangible ways. Family members are often unwilling to accept that their family members are dead, and thus are unwilling—even when legal options permit—to obtain certificates of death or other legal recognition of death. However, absent documentation establishing death, they are often excluded from access to social services and compensation provided to those whose family members are deceased, the possibility of remarriage, access to bank accounts, access to pensions; and legal succession to the disappeared person‘s estate. It is in this context that countries that have faced a high number of enforced disappearances have had recourse to 'certificates of absence‘ to be given to family members.

As CPA notes in a recent briefing paper:

A 'Certificate of Absence‘, as conceived here, would be an official document issued to family members of the disappeared persons, affirming their status as "missing" as opposed to "deceased." This option has been used in countries that experienced high numbers of disappearances, based on the perception that it is better tailored to balance family members‘ emotional and psychological needs without dismissing the need for active investigation into cases of disappearances.55

The OISL Report did not explicitly recommend the issuance of certificates of absence. Instead, it only called for amending legislation to ensure that those who receive certificates of death in respect of their family members are not prevented from pursuing judicial cases to determine what happened to their loved ones.56

However, Minister Samaraweera‘s speech to the Council did state that Sri Lanka was committed to issuing certificates of absence to families of the missing as a temporary measure of relief. This commitment was thereafter included in the resolution.

1. Design a plan for and obtain Cabinet approval to amend existing provisions to enable issuance of certificates of absence.

This step could be implemented within the short term. Cabinet approval appears to have already been received.57

2. Gazette a Bill enabling issuance of certificates of absence, and place it on the Order Paper of Parliament.

This step could be implemented within the short term.

3. Ensure passage through Parliament of the Bill.

This step could be implemented within the medium term.

4. Take logistical steps necessary to equip, resource, staff and train officers responsible for issuing certificates of absence and those involved in the provision of social services and welfare.

This step could be implemented within the medium term.

5. Provide continued support including funding for the work of providing certificates of absence as a temporary measure of relief.

This step would have to be implemented over the long term.

D. Achieve a political settlement by taking the necessary constitutional measures and fulfill its commitments on the devolution of political authority (OP16).

Issues not directly related to human rights are seldom included within the text of Human Rights Council resolutions. However, Minister Mangala Samaraweera‘s speech to the Council declared that the "best guarantee for non-recurrence is of course a political settlement that addresses the grievances of the Tamil people."58 Because guarantees of non-recurrence are inherently part of the right to remedy under international human rights law, thus linking a political settlement with human rights, the efforts of those seeking inclusion of this commitment in the text of the resolution eventually bore success. Now that the commitment is included in the text of the resolution, Sri Lanka would be expected to implement it.

1. Mandate a body to conduct national consultations on constitutional measures to be undertaken.

Implementation of this step has already commenced.

2. Establish a forum for the discussion and negotiation of constitutional reform.

There have been some delays in establishing a Constitutional Assembly in which the entire Parliament sits in Committee, but owing to political wrangling over the resolution prepared to constitute the Assembly, this step has been delayed.

3. Formulate provisions for constitutional measures fulfilling, inter alia, the government’s commitments on the devolution of political authority.

This step could be implemented within the medium term.

4. Obtain Cabinet approval for constitutional measures addressing, inter alia, the issue of devolution.

This step could be implemented within a year, within the medium term.

5. Gazette a Bill for the amendment/replacement of the Constitution and place it on the Order Paper of Parliament.

This step could be implemented within a year, within the medium term.

6. Ensure Bill on constitutional measures addressing, inter alia, the issue of devolution finds passage through Parliament.

This step could only be implemented over the long term.

7. Ensure Bill is approved at a referendum.

This step could only be implemented over the long term.

E. Establish an Office for Reparations (OP4).

Reparations is an important but understudied aspect of Transitional Justice. Reparations typically involve restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.59 Typically, though not always, reparations policies are undertaken after other Transitional Justice mechanisms such as Truth Commissions have been implemented. These Commissions often make wide-ranging recommendations for reparations, and sometimes identify victims entitled to reparations. Nevertheless, there are strong arguments supporting the institution of reparations programmes at the early stage of Transitional Justice, to build trust and acknowledge the dignity of victims.60

Minister Mangala Samaraweera in outlining the government‘s Transitional Justice policies at the Human Rights Council stated that an Office for Reparations would be set up by statute "to facilitate the implementation of recommendations relating to reparations made by the proposed Commission on Truth, Justice, Reconciliation and Non-recurrence, the Office of the Missing Persons, the LLRC and any other entity".61 This suggests that the Office may be sequenced to follow other mechanisms in time, but this is by no means a foregone conclusion.

1. Formulate a national reparations policy, considering the specific needs of each category of victims, including women and children.

The OISL Report recommended that the government formulate of a national reparations policy in consultation with victims.62 This function could be played by a new Office of Reparations, but there is no reason why the government cannot formulate an interim policy until the relevant mechanisms are established.

This step could be implemented within the short term.

2. Obtain Cabinet approval to establish an Office for Reparations.

This step could be implemented within the short term.

3. Gazette a Bill to establish an Office for Reparations, giving it the freedom to obtain financial, material and technical assistance from international partners, including OHCHR.

This step could be implemented within the short term.

4. Ensure passage of Bill through Parliament.

This step could be implemented within a few months, and thus could feasibly be completed within the medium term.

5. Take logistical steps necessary to equip, resource, staff and train officers in the Office for Reparations.

This step could also be implemented within the medium term.

6. Make allocations for reparations in each year’s budget until conclusion of the reparations programme.

This step would involve substantial budgetary implication, and thus could only be implemented over the long term.

V. Security Sector Reform.

 

COMMITMENT:  Institute a fair administrative process to ensure that no scope exists for the retention in or recruitment into the security forces of anyone credibly implicated in serious crimes involving human rights violations or IHL (OP8).

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1. Appoint and mandate a body of experts to design a vetting and lustration process for Sri Lanka

2.  Obtain Cabinet approval to institute a vetting and lustration process.    

3. Gazette a draft Bill that would establish a vetting and lustration process, with provision for administrative appeals and the possibility of judicial appeals.  

4. Ensure passage of the Bill through Parliament.

5.  Take logistical steps necessary to equip, resource, staff and train those mandated to carry out vetting and lustration.  

6.  Provide continued support including funding for the work of vetting and lustration

 

COMMITMENT: Increase training and incentives for the protection and promotion of human rights (OP8).  

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1.  Increase training and incentives for the protection and promotion of human rights

   

 

COMMITMENT: End military involvement in civilian activities (OP10).

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1. Establish deadlines for ending military involvement in different sectors: i.e. – tourism; retailing; transport; construction and road works; civilian administration etc.

2. Communicate these deadlines clearly to all relevant military functionaries; in particular through a Presidential directive

3. Establish a body empowered to report on and monitor compliance with deadlines, and to temporarily manage any assets, properties or monies associated with businesses or enterprises run by the military.

4. Take effective steps to ensure compliance with deadlines, including through, if necessary, the use of disciplinary measures.

5. Transfer the businesses and enterprises previously run by the military to civilian run state or nonstate management and ownership.

 

COMMITMENT: Issue instructions clearly to all branches of the security forces that violations of IHRL and IHL, including those involving torture, rape and sexual violence, are prohibited and that those responsible will be investigated and punished (OP17).

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1. Issue instructions clearly to all branches of the security forces that violations of IHRL and IHL, including those involving torture, rape and sexual violence, are prohibited and that those responsible will be investigated and punished.

   

 

COMMITMENT: Accelerate the return of land to their rightful civilian owners (OP10).

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1. Establish deadlines for the handover of lands expropriated by the military.   

2. Communicate these deadlines clearly to all relevant military functionaries; in particular through a Presidential directive.

3. Establish a body empowered to report on and monitor compliance with deadlines.   

4. Take effective steps to ensure compliance with deadlines, including through, if necessary, the use of disciplinary measures.

5. Provide financial, material and administrative support for those returning to their lands previously occupied by the military.

6. Continue to support through financial and administrative means the resettlement in lands by rightful owners 

 

A. Institute a fair administrative process to ensure that no scope exists for the retention in or recruitment into the security forces of anyone credibly implicated in serious crimes involving human rights violations or IH (OP8).

Vetting and lustration are important elements of integrated Transitional Justice solutions to countries which face a legacy of past abusive conduct, particularly by the security sector.63 By removing those responsible for violations from the military, or preventing them being recruited, countries that undergo vetting mechanisms help build trust in the new dispensation, address the 'impunity gap‘—the inevitable gap between crimes committed and individuals prosecuted—and also build a more secure future in which the chances of recurrence are significantly lower than they would have been without engaging in what is always a fraught and difficult process. For this reason, vetting programmes must be undertaken with a substantial degree of care. Further, it is essential that the rights of all concerned—including employees in the state sector—are protected throughout the process. Vetting programmes are thus very different to mass scale purges of the state or security sector sometimes undertaken by new governments.

Vetting and lustration programmes are also very politically sensitive. For this, they are best sequenced to be undertaken at a time when public support for Transitional Justice measures are high. Moreover, to avoid panic within the ranks, vetting programmes must be preceded by an effective public information campaign setting out precise criteria by which the programme would be undertaken. The relevant procedures must also be laid down with clarity.

There are a number of potential models to choose from. One model would involve screening of all members of the officer corps, and ensuring that promotions are denied those credibly implicated in human rights abuses. Another possible model is a more ambitious identification of those responsible for violations and excluding them from service. The political risks of a large scale removal of potentially dangerous individuals from the security sector and reintroducing them into society would however have to be handled with care.

The OISL Report recommended a fully-fledged vetting process respecting due process to remove from office military and security force personnel and other public officials where there are reasonable grounds to believe they were involved in human rights violations.64 The UNHRC resolution thereafter echoed these concerns.

1. Appoint and mandate a body of experts to design a vetting and lustration process for Sri Lanka.

Vetting programmes are highly sensitive and must be tailored specifically to the needs of the particular country, and of the particular security service concerned. To carry out the task of designing a vetting process, a team comprising local and international experts would ideally first be assembled. This team should comprise international experts in security sector reform and domestic experts.

It is vital that these experts are given the time and space to evolve a programme best suited to Sri Lanka. However, mandating such a team is an administrative step and could be undertaken in the short term.

2. Obtain Cabinet approval to institute a vetting and lustration process.

Once the team identifies a potential strategy or strategies, Cabinet must approve the proposed programme. Given the time necessary to develop a vetting programme, this step would have to be implemented within the medium term.

3. Gazette a draft Bill that would establish a vetting and lustration process, with provision for administrative appeals and the possibility of judicial appeals.

This step could be implemented within the medium term.

4. Ensure passage of the Bill through Parliament.

This step could be implemented within the medium term.

5. Take logistical steps necessary to equip, resource, staff and train those mandated to carry out vetting and lustration.

This step would have to be implemented over the long term.

6. Provide continued support including funding for the work of vetting and lustration.

This step would have to be implemented over the long term.

B. Increase training and incentives for the protection and promotion of human rights (OP8).
1. Increase training and incentives for the protection and promotion of human rights.

This is a simple administrative step and could be implemented within the short term.

C. End military involvement in civilian activities (OP10).

The Rajapaksa presidency and in particular, the post-war years of the Rajapaksa presidency, was characterized by the proliferation of military owned businesses and civilian activities in a variety of sectors. By running business operations as well as engaging in regular governance activities, the military became entrenched in the civilian landscape in the North and East.

This phenomenon poses risks to the economy, particularly in the North and East which is slowly attempting to recover from the costs of protracted conflict. The crowding out of commercial space for private entrepreneurs by heavily subsidized competition from the military skews economic factors and distorts the economy. Moreover, the military‘s involvement in business could also have a corrosive impact on the military and on the larger health of Sri Lanka‘s democracy.

The new government has repeatedly committed itself to restore the dignity of soldiers by limiting their employment to military functions and also to remove the military from civilian activities. Minister Samaraweera‘s speech referred to the government‘s intention to ensure "disengagement of the military from commercial activities".65 Despite these assurances, the military continues to run business establishments openly in the North and East. The disengagement of the military from commercial activities will not take place overnight. It would require a phased out plan to transfer ownership of some of these activities to the state or private sector where appropriate, and in others, end the running of certain establishments.

1. Establish deadlines for ending military involvement in different sectors: i.e. – tourism; retailing; transport; construction and road works; civilian administration etc.

The first step that ought to be undertaken is to establish feasible deadlines for ending military involvement on a sector by sector basis. Clearly, ending the running of hotels and other large infrastructure projects could take longer than the closing down of retail outlets. These deadlines could be arrived at in consultation with the military.

This step could be implemented within the short term.

2. Communicate these deadlines clearly to all relevant military functionaries; in particular through a Presidential directive.

These deadlines must have the force of an order, which would require a Presidential decree by the Commander-in-Chief.

The communication of this directive could and should take place within the short term.

3. Establish a body empowered to report on and monitor compliance with deadlines, and to temporarily manage any assets, properties or monies associated with businesses or enterprises run by the military.

To ensure compliance with deadlines, an independent body—possibly a Presidential Task Force under Article 33(f) of the Constitution—must be empowered to monitor and report on compliance. This body could also be empowered to temporarily manage the transfer of business assets to the state of private sector, as appropriate.

This step could be implemented within the medium term.

4. Take effective steps to ensure compliance with deadlines, including through, if necessary, the use of disciplinary measures.

The termination of military involvement in commercial activities must not be seen as an optional or voluntary exercise. It must be enforced. This step could be implemented within the medium term.

5. Transfer the businesses and enterprises previously run by the military to civilian run state or non-state management and ownership.

This step would have to be implemented over the long term.

D. Issue instructions clearly to all branches of the security forces that violations of IHRL and IHL, including those involving torture, rape and sexual violence, are prohibited and that those responsible will be investigated and punished (OP17).

It is notable that despite the lapse of several months since the adoption of the resolution, this simple commitment has not been implemented.

This requires a simple communication from the President or other appropriate authority. It could be implemented within the short term.

E. Accelerate the return of land to their rightful civilian owners (OP10).

The new government has presided over the handing over to civilians of substantial tracts of land, Nevertheless, the military continues to hold vast areas of private and state land in the Northern and Eastern provinces. The government has repeatedly promised that owners should and will be able to be resettled in their own lands. However, there are significant delays in doing so, and it is unclear if the government intends to compel the military to hand over all private lands in the Valikamam area where the military continues to hold over 4,000 acres of private land.

1. Establish deadlines for the handover of lands expropriated by the military.

Similar to disengagement from commercial activities, progress in this area also requires clear deadlines being established. The President himself has announced certain ad hoc deadlines in public, most recently where he announced that 100,000 displaced persons would be resettled in a period of six months.66 These deadlines must be transformed into tangible policy positions.

2. Communicate these deadlines clearly to all relevant military functionaries; in particular through a Presidential directive.

Similar to the issue of terminating military involvement in commercial activities, directives concerning the release of lands must have the force of an order, which would require a Presidential decree by the Commander-in-Chief.

The communication of this directive could and should take place within the short term.

3. Establish a body empowered to report on and monitor compliance with deadlines.

This step could be implemented within the medium term.

4. Take effective steps to ensure compliance with deadlines, including through, if necessary, the use of disciplinary measures.

This step could be implemented within the medium term.

5. Provide financial, material and administrative support for those returning to their lands previously occupied by the military.

This step could be implemented within the medium term.

6. Continue to support through financial and administrative means the resettlement in lands by rightful owners.

This step would have to be implemented over the long term.

VI. General Commitments on Transitional Justice and Human Rights.

 

COMMITMENT: Engage in broad national consultations with the inclusion of victims and civil society, including NGOs, from all affected communities which will inform the design and implementation of TJ processes, drawing on international expertise, assistance and best practices (OP3).

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1. Appoint and mandate a body to conduct national consultations.   

2. Adequately resource the body conducting consultations.   

3. Take positive steps to ensure the safety and security of all those participating in consultations.   

4. Release publicly the Report of the body conducting consultations.   

5. Facilitate availability of international expertise and assistance to body conducting consultations.

6. Ensure outcome of consultations informs the design and implementation of TJ mechanisms.

7. Continue to engage in consultations with victims and other stakeholders throughout the process.

 

COMMITMENT: Continue engagement with the High Commissioner and OHCHR in the promotion and protection of human rights. Also engage with the High Commissioner and OHCHR in exploring appropriate forms of international support for and participation in Sri Lankan truth and justice processes (OP2).

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1. Request the High Commissioner to assist in identifying suitable international personnel to function as judges, lawyers prosecutors and investigators in the judicial mechanism.

2. Engage with the High Commissioner in exploring forms of financial, material and technical assistance from international partners in respect of non-judicial TJ mechanisms.

 

 

COMMITMENT: Continue to co-operate with special procedure mandate holders, including by responding formally to outstanding requests (OP19).  

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1. Respond formally to outstanding requests OR issue a standing invitation to all thematic special procedure mandate holders.   

2. Fix dates for visits in respect of outstanding requests for visits by special procedures mandate holders.   

 

COMMITMENT: Sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearance without delay (OP13).

Short term (within 3 months)

Medium term (within 12 months)

Long term (more than one year)

1. Sign the Convention.   
2. Ratify the Convention.

 

 

 

A. Engage in broad national consultations with the inclusion of victims and civil society, including NGOs, from all affected communities which will inform the design and implementation of TJ processes, drawing on international expertise, assistance and best practices (OP3).

National consultations on the design and implementation of Transitional Justice mechanisms have become a sine qua non of a sensible, victim-centric Transitional Justice policy. Consultations are undertaken for a number of reasons in that they: help elicit the views of those whose voices may otherwise not be heard in decision making forums; create a sense of broad ownership over Transitional Justice mechanisms; help restore the dignity and equal citizenship of victims; and provide a forum for the dissemination of information to communities and victims about envisaged plans.

An important issue arises in respect of the length of time during which consultations must be conducted. This is a politically relevant decision, because comparative experiences from other countries demonstrate that political momentum for Transitional Justice is a finite and eroding resource, and that once this momentum is lost, it is very difficult to initiate mechanisms considered entirely feasible when momentum was available. As a result, despite the best of intentions, long drawn out consultations which eat into valuable time could harm Transitional Justice in the long run. A case in point is that of Nepal, where the Office of the High Commissioner helped conduct an 18 month process of consultations according to international best practices. However, by the time consultations were concluded, the available momentum and political space had inevitably shrunk, rendering progress on Transitional Justice more of a challenge than it otherwise would have been.

1. Appoint and mandate a body to conduct national consultations.

A 11-member Task Force on consultations has already been mandated, and consultations commenced formally in Jaffna at a town hall meeting.67 The official website states that consultations will take place between 12 February 2016 and mid-April.

The Special Rapporteur for Transitional Justice who consulted with the Task Force during his visit earlier this month commended the government for appointing a team "made up entirely of representatives of civil society with a long trajectory in the defense of human rights."68

This step has been implemented within the short term.

2. Adequately resource the body conducting consultations. The United Nations Peace Building Fund is understood to be supporting consultations.69

This step could be implemented in the short term.

3. Take positive steps to ensure the safety and security of all those participating in consultations.

The Task Force reportedly met senior military figures to brief them on consultations and obtain guarantees that the security of participants would not be undermined. However, it is unclear what specific steps the government has undertaken to guarantee security to participants and freedom from reprisals.

This step would have to be implemented within the short term.

4. Release publicly the Report of the body conducting consultations.

Members of the Task Force have publicly guaranteed that the Report will be released publicly by the government, and that in the event the government does not, members of the Task Force will do so themselves.70

Given the suggested end-date of mid-April 2016, this step would have to be concluded within the short term.

5. Facilitate availability of international expertise and assistance to body conducting consultations.

This appears already to have been done, through the engagement of the Special Rapporteur with the Task Force. It has been undertaken within the short term.

6. Ensure outcome of consultations informs the design and implementation of TJ mechanisms.

This aspect is crucial, as the credibility of the process will depend largely on whether the government is willing to listen to the voices of victims and others in designing processes of reconciliation. This step would have to be undertaken in the medium term.

7. Continue to engage in consultations with victims and other stakeholders throughout the process.

Consultations should not be a one-off exercise, but must continue throughout the process. This would therefore have to be implemented over the long term.

B. Continue engagement with the High Commissioner and OHCHR in the promotion and protection of human rights. Also engage with the High Commissioner and OHCHR in exploring appropriate forms of international support for and participation in Sri Lankan truth and justice processes (OP2).

The resolution clearly envisaged the engagement of the government with the High Commissioner in exploring appropriate forms of international support for a participation in Transitional Justice mechanisms. Sri Lanka must undertake this commitment seriously, including by consulting with the High Commissioner on the personnel who could participate in judicial mechanisms, but also the nature of support necessary for non-judicial mechanisms.

1. Request the High Commissioner to assist in identifying suitable international personnel to function as judges, lawyers prosecutors and investigators in the judicial mechanism.

This step could be implemented within the short term.

2. Engage with the High Commissioner in exploring forms of financial, material and technical assistance from international partners in respect of non-judicial TJ mechanisms.

This step could be implemented within the medium term, once specific proposals concerning each non-judicial mechanism emerges.

C. Continue to co-operate with special procedure mandate holders, including by responding formally to outstanding requests (OP19).

On 17 December 2015, Sri Lanka took the commendable step of issuing a standing invitation to all special procedures mandate holders.71

1. Respond formally to outstanding requests OR issue a standing invitation to all thematic special procedure mandate holders.

This step has already been implemented within the short term.

2. Fix dates for visits in respect of outstanding requests for visits by special procedures mandate holders.

Now that standing invitations have been issued, Sri Lanka must fix dates with the special procedures who had made outstanding requests for visits at the time the standing invitation was made.

D. Sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearance without delay (OP13).

Civil society activists and victims have long demanded that Sri Lanka ratify the Convention on Enforced Disappearances. The OISL also made this recommendation.72 Minister Samaraweera‘s speech committed Sri Lanka to "sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearances without delay."73

1. Sign the Convention.

On 10 December 2015, Sri Lanka signed the Convention.74 This step was implemented in the short term.

2. Ratify the Convention.

In comments to the press, Minister Samaraweera has noted that Sri Lanka would ratify the Convention once enabling legislation was finalized.75 Presumably, this enabling legislation refers to, among others, criminalizing enforced disappearances.

VII. Conclusion.

The UNHRC Resolution 30/1 on Sri Lanka which the government co-sponsored sets out an ambitious reform agenda for Sri Lanka in the areas of human rights and Transitional Justice. Never before in Sri Lanka‘s history has any government embarked on an effort to deal with the past on the scale and manner currently undertaken. International pressure has been a centrally important driver in ensuring that Transitional Justice remained on Sri Lanka‘s post-war and postRajapaksa agenda. Nevertheless, with the government‘s ownership of the resolution through its act of co-sponsorship, Sri Lanka now has an opportunity to turn a corner and use the terms of the resolution as a roadmap to achieve meaningful reconciliation amongst its Peoples. To do so, it is essential that good faith efforts are made to fully implement that which the government voluntarily undertook to deliver. This Report attempts to contribute to that effort by clarifying the steps necessary to fully implement the government‘s commitments on Transitional Justice. If substantial progress could be made on each of the steps outlined in this Report, Sri Lanka could proudly claim to have won the hearts of the world, and more importantly, done justice to the many victims who now bravely demand what is rightly theirs.

 

PAGE 53-54 GRAPHICS HERE

Annexure I: Statement by Foreign Minister Samaraweera at the General Debate of the 30th Session of the UN Human Rights Council, 14 September 201576.

Mr. President
High Commissioner for Human Rights
Excellencies
Distinguished delegates

I would like to begin by thanking you, and the members of the Council for the trust reposed in Sri Lanka at the 28th Session and agreeing to defer the release of the Report of the OHCHR Investigation on Sri Lanka.

The time granted by the Council gave the Government much needed space to begin implementing its reform agenda, renew its engagement with the international community, including the High Commissioner for Human Rights, and his Office, and start taking steps aimed at achieving meaningful reconciliation, strengthening democratic institutions, good governance, the rule of law, and confidence building among communities affected by conflict for many years.

Mr. President,

The victory of the United National Front for Good Governance (UNFGG) at the Parliamentary election last month, enabled President Sirisena and Prime Minister Ranil Wickremesinghe to form a National Unity Government. Traditional rivals in Sri Lankan politics – the United National Party (UNP) and the Sri Lanka Freedom Party (SLFP) thus came together, heralding a new culture of consensual politics in the country and creating much needed political and policy stability.

An important feature in the August 17th election was the return of centrists to power in the legislature and the resounding defeat of extremists on both sides of the divide. As a result, the moderates in Parliament have once again secured power which augers well for progressive reform. This includes ensuring that the universal values of equality, justice, and freedom are upheld by fostering reconciliation between communities and securing a political settlement.

Inaugurating the 8th Parliament just two weeks ago on the 1st of September, President Sirisena drew from the example of South Africa where the main political parties came together at a historic moment in that country. He affirmed that similarly, in the post-conflict context in Sri Lanka, the formation of a National Unity Government is essential to obtain the bipartisan consensus that is necessary to face the important challenges before our nation, which include reconciliation and peacebuilding.

Upholding good governance practices, the Parliament, on 1st September, rightly appointed as the Leader of the Opposition, the head of the Tamil National Alliance, Mr. R. Sampanthan, who is the leader of the Party that obtained the third highest number of votes at the election.

The appointment of the Tamil National Alliance leader as Leader of the Opposition, as well as the appointment of the 44th Chief Justice of Sri Lanka in January were clear messages that in the new Sri Lanka, extraneous considerations such as ethnicity, religion, class or gender would not be used to deny anyone their rightful place.

Mr. President,

From May 2009 post-conflict reconciliation eluded us as a result of the short-sighted policies and the triumphalist approach that was adopted immediately following the end of the conflict. The National Unity Government is now approaching reconciliation afresh as a matter of urgent priority.

As a Government that is responsible and accountable to her people, the National Unity Government remains firm in its resolve to do right by the people of the country, not in the least because of assurances given to the international community at any point in time, but because this is the only path available to ensure justice, remove the causes of terrorism and achieve a durable peace for the long-suffering people in our country.

Mr. President,

As you would agree, reconciliation is a process and it will take time. Many, I know are impatient. We understand their impatience and their right to be so. However, this process must be carefully planned. Our nation has faltered far too many times since Independence and we cannot afford to fail once again.

Mr. President,

The Government of Sri Lanka recognises fully that the process of reconciliation involves addressing the broad areas of truth seeking, justice, reparations and non-recurrence and for nonrecurrence to become truly meaningful, the necessity of reaching a political settlement that addresses the grievances of the Tamil people.

With the mandate granted by the people, the President, Prime Minister, and the Government have already taken some important steps to create the conditions required for initiating a dialogue aimed at a political settlement.

As you are aware, Mr President, item 93 of President Sirisena‘s manifesto in the lead up to the January 2015 election expressed the intention of the common candidate, if elected, to address issues of accountability through national independent judicial mechanisms.

Accountability is essential to uphold the rule of law and build confidence in the people of all communities of our country, in the justice system. We also recognise fully, the importance of

judicial and administrative reform in this process. These are essential factors that must be addressed for the culture of accountability and the rule of law which have eroded through years of violence to once again be ingrained in our society. We recognise how important this is to prevent impunity not only for violations of human rights but corruption and other crimes; and how vital these processes are for the long-term development of our country and for the peace dividend to be felt by all our citizens including generations to come. These are lessons we have not only learnt from the experiences of other countries, but also from our own history and recent past.

The ideas that the Government has evolved for setting up independent, credible and empowered mechanisms for truth seeking, justice, reparations and guarantees of non-recurrence within the framework of the Constitution include the following:

  • For truth seeking, the establishment by statute, of two mechanisms:
    1. a Commission for Truth, Justice, Reconciliation and Non-recurrence to be evolved in consultation with the relevant authorities of South Africa. This mechanism is envisaged as having a dual structure: a 'Compassionate Council‘ composed of religious dignitaries from all major religions in the country and a structure composed of Commissioners. For many victims of human rights abuses, from whichever community, where the perpetrators are unclear for a judicial mechanism to handle, or where the practices of the state and society have resulted in discrimination, this Commission will allow them to discover the truth, understand what happened and help remedy any sense of injustice.
    2. an Office on Missing Persons based on the principle of the families‘ right to know, to be set up by Statute with expertise from the ICRC, and in line with internationally accepted standards.
  • On the Right to Justice, what is being proposed is for a Judicial Mechanism with a Special Counsel to be set up by Statute. This takes into account the right of victims to a fair remedy and aims to address the problem of impunity for human rights violations suffered by all communities. There have been previous instances as well in Sri Lanka when criminal justice mechanisms of different kinds have been set up. This, therefore, is not at all an alien concept. Neither is it aimed at a particularly group of persons, but something that is essential in terms of upholding the rule of law, and creating a society that respects the rule of law.
  • On the Right to Reparations, an Office for Reparations to be set up by Statute to facilitate the implementation of recommendations relating to reparations made by the proposed Commission on Truth, Justice, Reconciliation and Non-recurrence, the Office of the Missing Persons, the LLRC and any other entity;

Mr. President,

In order to guarantee non-recurrence, it is proposed that a series of measures would be undertaken including administrative and judicial reform, and the adoption of a new Constitution. A series of measures including amending the penal code to criminalise hate speech and enforced disappearances are also in process. The best guarantee for non-recurrence is of course a political settlement that addresses the grievances of the Tamil people. We hope that we can achieve this through the adoption of a new Constitution. A Constituent Assembly of Parliament will be set up for this purpose shortly.

Mr. President,

These mechanisms will be evolved and designed through a wide process of consultations involving all stakeholders, including victims. Moreover, each mechanism is envisaged to have the freedom to obtain assistance, both financial, material and technical from our international partners including the OHCHR.

Additionally, Mr. President, the Government is committed to strengthening the National Human Rights Commission in line with the Paris Principles; sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearances without delay; maintain the moratorium on the death penalty with a view to its ultimate abolition; release previous Presidential Commission Reports such as Udalagama and Paranagama by the end of this month; begin issuing Certificates of Absence to the families of the missing as a temporary measure of relief; disengagement of the military from commercial activities; undertake security sector reform; invite a series of Special Rapporteurs to undertake visits to Sri Lanka in 2015 and beyond; issue instructions clearly to all branches of the security forces that torture, rape, sexual violence and other human rights violations are prohibited and that those responsible will be investigated and punished; review and repeal the Prevention of Terrorism Act and replace it with anti-terrorism legislation in line with contemporary international best practices; review the Public Security Ordinance Act; and review the Victim and Witness Protection Act which was enacted this year. Steps are also being taken by the Office of National Unity and Reconciliation to extend psychosocial support to communities and individuals that are in need of such care. The pursuit of engagement of Sri Lankans living overseas belonging to all communities, and inviting them to assist in the Government‘s peacebuilding and reconciliation efforts is another undertaking that we take seriously. In this context, the review of the listing of 16 organisations and 424 individuals last year, under the provisions of UN Security Council Resolution 1373, is currently nearing completion.

Mr. President,

Defeating terrorism in Sri Lanka was a necessity. Today, we have greater freedom to deal with the causes of terrorism and engage in nation-building and peacebuilding as a result of the cessation of hostilities. The armed forces of our country have been hailed in the past for their discipline and professionalism. However, the reputation of the vast majority of the armed forces was tarnished because of the system and culture created by a few in positions of responsibility.

Therefore, to all those who have doubts about a process of accountability, I would like to say, please don‘t fear. Maintain your confidence that a process of this nature would impartially observe due process and, in fact, help restore the good name of the armed forces.

As we restore the credibility of the armed forces, we look forward to further contributing to peace and stability in the world through significantly greater engagement in peacekeeping and humanitarian activities. In fact Sri Lanka recently signed on to the Kigali Principles on the Protection of Civilians.

Mr. President,

Today, we have a Government in place which acknowledges the suffering of victims across Sri Lanka‘s communities; a Government which recognizes the mistakes of the past; and is all too aware of the weaknesses of our institutions. A Government that does not seek to take cover by distorting concepts and principles such as sovereignty for its own selfish ends, but instead remains firmly committed to the welfare of all its citizens, remains open to dialogue, and to address difficulties and deficiencies with help and assistance from the international community where required.

Those who are sceptical about Sri Lanka‘s ability to transform as a nation, and address all these issues, are many. They claim that there can never be justice in Sri Lanka; that there can never be recognition of all communities as equals. All I have to say to them is: look at what the people achieved on the 8th of January. The world had given up hope on Sri Lanka to such an extent that very few believed that what was achieved through democratic means on that day was within the realm of possibility in my country. This feat was repeated on the 17th of August when extremists on both sides of the divide failed to secure seats in Parliament. Therefore, I say to the sceptics: don‘t judge us by the broken promises, experiences and u-turns of the past. Let us design, define and create our future by our hopes and aspirations, and not be held back by the fears and prejudices of the past. Let us not be afraid to dream. Let us not be afraid to engage in meaningful dialogue aimed at finding solutions to problems as opposed to pointing fingers, heaping blame and scoring political points at the expense of future generations.

We are committed and we require the patient understanding not only of the international community but all the right-minded citizens of Sri Lanka in this endeavour; we seek their understanding and assistance in walking hand in hand with us on this journey.

This journey may not be as fast as some may want it to be. And for some, we may have already gone too far. But the Government of President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe has the political will and the courage of their convictions to ensure that we take the country forward, breaking the barriers of ignorance, fear, prejudice and hate.

My plea to you Ladies and Gentlemen, is: trust us and join us to work together and create the momentum required to move forward and take progressive, meaningful and transformative steps to create a new Sri Lanka.

Thank you.

Annexure II: Recommendations contained in the Report of the OHCHR Investigation on Sri Lanka (OISL)77.

Recommendations

General

  1. Develop a comprehensive transitional justice policy for addressing the human rights violations of the past 30 years and preventing their recurrence;
  2. Set up a high-level executive group to develop a coordinated, time-bound plan and oversee progress in implementing the recommendations contained in this report and previous reports by the High Commissioner to the Human Rights Council, as well as relevant outstanding recommendations of the LLRC and past commissions of inquiry;
  3. Invite OHCHR to establish a full-fledged country presence to monitor the human rights situation, advise on implementation of the High Commissioner‘s recommendations and of all HRC resolutions, and provide technical assistance;
  4. Initiate genuine consultations on transitional justice, in particular on truth-seeking, reparations and memorialization, with the public, victims and witness groups, civil society and other stakeholders. These should be accompanied by public education programmes that ensure informed participation in the process; Invite the Special Rapporteur on truth, justice, reparations and guarantees of non-recurrence to continue his engagement so that he accompanies and advises in this process;
  5. Ensure full cooperation with the Special Procedures of the Human Rights Council. Invite the Special Representative of the Secretary-General on conflict-related sexual violence and the Special Representative of the Secretary-General on Children and Armed Conflict, the Special Rapporteurs on extrajudicial killings and torture, the Working Group on Arbitrary Detention and other relevant Special Procedures mandate holders to make early country visits.
Institutional reforms
  1. Ensure that the Constitutional Council is fully operational as soon as possible, so that it can appoint qualified new members of theutmost independence and integrity to key institutions such as the Human Rights Commission of Sri Lanka;
  2. Review legislation to strengthen the Human Rights Commission‘s independence and its capacity to refer cases to the courts;
  3. Initiate action to seek Supreme Court review of its decision in the Singarasa case78 to affirm the applicability of international human rights treaties in domestic law and reinstate the competence of the UN Human Rights Committee to consider individual complaints;
  4. Issue clear, public and unequivocal instructions to all branches of the military and security forces that torture, rape, sexual violence and other human rights violations are prohibited and that those responsible, either directly or as commander or superior, will be investigated and punished. Subject to due process, anyone suspected of being involved in such acts should be immediately suspended until an effective investigation has been completed.  Order and end to all surveillance, harassment and reprisals against civil society actors, human rights defenders and journalists; ;
  5. Prepare an overall plan for security sector reform to ensure the civilian nature, independence and professionalism of the law and order forces, and reducing the role of the military in internal security matters;
  6. Clarify the roles and chain of command for all branches of the security forces, including the different intelligence services, the CID and the TID.
  7. Develop a fully-fledged vetting process respecting due process to remove from office military and security force personnel and any other public official where there are reasonable grounds to believe that they were involved in human rights violations;
  8. Ensure that no member of the Sri Lankan security forces is sent on a UN peacekeeping without vetting to establish that the individual, including commanders, have not in any way been involved in human rights violations or criminal acts.  Any allegations of abuses by Sri Lankan peacekeepers while on peacekeeping duties must be fully investigated by the authorities;
  9. Prioritize the return of private land which has been occupied by the military and end military involvement in civilian activities;
  10. Take immediate steps to identify and disarm groups affiliated with political parties and sever their linkages with security forces, intelligence services and other Government authorities;
  11. Initiate a high-level review of the Prevention of Terrorism Act (PTA) and its regulations and the Public Security Ordinance Act with a view to their repeal and the formulation of a new national security framework fully complying with international law;
Justice
  1. Review the Victim and Witness Protection Act with a view to incorporating better safeguards for the independence and effectiveness of the witness protection programme. Ensure the independence and integrity of those appointed to the Witness Protection Authority and that the police personnel assigned to this program are fully vetted.  Ensure adequate resources for the witness protection system, including with international assistance; Ensure special protection mechanisms for children and victims of sexual violence.
  2. Enact legislation to criminalize war crimes, crimes against humanity, genocide and enforced disappearances, without statute of limitation. Enact various modes of criminal liability, notably command or superior responsibility;
  3. Ratify the International Convention on the Protection of All Persons from Enforced Disappearances, the Additional Protocols to the Geneva Conventions and the Rome Statute of the International Criminal Court;
  4. Adopt specific legislation establishing an ad hoc hybrid special court, integrating international judges, prosecutors, lawyers and investigators, mandated to try war crimes and crimes against humanity, including sexual crimes and crimes committed against children, with its own independent investigative and prosecuting organ, defence office, and witness and victims protection programme.  Resource the court so that it can effectively try those responsible;
  5. Carry out a comprehensive mapping of all pending criminal investigations, habeas corpus, and fundamental rights petitions related to serious human rights violations, as well as the findings of all Commissions of Inquiries where they have identified specific cases, and refer these cases to the special court upon its establishment; Initiate prosecutions in all cases in which the Presidential Commission to Investigate Complaints Regarding Missing Persons has identified perpetrators and prima facie evidence;
  6. Review all of the cases submitted to the Disappearance Investigation Unit and the Missing Persons Unit by the Zonal and All Island Commissions, including in cases where the courts subsequently acquitted the accused, to identify those whichrequire further investigation, including chain of command responsibilities;
  7. Review all the cases of the more than 11,000 individuals perceived or known to be linked to the LTTE reported to have been registered and rehabilitated to account for their current whereabouts to ensure that none subsequently disappeared.
  8. Review all cases of detainees held under the PTA and either release them or immediately bring them to trial.  Review the cases of those convicted under the PTA and serving long sentences, particularly where convictions were based on confessions extracted under torture;
Truth/right to know
  1. Dispense with the current Presidential Commission on Missing Persons and transfer its cases to a credible and independent institution developed in consultation with families of the disappeared;
  2. Develop a central database of all detainees, with independent verification, where relatives can obtain information of the whereabouts of family members detained;
  3. Publish a full gazetted list of all detention centres, and close down any unofficial ones still in existence;
  4. Publish all unpublished reports of the many human rights-related commissions of inquiry, the Presidential Commission on the Missing, and the Army Court of Inquiry into civilian casualties;
  5. Develop a comprehensive plan/mechanism for preserving all existing records and documentation relating to human rights violations, whether held by public or private institutions;
Reparations
  1. Develop a national reparations policy in consultation with victims and their families, considering the specific needs of each victims, including women and children and finance appropriately from the state budget;
  2. Develop and strengthen programmes of psychosocial support for all victims of the conflict;
  3. Amend legislation to ensure that those who have received death certificates for the missing are not prevented from pursuing judicial cases to determine what happened to their loved ones;
  4. Ensure durable solutions for old and new displaced populations through land restitution, resettlement and livelihood support;
To the United Nations system and Member States
  1. Provide technical and financial support for the development of transitional justice mechanisms provided that they meet international standards.  Set up a coordination mechanism among donors in Sri Lanka to ensure focussed and concerted efforts to support the transitional justice process;
  2. Apply stringent vetting procedures to Sri Lankan police and military personnel identified for peacekeeping, military exchanges and training programmes;
  3. Whenever possible, notably under universal jurisdiction, investigate and prosecute those allegedly responsible for violations, such as torture, war crimes or crimes against humanity ;
  4. Ensure a policy of non-refoulement of Tamils who have suffered torture and other human rights violations until guarantees of nonrecurrence are sufficient to ensure that they will not be subject to further abuse, in particular torture and sexual violence;
  5. In countries where there is a significant Tamil population, carry out an assessment of needs for psychosocial support for those who have been victims of violations and as necessary fund the development of such services;
  6. Continue to monitor human rights developments and progress towards accountability and reconciliation through the Human Rights Council.  Should there be insufficient progress, the Human Rights Council should consider further international action to ensure accountability for international crimes.

Annexure III: UN Human Rights council, Draft Resolution 30/179, with a paragraph by paragraph commentary by SACLS.

Item 2: Promoting reconciliation, accountability and human rights in Sri Lanka

The Human Rights Council,

Preambular Paragraphs

Comment: Preambular paragraphs in a resolution are drafted to reflect the background and spirit of the resolution. They are not a binding part of the resolution as the operative paragraphs are, but explain the thinking and logic behind the resolution. They are also useful tools in interpreting the text of the operative paragraphs. Often, in the event an operative paragraph is unclear or could be interpreted in more than one way, the preambular paragraphs could be useful in determining what the text of the resolution actually means.

Readers will note that many of the revisions to the text effected to the previously circulated draft reflect the incumbent government‟s own political messaging and discourse related to accountability, UN processes and reconciliation.

Pp1

Reaffirming the purposes and principles of the Charter of the United Nations,

Pp2

Guided by the Universal Declaration of Human Rights, the International Covenants on Human Rights and other relevant instruments,

Pp3

Recalling also Human Rights Council resolutions 19/2 of 22 March 2012, 22/1 of 21 March 2013, and 25/1 of 27 March 2014 on promoting reconciliation and accountability in Sri Lanka,

Comment: The above three paragraphs are standard paragraphs, typically found in resolutions of the Human Rights Council.

Pp4

Reaffirming its commitment to the sovereignty, independence, unity and territorial integrity of Sri Lanka,

Comment: This language is taken from previous Human Rights Council resolutions on Sri Lanka, and makes clear that the resolution is not aimed at the creation of a separate state, as alleged by a few.

Pp5

Reaffirming that it is the responsibility of each State to ensure the full enjoyment of all human rights and fundamental freedoms of its entire population,

Comment: International Human Rights Law holds that it is the state who is primarily responsible for protecting human rights.

Pp6

Welcoming the historic free and fair democratic elections in January and August 2015and peaceful political transition in Sri Lanka,

Comment: The co-sponsors of the resolution were very keen that the text of the resolution reflects the change that took place in Sri Lanka in January 2015 and thereafter in August. The US Ambassador to Geneva Keith Harper repeatedly stated that the resolution should reflect two realities: first, the change that has happened in Sri Lanka, and second, the gravity and seriousness of the violations of human rights and crimes contained in the OISL Report.

Pp7

Taking note with interest of the passage and operationalization of the nineteenth amendment to the Constitution of Sri Lanka and its contributions to promoting democratic governance and independent oversight of key institutions, including the provision on promotion of national reconciliation and integration as among the Constitutional duties of the President of Sri Lanka,

Comment: This paragraph was likely included to strengthen the government‟s argument that the nineteenth amendment to the constitution strengthened Sri Lanka‟s ability to deal with accountability related issues. The final phrase relating to the duties of the President was included in keeping with Sri Lanka‟s proposals made at the informal session on the draft resolution held on the 22nd of September.

Pp8

Welcoming the steps taken by the Government of Sri Lanka since January 2015 to advance respect for human rights and to strengthen good governance and democratic institutions

Comment: Once again, the text reaffirms its commendation of the positive change since January 2015.

Pp9

Welcoming the efforts of the Government of Sri Lanka to Investigate allegations of bribery, corruption, fraud, and abuses of power, and stressing the importance of such investigations and the prosecution of those responsible in ending impunity and promoting good governance;

Comment: This is an important paragraph as it stresses the connection between human rights issues and corruption issues. It potentially opens the door to mechanisms that deal with corruption and human rights issues at the same time. In fact, Government Spokesman and Minister Dr Rajitha Senaratne was quoted in The Island newspaper as suggesting that the same judicial mechanism with foreign participation may be used to deal with both issues. While this is unlikely to be definitive government policy, it is possible that some quarters within the government may be thinking on these lines. http://www.island.lk/index.php?page_cat=article-details&page=articledetails&code_title=131974

Pp10

Welcoming as well, the steps taken to strengthen civilian administration in the former conflictaffected provinces of the North and East, and acknowledging the progress made by the Government of Sri Lanka in rebuilding infrastructure, demining and resettling internally displaced persons, and calling on the international community, including the United Nations, to assist the Government of Sri Lanka in furthering these efforts, especially in expediting the process of delivery of durable solutions for all internally displaced persons;

Comment: The language of this paragraph was amended in favour of the Sri Lankan government on its request. The initial draft read: “Welcoming and acknowledging the progress made by the Government of Sri Lanka in rebuilding infrastructure, demining and resettling internally displaced persons, while noting nonetheless that considerable work lies ahead in the areas of justice and reconciliation and to deliver durable solutions for all internally displaced persons”. Instead of “noting that considerable work lies ahead”, the paragraph calls on the international community to assist the Government of Sri Lanka in furthering these efforts. This change was also proposed by Sri Lanka at the informal session held on 22 September.

Pp11

Recognizing the improved environment for members of civil society and human rights defenders in Sri Lanka, while expressing concern at reports of ongoing violations and abuses of human rights and recognizing the expressed commitment of the Government of Sri Lanka to address issues including those involving sexual and gender-based violence and torture, abductions, as well as intimidation of and threats against human rights defenders, and members of civil society,

Comment: This paragraph was also amended to soften the language towards Sri Lanka, but nevertheless expresses concern at reports of sexual violence and torture, as well as incidents of threats against some civil society members and human rights defenders particularly in the North and East. The initial version of the draft before it was changed read: “Expressing concern at the continuing reports of violations of human rights in Sri Lanka, including those involving sexual and gender-based violence, torture, abductions, as well as intimidation of and threats against human rights defenders, and members of civil society”.

Pp12

Reaffirming that all Sri Lankans are entitled to the full enjoyment of their human rights regardless of religion, belief or ethnicity, in a peaceful and unified land;

Comment: Once again, the text affirms the equality of all Sri Lankans and the desire that Sri Lanka‟s peoples be united.

Pp13

Reaffirming also that States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights law, international refugee law and international humanitarian law, as applicable,

Comment: This paragraph was also contained in the resolution passed in March 2014 at the Human Rights Council. It indicates that even counter-terrorism measures must comply with the law.

Pp14

Welcoming the government‘s Declaration of Peace of 4 February 2015 and its acknowledgement of the loss of life and victims of violence of all ethnicities and religions,

Comment: This paragraph is a further indication of the drafter‟s willingness to acknowledge and welcome the change that has taken place in Sri Lanka.

Pp15

Emphasizing the importance of a comprehensive approach to dealing with the past incorporating the full range of judicial and non-judicial measures, including, inter alia, individual prosecutions, reparations, truth-seeking, institutional reform, vetting of public employees and officials, or an appropriately conceived combination thereof, in order to, inter alia, ensure accountability, serve justice, provide remedies to victims, promote healing and reconciliation, establish independent oversight of the security system, restore confidence in the institutions of the State and promote the rule of law in accordance with international human rights law, with a view to preventing the recurrence of violations and abuses, and welcoming in this regard the Government‘s expressed commitment to ensure dialogue and wide consultations with all stakeholders;

Comment: See comment on below paragraph.

Pp16

Recognizing that mechanisms to redress past abuses and violations work best when they are independent, impartial, and transparent; are led by individuals known for displaying the highest degree of professionalism, integrity, and impartiality; utilize consultative and participatory methods that include the views from all relevant stakeholders including, but not limited to, victims, women, youth, representatives from various religions, ethnicities, and geographic locations as well as marginalized groups; and designed and implemented based on expert advice from those with relevant international and domestic experience;

Comment: The two paragraphs above are critical. The earlier draft circulated by the cosponsors used the term “Transitional Justice”, but it is understood that the Sri Lankan Ministry of Foreign Affairs preferred the use of the phrase “dealing with the past” instead. There is no major difference in the two phrases, and the difference is primarily one that is discussed in academic circles. It is not clear why the Ministry of Foreign Affairs prefers not to use the term “Transitional Justice”.

These two paragraphs provide a very comprehensive idea of what constitutes “Transitional Justice” or “dealing with the past”. It contains the key notions of truth seeking, criminal prosecutions, reparations, vetting to remove and prevent those who are responsible for human rights abuses from the military and police, and institutional reform to prevent recurrence of crimes.

It also speaks of the important principles of independence, impartiality and transparency combined with a consultative approach to making policies which deal with the past. These consultations must involve all sectors. Finally, expert advice from outside and within the country must be relied on in making decisions on mechanisms to deal with the past.

Pp17

Recognising that a credible accountability process for those most responsible for violations and abuses will safeguard the reputation of those, including within the military, who conducted themselves in an appropriate manner with honor and professionalism.

Comment: This paragraph was introduced by the co-sponsors of the draft with a view to signalling to the country and its military that a process of accountability was not one that was aimed at punishing the military as a whole. Instead, by isolating blame to those who violated the law and abused their power, those who did not violate the law would have their reputation safeguarded.

Pp18

Recalling the responsibility of States to comply with their relevant obligations to prosecute those responsible for gross violations of human rights and serious violations of international humanitarian law constituting crimes under international law, with a view to ending impunity,

Comment: This paragraph merely restates what is accepted international law with respect to international crimes. The identical language appeared in resolution 25/1 passed in March 2014.

Pp19

Taking note of the review of High Security Zones undertaken by the government and welcomes the initial steps taken to return land to its rightful civilian owners and to help local populations to resume livelihoods and restore normality to civilian life,

Comment: This paragraph recognizes the progress made by the government with respect to the release of civilian lands. However, the use of the phrase “initial steps taken to return land” which the Sri Lankan government proposed be deleted, but nevertheless has remained in the text, indicates that the Council‟s view – and now the Sri Lankan government‟s view – is that land releases must go beyond what has already been done.

Pp20

Welcoming the Government of Sri Lanka‘s commitments to the devolution of political authority,

Comment: See comment on Operative Paragraph 16 below.

Pp21

Requesting the Government of Sri Lanka to implement effectively the constructive recommendations made in the report of the Lessons Learnt and Reconciliation Commission,

Comment: This language has been consistently found in all of the Human Rights Council resolutions passed by the Human Rights Council since 2012: March 2012; March 2013; March 2014 and now September 2015.

Pp22

Welcoming also the 30 March - 3 April 2015 visit and observations of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, and the planned visit of the Working Group on Enforced and Involuntary Disappearances in November,

Comment: The March 2014 resolution encouraged these mandate holders to provide technical assistance and advice to Sri Lanka. This paragraph welcomes Sri Lanka‟s engagement with these offices.

Pp23

Recognizing that the Investigation into alleged serious violations and abuses of human rights and related crimes in Sri Lanka requested in Human Rights Council resolution 25/1 was necessitated by the absence of a credible national process of accountability,

Comment: This late inclusion into the draft (it was not included in the original draft circulated by the co-sponsors) presumably on Sri Lanka‟s request is significant. It recognizes that the absence of a credible national process of accountability gave rise to the need for the UN investigation mandated by HRC resolution 25/1. In this it mirrors the political arguments and discourse that have come to characterize the incumbent government‟s response to the now completed UN investigation on Sri Lanka.

Operative Paragraphs

1. Takes note with appreciation the oral update presented by the High Commissioner to the Human Rights Council at its twenty-seventh session, the report of the Office of the High Commissioner for Human Rights on promoting reconciliation and accountability in Sri Lanka and the report of its Investigation on Sri Lanka requested in Human Rights Council resolution 25/1 including its findings and conclusions, and encourages the Government of Sri Lanka to implement the recommendations contained therein when implementing measures for truth seeking, justice, reparations, and guarantees of non-recurrence;

Comment: The paragraph notes with appreciation the High Commissioner‟s report and the OISL Report including its findings and conclusions and encourages the government to implement its recommendations. The initial draft circulated by the co-sponsors used the word “welcomes”. Sri Lanka proposed the use of the word “notes” and a compromise was reached through the use of the phrase “takes note with appreciation”. The phrase is used often in UN resolutions, and is a half-way measure between “welcomes” – which conveys full acceptance of a report etc. – and “notes” – which indicates acknowledgement of a report etc. but unwillingness to fully accept all its contents. However, in the second part of the paragraph, Sri Lanka has agreed to be “encouraged” by the Council to fulfil the recommendations of the OISL Report without reservation. This is highly significant.

2. Welcomes the positive engagement between the Government of Sri Lanka and the High Commissioner and his Office since January 2015 and encourages the continuation of such engagement in the promotion and protection of human rights and in exploring appropriate forms of international support to and participation in Sri Lankan processes for seeking truth and justice;

Comment: This language was not part of the initial draft circulated by the co-sponsors and was included in line with Sri Lanka‟s proposals. It reflects the government‟s desire to be perceived to be cooperating with the High Commissioner and his Office since the Presidential elections of January 2015.

3. Supports the Government of Sri Lanka‘s commitment to strengthen and safeguard the credibility of the processes of truth seeking, justice, reparations, and guarantees of nonrecurrence by engaging in broad national consultations with the inclusion of victims and civil society, including non-governmental organizations, from all affected communities that will inform the design and implementation of these processes, drawing on international expertise, assistance and best practices;

Comment: This paragraph deals with the need for consultations of a broad range of stakeholders, with a view to informing the design and implementation of these processes, and also to draw on international assistance with respect to these consultations. The language of this paragraph was softened from the language of the previous draft circulated by the cosponsors, which began with the phrase: “Encourages the new Government of Sri Lanka to respect its positive commitment to bolster and safeguard the credibility of these justice processes by engaging…”

4.Welcomes the Government of Sri Lanka‘s commitment to undertaking a comprehensive approach to dealing with the past incorporating the full range of judicial and non-judicial measures; welcomes in this regard the proposal by the Government of Sri Lanka to establish a Commission for Truth, Justice, Reconciliation, and Non Recurrence, an Office of Missing Persons, and an Office for Reparations;; welcomes the Government‘s willingness to give each mechanism the freedom to obtain assistance, both financial, material and technical from international partners including the OHCHR; and affirms that these commitments, if implemented fully and credibly, will help to advance accountability for serious crimes by all sides and help achieve reconciliation;

Comment: This paragraph underlines two important ideas. First, it welcomes the government‟s commitment to a process of dealing with the past. The phrase “full range of judicial and non-judicial measures” is a familiar one in Transitional Justice literature and forms part of the International Center for Transitional Justice‟s definition of „Transitional Justice‟. It encapsulates the idea that the government has consented to judicial prosecutions as well as non-judicial measures such as truth commissions, other tracing mechanisms, reparations and security sector reform.

The second main idea incorporated into this paragraph is borrowed from the speech made by the Foreign Minister Mangala Samaraweera at the UNHRC sessions in September. In his speech, he stated that the mechanisms established by Sri Lanka would have the freedom to obtain assistance, both financial, material and technical from international partners. Sri Lanka also sought these inclusions among others at the informal session relating to the resolution held on 22 September. This paragraph appears to merge previous draft OPs 6 and 7.

5. Recognizes the need for a process of accountability and reconciliation for violations and abuses committed by the Liberation Tigers of Tamil Eelam as highlighted in the OISL report;

Comment: This paragraph was included with the view to also covering LTTE abuses, which are not specifically mentioned in any other paragraphs. Its inclusion was sought to bring balance to the resolution.

6.Welcomes the government‘s recognition that accountability is essential to uphold the rule of law and build confidence in the people of all communities of Sri Lanka in the justice system, takes note with appreciation of the Government of Sri Lanka‘s proposal to establish a Judicial Mechanism with a Special Counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; and affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for integrity and impartiality; and further affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the Special Counsel‘s office, of Commonwealth and other foreign judges, defence lawyers, and authorized prosecutors and investigators;

Comment: This paragraph is arguably the most important of the entire resolution. It seeks to build on the Foreign Minister‟s own speech where he referred to „a Judicial Mechanism with a Special Counsel‟. This reference to „Special Counsel‟ ostensibly refers to a prosecutor. It further affirms the importance of credibility and impartiality of judges and prosecutors. The final phrase is key in that it affirms the importance of the participation in „a Sri Lankan judicial mechanism‟, including in the prosecutor‟s office, of Commonwealth and other foreign judges, defence lawyers, and authorized prosecutors and investigators. Each word is of critical importance. By including the phrase “Sri Lankan judicial mechanism”, the resolution allows the government the political space to claim that the process is not an international process, but a local one.

Nevertheless, it affirms the importance of “Commonwealth and other foreign” personnel. The importance of this phrase, and the fact that the use of Commonwealth judges was always within the contemplation of the government is seen in Foreign Minister Mangala Samaraweera‟s comments to an Indian magazine in January 2015, immediately following the Presidential election. In it, he said, “We hope for technical assistance from the UN, perhaps judges from the Commonwealth – whom we chair at the moment – too.” However, the text specifies that judges could also be chosen from outside the Commonwealth. In fact, it is arguable whether or not it is permissible not to have judges from outside the Commonwealth. The text refers to “authorized prosecutors and investigators”. It is understood that this inclusion of the word „authorized‟, which does not feature in the previous text, was a late inclusion on the request of the Sri Lankan government. It appears to be redundant because all personnel participating in a judicial mechanism must necessarily be authorized. Notably, to prevent any room for argument that the reference to “authorized prosecutors and investigators” is unconnected to the words “Commonwealth and other foreign” personnel, the phrase “including in the Special Counsel‟s Office” has been included for avoidance of doubt.

The text did change from the initial circulated draft in some ways. The initial text referred to “international” personnel, while the current draft refers to Commonwealth and other foreign personnel. The current draft uses „participation in‟ while the previous draft refers to „involve‟. There is also the use of the word „inclusion‟, as noted above.

The debate about whether this is a hybrid court or a domestic court is a moot point. It is also irrelevant. The word „hybrid court‟ has no fixed definition. It could mean many things. As a recent press article notes, the Sri Lankan Supreme Court was a hybrid court according to some definitions as there were foreign judges until 1955, 8 years after independence. The Udalagama and Paranagama Commissions of Inquiry were also arguably „hybrid commissions‟ since they included foreign personnel as monitors and advisors. The debate over „hybrid‟ or „domestic‟ is essentially a mask for two central questions: how do you ensure the independence of judges and prosecutors participating in the trial of international crimes that are highly politicized; and second, how do you ensure such participants have the capacity to try serious international crimes.

For Foreign Minister‟s comments on Commonwealth judges, made in January 2015, see: http://swarajyamag.com/world/new-sri-lankan-foreign-minister-our-tilt-towards-china-needsa-course-correction/

7. Encourages the Government of Sri Lanka to reform its domestic law to ensure that it can effectively implement its own commitments, the recommendations made in the report of the Lessons Learnt and Reconciliation Commission, as well as the recommendations of the report by the Office of the High Commissioner for Human Rights requested in resolution 25/1, including by allowing for, in a manner consistent with its international obligations, the trial and punishment of those most responsible for the full range of crimes under the general principles of law recognized by the community of nations relevant to violations and abuses of human rights and violations of international humanitarian law, including during the period covered by the LLRC;

Comment: There are three key ideas in this paragraph. First, the idea that Sri Lanka has legal obligations under international law to try and punish those most responsible of certain crimes, and that it must reform its law to do. This is a standard international law principle in relation to international crimes – the state must at the least investigate and punish „those most responsible‟. This therefore calls for the inclusion in Sri Lankan law of modes of responsibility such as command responsibility.

Second, the idea that these trials must be for the „full range of crimes under the general principles of law recognized by the community of nations” which are relevant to violations of human rights and IHL. The phrase “general principles of law recognized by the community of nations” is taken from the ICCPR Article 15(2) and the Sri Lankan Constitution Article 13(6) and has been interpreted by the Sri Lankan Supreme Court in Sepala Ekanayake‟s case to mean “customary international law”. Thus, the full range of crimes under customary international law relating to human rights and IHL include war crimes and crimes against humanity. The resolution therefore encourages Sri Lanka to reform its law to include war crimes and crimes against humanity as offences under domestic Sri Lankan law.

Third, the idea that these laws must cover the period “covered by the LLRC” which is 2002 to 2009 at the very least. Thus, the resolution does not merely call for the incorporation of international crimes into domestic law, it makes reference to the need for retroactive incorporation of these crimes, in line with Article 13(6) of the Constitution to go back to 2002.

8. Encourages the Government of Sri Lanka to introduce effective security sector reforms as part of its transitional justice process that will help enhance the reputation and professionalism of the military and include ensuring that no scope exists for retention in or recruitment into the security forces of anyone credibly implicated through a fair administrative process in serious crimes involving human rights violations or abuses or violations of international humanitarian law including members of the security and intelligence units; and increasing training and incentives focused on the promotion and protection of human rights of all Sri Lankans;

Comment: Security sector reform is an important component of Transitional Justice. One of the stated outcomes of such a process is to „enhance and reputation and professionalism‟ of the military. The purpose of security sector reform is to limit the prospects of recurrence and orient the security sector in a manner that protects human rights, rather than endangers it. Two specific security sector reforms are mentioned: first, the use of fair administrative processes to prevent retention and recruitment into the security forces of those involved in violations of human rights and IHL. Second, to provide training and incentives aimed at the promotion and promotion of human rights. The first set of reforms are likely be controversial, but have been effectively carried out in other parts of the world, particularly in the former Balkans.

9. Welcomes the Government of Sri Lanka‘s recent passage of an updated Witness and Victim Protection Law and its commitment to review the law, and encourages the Government of Sri Lanka to strengthen these essential protections by making specific accommodations to effectively protect witnesses and victims, investigators, prosecutors, and judges.

Comment: The language in the latest draft was strengthened to include reference to the Foreign Minister‟s speech wherein he committed to “review” the Witness and Victim Protection law. The OISL Report also highlights the need for a review of the law, and strengthened protection for witnesses and victims. Although Parliament has passed a law which was drafted by the previous administration, the law has not yet been operationalized.

10. Welcomes the initial steps taken to return land and encourages the government to accelerate the return of land to its rightful civilian owners, , and to undertake further efforts to tackle the considerable work that lies ahead in the areas of land use and ownership, in particular the ending of military involvement in civilian activities, the resumption of livelihoods and the restoration of normality to civilian life, and stresses the importance of the full participation of local populations, including representatives of civil society and minorities, in these efforts,

Comment: This paragraph in this latest draft resolution was revised to reflect the government in a more positive light. An earlier draft contained stronger language. It read: “Underscores the importance of the government taking additional steps on return of land previously taken by defense forces to its rightful civilian owners, encouraging the acceleration of such transfers of land back to the rightful owners, and encouraging the government to undertake further efforts to tackle the considerable work that lies ahead in the areas of land use and ownership, in particular the ending of military involvement in civilian activities, the resumption of livelihoods and the restoration of normality to civilian life, and stressing the importance of the full participation of local populations, including representatives of civil society and minorities, in these efforts”.

11. Encourages the Government of Sri Lanka to investigate all alleged attacks by individuals and groups on journalists, human rights defenders, members of religious minority groups and other members of civil society, as well as places of worship, and to hold perpetrators of such attacks to account and to take steps to prevent such attacks in the future;

Comment: This paragraph is almost identical to the paragraph from the March 2014 Resolution (25/1) and was included in that resolution in the light of communal violence targeting primarily Muslims in that year as well as other attacks.

12. Welcomes the Government of Sri Lanka‘s commitment to review the Public Security Ordinance Act and review and repeal the Prevention of Terrorism Act and replace it with antiterrorism legislation in line with contemporary international best practices;

Comment: This paragraph reflects the comments in Foreign Minister Mangala Samaraweera‟s speech at the Human Rights Council in September 2015. They were also mentioned in the OISL Report, suggesting that the Foreign Minister‟s speech may have incorporated certain OISL recommendations even though the OISL Report was not public at that stage. The government did receive an advance copy of the OISL Report prior to FM Samaraweera‟s speech at the Council.

13. Welcomes the Government of Sri Lanka‘s commitment to sign and ratify the International Convention for the Protection of All Persons from Enforced Disappearances without delay, to criminalize enforced disappearances and to begin issuing Certificates of Absence to the families of the missing as a temporary measure of relief;

Comment: This paragraph reflects the comments in Foreign Minister Mangala Samaraweera‟s speech at the Human Rights Council in September 2015. They are highly significant as they reflect the decades-long demands of anti-disappearance human rights activists. These are 1) ratify the Disappearances Convention; 2) criminalize enforced disappearances; and 3) issue certificates of absence to families of the missing.

14. Welcomes the Government of Sri Lanka‘s commitment to release publicly previous Presidential Commission Reports

Comment: Earlier drafts specifically mentioned certain reports, but reference to them was excluded during negotiations with the government at a later stage. The previous draft made reference to the “Udalagama and Paranagama reports by the end of this month, and calls for the release of the results of its investigations into alleged violations by security forces, including the attack on unarmed protesters in Weliweriya on 1 August 2013, and the report of 2013 by the court of inquiry of the Sri Lanka Army”. It is notable that the Foreign Minister told the Human Rights Council in September 2015 that the Udalagama and Paranagama Commission reports would be released “this month”. Nevertheless, they have yet to be released. This change gives rise to the assumption that the government may not be willing to release one or more of these reports, though it is not immediately apparent why that is the case.

15. Encourages the Government of Sri Lanka to develop a comprehensive plan and mechanism for preserving all existing records and documentation relating to human rights violations and abuses and violations of international humanitarian law, whether held by public or private institutions;

Comment: This provision reflects the duty of the state to preserve records and documents relating to violations of human rights and IHL. This obligation is now entrenched as a best practice and legal obligation under international law.

16. Welcomes the government‘s commitment to a political settlement by taking the necessary constitutional measures and encourages the Government of Sri Lanka‘s efforts to fulfill its commitments on the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population; and encourages the Government of Sri Lanka to ensure that all Provincial Councils, are able to operate effectively, in accordance with the 13th amendment to the Constitution of Sri Lanka;

Comment: This paragraph was contested and negotiated. The second part of the paragraph relating to the Provincial Councils and the 13th Amendment are taken from the March 2014 resolution (25/1). However, the reference to the “government‟s commitment to a political settlement by taking the necessary constitutional measures” refers tacitly to the Foreign Minister‟s speech before the Council where he made reference to a political solution that would address the grievances of the Tamil people through a new constitution. Thus, the Foreign Minister‟s formulation was slightly revised to refer to “constitutional measures” in place of “a new constitution”. Reference to a political solution and devolution in the text of the resolution was a key demand of the Tamil National Alliance.

17. Welcomes the Government‘s commitment to issue instructions clearly to all branches of the security forces that violations of international human rights law and international humanitarian law, including those involving torture, rape, and sexual violence, are prohibited and that those responsible will be investigated and punished, and encourages the government to address all reports of sexual and gender-based violence and torture;

Comment: Once again, this recommendation was initially in the OISL Report, was then incorporated into the speech of the Foreign Minister at the Human Rights Council, and subsequently incorporated into the draft resolution. It did not figure in the initial draft text, and was included subsequently.

18. Requests the Office of the High Commissioner to continue to assess progress on the implementation of OHCHR‘s recommendations and other relevant processes related to reconciliation, accountability, and human rights; to present an oral update to the Human Rights Council at its thirty-second session, and a comprehensive report followed by discussion on the implementation of the present resolution at its thirty-fourth session;

Comment: The evolution of this paragraph is interesting. The typical formulation for this sort of paragraph is to request the Office of the High Commissioner (OHCHR) to “monitor” progress. It is understood that the Sri Lankan government preferred alternative phraseology. The initial draft text therefore contained the words “assess and verify the human rights situation in Sri Lanka”. References to monitoring/assessing the human rights situation in Sri Lanka have now been excluded. Instead, OHCHR is asked to “continue to assess progress on the implementation of other relevant processes related to reconciliation, accountability and human rights”. This reference to processes related to human rights among others will provide the necessary interpretive space for OHCHR to in effect carry out human rights monitoring.

The reporting periods are as follows: an oral update by OHCHR to the Council in June 2016, and a final comprehensive report in March 2017. This period coincides with the 18 month period which the Foreign Minister said Sri Lanka would take to implement its accountability mechanisms.

See: “The Foreign Minister told Daily FT the Government hopes to get the mechanism off the ground within a year or 18 months...”. - See more at: http://www.ft.lk/article/471161/Accountability-framework-for-Lanka-s-own-sake-Mangala%C2%A0#sthash.XFOh9J7P.dpuf”

19. Encourages the Government of Sri Lanka to continue to cooperate with special procedures mandate holders, including responding formally to outstanding requests;

Comment: This is a standard provision found it most country-specific Human Rights Council resolutions. The earlier text was shortened to omit reference to specific mandate holders.

20. Encourages the Office of the High Commissioner and relevant special procedures mandate holders to provide, in consultation with and with the concurrence of the Government of Sri Lanka, advice and technical assistance on implementing the abovementioned steps.

Comment: This is also a standard provision found it most country-specific Human Rights Council resolutions. It has been a feature of all resolutions on Sri Lanka since 2012.

Endnotes

1 UN Human Rights Council, Promoting reconciliation, accountability and human rights in Sri Lanka, Resolution 30/1, 30th session, 1st October 2015, U.N. Doc. A/HRC/30/1 (hereinafter UNHRC, Resolution 30/1).

2 UN Human Rights, Report of the OHCHR Investigation on Sri Lanka (OISL), 30th session, 16 September 2015, U.N. Doc. A/HRC/30/CRP.2 (hereinafter OISL Report).

3 See Annexure I.

4 Human Rights Watch, "Sri Lanka: UN Resolution Could Advance Justice",  28 September  2015, at  https://www.hrw.org/news/2015/09/28/sri-lanka-un-resolution-could-advance-justice (last accessed 22/02/16).

5 "TNA Hopes UNHRC Resolution Will Mark A New Chapter In Sri Lanka‘s Quest For Reconciliation", Colombo Telegraph, 4 October 2015, at  https://www.colombotelegraph.com/index.php/tna-hopes-unhrc-resolution-willmark-a-new-chapter-in-sri-lankas-quest-for-reconciliation/ (last accessed 22/02/16).

6 John Kerry Secretary of State(Press Statement), "Resolution on Sri Lanka at the 30th Session of the UN Human Rights Council",  24 September 2015, Washington DC, at http://www.state.gov/secretary/remarks/2015/09/247268.htm (last accessed 22/02/16).

7 International Convention for the Protection of All Persons from Enforced Disappearance, New York, 20 December 2006, United Nations, Treaty Series, vol. 2716, p. 3, U.N. Doc. A/61/448, article 24.

8 See for e.g, UN General Assembly, Right to truth, Resolution 68/165, 68th session, 18 December 2013, U.N. Doc. A/RES/68/165 ; UN Human Rights Council, Right to truth, Resolution 12/12, 12th  session, 1st  October 2009, U.N. Doc. A/HRC/RES/12/12 ; UN Human Rights Council, Right to truth, Resolution 21/7, 21th  session, 27 September 2012, U.N. Doc. A/HRC/RES/21/7.

9 See Working Group on Enforced or Involuntary Disappearances, "General Comment on the Right to the Truth in Relation to Enforced Disappearances", (contained in UN Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, 16th session, 26 January 2011, U.N Doc. A/HRC/16/48 para. 39), para. 4.

10  Niran Anketell, "Building credible mechanisms for domestic accountability and transitional justice: Truth-telling initiatives",  Daily FT, 19 March 2015, at http://www.ft.lk/2015/03/19/building-credible-mechanisms-for-domesticaccountability-and-transitional-justice-truth-telling-initiatives/#sthash.vLzFgHcv.dpuf  (last accessed 22/02/16).

11 UN Office of the High Commissioner, "Observations by the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Mr. Pablo de Greiff, on the conclusion of his recent visit to Sri Lanka', 11 April 2015, Geneva, Colombo, at http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=15820&LangID=E (last accessed 22/02/16).

12 ICRC, "Sri Lanka: Clarifying the fate of missing persons requires sustained commitment", 26 march 2015, at https://www.icrc.org/en/document/clarifying-fate-missing-persons-sri-lanka-requires-sustained-commitment (last accessed 22/02/16).

13 Ministry of Foreign Affairs Sri Lanka, "Statement by Foreign Minister Samaraweera at the General Debate of the 30th Session of the UN Human Rights Council", 14 September 2015,  at  http://www.mea.gov.lk/index.php/en/media/media-releases/unhrc2015/6200-slfm-hrc30 (Last accessed 22/2/16).

14 OISL Report, op. cit.,  p. 249, Recommendation 25.

15  Secretariat for Coordinating Reconciliation Mechanisms , "Frequently asked questions", 2016, at http://www.scrm.gov.lk/#!faqs/k30p5 (last accessed 22/02/16).

16 See Toni Pfanner, "Cooperation between truth commissions and the International Committee of the Red Cross", International Review of the Red Cross, Volume 88 Number 862 , June 2006, pp. 368-379.

17 See, The Promotion of National Unity and Reconciliation Act, No. 34 of 1995(South Africa), section 20.

18 See generally, UN Office of the High Commissioner for Human Rights, "Rule of Law Tools for Post-Conflict States – Archives",  New York, Geneva, 2015, at http://www.ohchr.org/Documents/Publications/HR_PUB_14_4_Archives_en.pdf  (last accessed 22/02/16).

19 UN Human Rights Commission, "Report of Diane Orentlicher, independent expert to update the Set of principles to combat impunity - Updated Set of principles for the protection and promotion of human rights through action to combat impunity", 61st session, 8 February 2005, U.N Doc. CN.4/2005/102/Add.1. 

20 OISL Report, op. cit., p. 249, Recommendation 29.

21 Krishan Francis, "Sri Lanka mulls SAfrican model Truth Commission", The Associated Press, Colombo, 19 February  2014, at  http://www.thejakartapost.com/news/2014/02/19/sri-lanka-mulls-safrican-model-truthcommission.html (last accessed 22/02/16).

22 "Ranil lists immediate priorities for Sri Lanka", Daily FT, 27 March 2015,at  http://www.ft.lk/2015/03/27/ranillists-immediate-priorities-for-sri-lanka/ (last accessed 22/02/16).

23 See Annexure I.

24 See generally, Eduardo Gonzalez, "Drafting a Truth Commission Mandate: A Practical Tool", ICTJ, June 2013, at https://www.ictj.org/sites/default/files/ICTJ-Report-DraftingMandate-Truth-Commission-2013_0.pdf (last accessed 22/02/16).

25 UNHRC, Resolution 30/1, op. cit., preamble.

26 Eduardo González, Howard Varney (eds.), "Truth Seeking: Elements of Creating an Effective Truth Commission", ICTJ, March 2013,  at https://www.ictj.org/sites/default/files/ICTJ-Book-Truth-Seeking-2013English.pdf (last accessed 22/02/16),  p. 69.

27 See Presidential Commission to Investigation into Complaints regarding Missing Persons, "Report On the Second Mandate  Of the Presidential Commission of Inquiry  Into Complaints of Abductions and Disappearances", August 2015, at http://www.pcicmp.lk/images/Reports/14_August_Final_Version.pdf (last accessed 22/02/16).

28 See Tharushan Fernando, "Udalagama, Paranagama Commission Reports explained", Newsfirst, 21 October 2015, at http://newsfirst.lk/english/2015/10/udalagama-paranagama-commission-reports-explained/115163 (last accessed 22/02/16) : Both the Paranagama and Udalagama reports were tabled in Parliament, but the Udalagama Report does not appear to be published online to date.

29 For a list of Commissions of Inquiry and other investigative mechanisms relating to human rights instituted by the previous government, see: Centre for Policy Alternatives, "A List of Commissions of Inquiry and Committees Appointed by the Government of Sri Lanka (2006–2012)", 12 March  2012, at  http://www.cpalanka.org/a-list-ofcommissions-of-inquiry-and-committees-appointed-by-the-government-of-sri-lanka-2006-2012/ (last accessed 22/02/16).

30 See Rhadeena de Alwis and Niran Anketell, "A Hybrid Court: Ideas for Sri Lanka", SACLS, April 2015, at https://drive.google.com/file/d/0B99WBl4LrZxIUjNab2F0QWpROVU/view (last accessed 22/02/16). See also Niran Anketell, "Building Credible Mechanisms for Domestic Accountability and Transitional Justice: Prosecutions and Criminal Justice", Daily FT, 23 January 2015, at  http://www.ft.lk/2015/01/23/building-credible-mechanismsfor-domestic-accountability-and-transitional-justice-prosecutions-and-criminal-justice/ (last accessed 22/02/16).

31 See Annexure I.

32 Ibid.

33 UN Office of the High Commissioner for Human Rights, "Zeid urges creation of hybrid special court in Sri Lanka as UN report confirms patterns of grave violations", 16 September 2015, at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?LangID=E&NewsID=16432#sthash.Ehj7GvSJ.dp uf (last accessed 22/02/16).

34 UNHRC Resolution 30/1, op. cit., para. 6.

35 See Rhadeena de Alwis and Niran Anketell, "A Hybrid Court: Ideas for Sri Lanka", SACLS, April 2015, at https://drive.google.com/file/d/0B99WBl4LrZxIUjNab2F0QWpROVU/view (last accessed 22/02/16).

36 See generally, Rhadeena de Alwis and Niran Anketell, "A Hybrid Court: Ideas for Sri Lanka", SACLS, April 2015, at https://drive.google.com/file/d/0B99WBl4LrZxIUjNab2F0QWpROVU/view (last accessed 22/02/16).

37 See for e.g., Open Society Justice Initiative,  "Performance and Perception: The Impact of the Extraordinary Chambers in the Court of Cambodia", Open Society Foundations, 17 February 2016, at   https://www.opensocietyfoundations.org/reports/performance-and-perception-impact-extraordinary-chambers-courtcambodia (last accessed 22/02/16).

38 "President tells BBC no foreign judges will be allowed, but PM speaks of foreign participation", 31 January 2016, at http://www.sundaytimes.lk/94312/president-tells-bbc-no-foreign-judges-will-be-allowed-but-pm-speaks-offoreign-participation (last accessed 22/02/16).

39 "Speech Delivered by President Sirisena at the 68th Independence Day Celebrations", 4 February 2016, at https://www.president.gov.lk/news/speech-delivered-by-president-maithripala-sirisena-at-the-68th-independenceday-celebrations-on-february-4-2016/ (last accessed 22/02/16).

40 "EU-SL recognise full implementation of UN resolution as a priority", 21 January 2015, Adaderana.lk, at http://www.adaderana.lk/news/33888/eu-sl-recognise-full-implementation-of-un-resolution-as-a-priority (last accessed 22/02/16).

41 OISL Report, op. cit.,  p. 240.

42 Ibid.

43 OISL Report, op. cit., p. 250, Recommendation 18.

44 Ibid.

45 See Ekanayake vs. Attorney General 1987 (1) Sri LR 107; Ekanayake vs. Attorney General 1988 (1) Sri LR 46

46 OISL Report, op. cit., pages 109-128.

47 UN Human Rights Council, Promoting reconciliation, accountability and human rights in Sri Lanka, Resolution 25/1, 25th session, 27 March 2014, U.N. Doc. A/HRC/RES/25/1, para. 4.

48 Aruni Jayakody, "Victim and Witness Protection: The Need for Further Reform", SACLS, August 2015, at https://drive.google.com/file/d/0B8Ja0Q7UL-o0c3FVcmJLb3pNTEE/view  (last accessed 22/02/16).

49 OISL Report, op. cit., pp.249-250,  Recommendation 17.

50 See Annexure I.

51 "National Authority Set Up on Witness and Victim Protection", The Independent.lk,  8 January 2016, at http://www.theindependent.lk/index.php/news/item/1919-national-authority-set-up-on-witness-and-victimprotection (last accessed 22/02/16).

52 Paul Sieghart, "Sri Lanka: A Mounting Tragedy of Errors - Report of International Commission of Jurists",  1 March1984, at  http://www.icj.org/lanka-a-mounting-tragedy-of-errors-report-of-a-mission-to-sri-lanka-in-january1984-on-behalf-of-the-international-commission-of-jurists-and-its-british-section-justice/  (last accessed 22/02/16), p.33.

53 See Annexure I.

54 "Law Commission to Present Draft Bill for PTA Amendment", Dailynews.lk, 10 February 2016, at http://www.dailynews.lk/?q=2016/02/10/local/law-commission-present-draft-bill-pta-amendment (last accessed 22/02/16).

55 Center for Policy Alternatives, "Certificates of Absence: A Practical Step to Address Challenges  Faced by the Families of the Disappeared in Sri Lanka", September 2015, http://www.cpalanka.org/wpcontent/uploads/2015/09/Certificates-of-Absence-FINAL.pdf  (last accessed 22/02/16).

56 OISL Report, op. cit., p. 251, Recommendation 32.

57 "Measures Underway to Issue Certificates of Absence: Minister", Dailynews.lk, 13 February 2016,  at http://www.srilankamirror.com/news/item/8912-measures-underway-to-issue-certificate-of-absence-minister (last accessed 22/02/16).

58 See Annexure I.

59 UN Office of the High Commissioner for Human Rights, "Rule of Law Tools for Post Conflict States: Reparations Programmes", 2008, New York, Geneva,  p. 7,  at http://www.ohchr.org/Documents/Publications/ReparationsProgrammes.pdf (last accessed 22/02/16).

60 See Dr. Mario Gomez‘s presentation at the panel discussion on "The Paranagama Report and Transitional Justice: Politics, Positioning and Provenance",  at  https://www.youtube.com/watch?v=RMhy7neoxtQ (last accessed 22/02/16).

61 See Annexure I.

62 OISL Report, op. cit., p. 251, Recommendation 30.

63 See generally UN office of the High Commissioner for  Human Rights, "Rule-of-law Tools for Post-conflict States; Vetting: an operational framework", New York, Geneva, 2006, at http://www.ohchr.org/Documents/Publications/RuleoflawVettingen.pdf  (last accessed 22/02/16).

64 OISL Report, op. cit., p. 249, Recommendation 12.

65 See Annexure I.

66 "Sri Lanka President Pledges Land for 100,000 War Victims", AlJazeera America, 4 January 2016,  at http://america.aljazeera.com/articles/2016/1/4/sri-lanka-president-pledges-land-for-100000-war-victims.html (last accessed 22/02/16). 

67  See generally Secretariat for Coordinating Reconciliation Mechanisms website, at : http://www.scrm.gov.lk/ (last accessed 22/02/16).

68 UN Office of the High Commissioner for Human Rights, "Observations by the Special Rapporteur on the conclusion of his second advisory visit to Sri Lanka (26 January to 1 February 2016)", 10 February 2016, Geneva, at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17029&LangID=E  (last accessed 22/02/16).

69 See Subinay Nandy, "UN Is Now Working Closely With Sri Lanka", Colombo Telegaph, 9 January 2016,  at https://www.colombotelegraph.com/index.php/un-is-now-working-closely-with-sri-lanka/ (last accessed 22/02/16).

70 See "Courting Justice", Channel Eye Sri Lanka Rupavahini Corporation ; 10 February 2016, at https://youtu.be/y31AMd8kFy4?t=1909 (last accessed 22/02/16).

71 For a list of countries that have issues standing invitations, see http://spinternet.ohchr.org/_Layouts/SpecialProceduresInternet/StandingInvitations.aspx (last accessed 22/02/16).

72 OISL Report, op. cit., p. 250 Recommendation 19.

73 See Annexure I.

74 See UN Office of the High Commissioner for Human Rights, Committee on Enforced Disappearances, Recent signatures and ratifications, at http://www.ohchr.org/EN/HRBodies/CED/Pages/RecentSignaturesRatifications.aspx (last accessed 22/02/16).

75 See "Remarks to Media by Foreign Minister Mangala Samaraweera on Human Rights Day", Ministry of Foreign Affairs Sri Lanka, at http://www.mea.gov.lk/index.php/en/media/media-releases/6288-fm-hrday (last accessed 22/02/16).

76 Ministry of Foreign Affairs Sri Lanka, Statement by Foreign Minister Samaraweera at the General Debate of the 30th Session of the UN Human Rights Council, 14 September 2015,  at http://www.mea.gov.lk/index.php/en/media/media-releases/unhrc2015/6200-slfm-hrc30 (Last accessed 22/2/16). 

77 UN Human Rights Council, Report of the OHCHR Investigation on Sri Lanka (OISL), 30th session, 16 September 2015, U. N. Doc. A/HRC/30/CRP.2, p. 245 onwards.

78 Nallaratnam Singarasa vs. Attorney General, SC Special App. (LA) No.182/99, decided on 15 September 2006.

79 UN Human Rights Council, Promoting reconciliation, accountability and human rights in Sri Lanka, Draft Resolution 30/L.29, 30th session, 29 September 2015, U.N. Doc. A/HRC/30/L.29. For the final version of the resolution see UN Human Rights Council, Promoting reconciliation, accountability and human rights in Sri Lanka, Resolution 30/1, 30th session, 1st October 2015, U.N. Doc. A/HRC/30/1. No substantial changes were made.

Published in Reports

In a recent article, Ram Manikkalingam – a member of the Sri Lankan President’s Office for National Unity and Reconciliation (ONUR) – argues that Sri Lanka must not prioritize accountability for mass atrocity crimes until a new constitution addressing Tamil autonomy is formulated, and that international human rights advocates must stop giving precedence to war crimes trials over other forms of reconciliation. Interestingly, Manikkalingam’s advice is targeted at ‘international human rights activists who have little patience for the complex domestic politics’ of Sri Lanka, and not the many champions of devolution and accountability within the country – Sinhala, Tamil and Muslim – who continue to navigate the island’s intricate politics but nevertheless believe that progress on all fronts is necessary and possible. With respect to the demand for accountability at least, Manikkalingam is at risk of mimicking the patronizing error of those he critiques in failing to recognize that the intellectual and moral leadership in respect of the demand for accountability has long shifted from those outside to those who live and work in Sri Lanka.

Manikkalingam’s article touches two recurring debates within Transitional Justice, both of them as old as the discipline itself: first, the peace versus justice debate, and second, the question of sequencing reconciliation related measures. The article suggests that because a political solution is more important than war crimes trials, the sequence in which they are unveiled should privilege a political solution with war crimes trials coming later. In this response to his article, I claim that Manikkalingam’s dichotomization of a political solution to the national question and accountability for atrocity crimes is false, but also that in sequencing reconciliation measures, it is strategically better to establish the legal architecture to try atrocity crimes earlier rather than later.

The argument that a political solution to Sri Lanka’s national question overshadows the importance of prosecuting few perpetrators has a certain intuitive appeal. Yet, this analysis does not account for the role of unpunished atrocities in fuelling the ethnic conflict, and is therefore superficial. The Tamil political mobilization for equality in Sri Lanka predated independence and at least since independence has been consistently visited with unpunished violence in escalating degrees. Each unpunished episode of violence – what we would now call mass atrocity crimes – added fresh fuel to ethnic tensions and eventually to unhinged violence from both sides. The 1983 ethnic pogrom – indubitably the largest such attack against civilians of any ethnicity in post-independence Sri Lanka – quickly transformed a bothersome youth revolt into a full-fledged war of devastating proportions. Impunity and resulting violence, and the fear borne out of impunity, that this violence may be triggered at any time is thus at the heart of demand for autonomy. This is why Tamil politicians have insisted on the right to powers over police over and above fiscal and economic powers – control over physical security is, rightly or wrongly, perceived to be a more urgent and important concern. Thus, there can be no genuine settlement of the national question without ending impunity. The assumption that devolution alone – without accountability – is the panacea to the ethnic question ignores the reality that impunity for mass atrocities is inextricably linked to demands for autonomy, and that the political fallout of another mass atrocity cannot be controlled, and may permanently jeopardize any prospect for co-existence.

Manikkalingam’s article also ignore a central dynamic at play in Sri Lanka’s ethnic problem. A narrative of broken promises by national leaders lies at the heart of Tamil political consciousness. In this context, yet another failure to honour Sri Lanka’s recent promises on accountability would inevitably contribute to ethnic mistrust. The unilateral abrogation of the Banda-Chelva pact and the Dudley-Chelva pact by successive Sri Lankan governments, as well as other broken promised down the road figure extensively in any unbiased account of Sri Lanka’s ethnic troubles. Likewise, Sri Lanka’s commitments on accountability, now encapsulated in the latest United Nations Human Rights Council resolution of October 2015, form the basis of a political consensus between state and Tamil political leaders on how to deal with a past in which unspeakable atrocities were committed by both sides. Despite the vocal opposition of fringe elements within the Tamil polity, the leadership of the Tamil National Alliance negotiated with stakeholders on the fine print of the text and endorsed the resolution adopted by consensus in Geneva. Indeed, it has since claimed that the resolution is not merely a pact between the international community and Sri Lanka, but equally importantly as one between the State and the Tamil people. On that basis, it has called for the full implementation of its terms. If this pact is to be abrogated now, the abandoning of the Geneva resolution may one day come to be remembered with the same bitterness as the abrogation of the Banda-Chelva and Dudley-Chelva agreements.

Thus, treating the devolution question as distinct from that of accountability is analytically problematic, particularly given the specificities of the conflict in Sri Lanka. Any meaningful attempt to address the historical problems at the heart of the national question must ensure that impunity for mass atrocities is arrested, and negotiated agreements honoured. This requires some form of meaningful accountability for atrocity crimes on the lines suggested by the UNHRC resolution co-sponsored by Sri Lanka.

Even if one disagrees with Manikkalingam and asserts, as I do, that a political solution and accountability are inextricably linked, his prescription that accountability must be sequenced to follow constitutional reform nevertheless deserves attention. Sequencing Transitional Justice processes are a legitimate and widely used stratagem towards a variety of Transitional Justice goals. In the Latin American context of Transitional Justice in the 1980’s and 90’s, where right wing dictators either left a legacy of amnesty laws or enforced such laws on new governments through the threat of force, truth commissions helped uncover evidence of crimes and discredit former regimes, leading eventually to trials. More recently however, many countries have opted for trials and truth-commissions in tandem.

In Sri Lanka, there are no amnesty laws to overcome as in Chile and no imminent coup d’état as in the case of Argentina. Instead, a government with a two-thirds majority – albeit tenuous – holds the reigns, having promised in the Manifesto by which it came into power that the issue of justice for war crimes will be handled by national independent judicial mechanisms. The strategic question for Sri Lanka is what ordering of processes and mechanisms would optimize outcomes, rather than a question of which process has greater importance. With this in mind, I contend that the strategic considerations favour the establishment of a legal framework sooner – in mid-2016, as proposed by the Prime Minister – rather than later, after a new constitution is passed.

First, a new constitution dealing with devolution is by no means a foregone conclusion, and judging by the wrangling and delay over relatively tame issues of procedure in establishing a constitutional assembly, parking accountability till the constitution is established means a high likelihood it will never be addressed at all. Transitional Justice does take a long time, but the tough decisions are easiest taken at the ‘transitional moment’ when a government’s political capital is high and its detractors at their weakest. Unlike constitutional amendments, new laws for accountability do not require a two-thirds majority or a referendum. In this context, the wisdom of banking victories when you can makes good sense. Thirteen months down the line after a historic regime change, the window for Transitional Justice is beginning to close, and the political difficulty of establishing justice mechanisms will continue to rise. A year from now, if Sri Lanka has made no progress on accountability or on constitutional reform, the tone and timbre of Tamil politics would have shifted dramatically towards sharper rhetoric and increased frustration. If Tamil moderates are pushed out of the way, Tamil ultra-nationalists will provide their Sinhala counterparts ample fuel to end Sinhala moderates’ grip on power as well.

But critics may ask, would not the effort to pass contentious laws to enable war crimes trials reduce the available political capital for a political solution? I would claim that the government’s lack of clarity and messaging on the justice mechanisms it envisages is in any event extracting a political cost, as right-wing demagogues are provided the space to control the messaging about a future court and whip up unjustified fears of a witch-hunt against the military. This will continue, and may well intensify, even if the government parks the question of accountability for later as Manikkalingam suggests it does. One available antidote to this syndrome is for the government to be absolutely clear about what it intends to do, and establish the necessary mechanisms without delay. A sensible prosecutor could help allay fears by laying out a prosecutorial policy that makes clear to those not implicated in certain types of egregious crimes that they will not be harmed. In failing to act and projecting passivity, the government risks losing the narrative and losing support. A strategy of parking the issue for the future will only compound the problem and magnify fears.

Third, even if set up now, judicial processes including a special counsel for prosecutions will only lead to trials long after the deadline for constitution making has passed. Prosecutions of complex crimes take years to prepare, and if legislation is passed in 2016, the chances of controversial indictments and trials within the year or even early next year are vanishingly small.

For these reasons, I contend that strategic considerations demand the government move quickly to create the necessary legal framework for the trials of international crimes. This requires decisive action on its part. In this regard, the President and Prime Minister should take comfort in the fact that they have looked their political best when acting decisively. Instead, if they project weakness and timorous apprehension, the appeal of yesterday’s strong men will continue to grow.

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දශක ගණනාවක් පුරා කල ඉල්ලීම් වල ප්‍රතිපලයක් ලෙස, පසුගිය වසරේ දෙසැම්බර් මස 10 වන දින ලෝක මානව හිමිකම් දිනය සමරමින්, ලංකා රජය විසින් “බලහත්කාරයෙන් පැහැරගෙන ගොස් අතුරුදන් කිරීමෙන් පුද්ගලයන් ආරක්ෂා කිරීම පිලිබඳ අන්තර්ජාතික සම්මුතිය”ට අත්සන්කරන බවට නිවේදනය කළේය. මෙය, මෙතෙක් කල් බලහත්කාරයෙන් පැහැරගෙන ගොස් අතුරුදන් කිරීමෙන් පීඩාවට පත් වින්දිතයන් හා ඔවුන්ගේ පවුල්වල අය ලද සුවිශේෂී ජයග්‍රහණයක් සටහන් කරයි. සම්මුතියට අත්සන් තැබීම මගින් ශ්‍රී ලංකාවට යහපත් ප්‍රථිපල රැසක් හිමිවන අතර අතීතය පසෙකලා අනාගතයට පිය තැබීමට එමගින් අපට මග පෑදී ඇත.

අර්බුදකාරී වූ ශ්‍රී ලංකා ඉතිහාසයේ සෑම කාල පරිච්ඡේදයක් පුරාවටම බලහත්කාරයෙන් පැහැරගෙන ගොස් අතුරුදන් කිරීම ගැටළුවක් වී තිබිණ. මෙය ත්‍රස්තවාදය පරාජය කිරීමේ මෙන්ම දේශපාලන විරුද්ධවාදීන් මර්ධනය කිරීමේ ක්‍රමයක් ලෙස යොදා ගැණින. බලහත්කාරයෙන් පැහැරගෙන ගොස් අතුරුදන් කිරීම් පිලිබඳ එක්සත් ජාතීන්ගේ වැඩ කණ්ඩායමට ලැබුණු පැමිණිලි අතරින් දෙවැනියට වැඩිම පැමිණිලි සංඛ්යාවක් ලැබී තිබුනේ ශ්‍රී ලංකාවෙනි. එය දෙවැනි වුයේ ඉරාකයට පමණි. අනෙක් රටවලට සාපේක්ෂව ශ්‍රී ලංකාවේ ජනගහනය ඉතා අඩු වුවද බලහත්කාරයෙන් පැහැරගෙන ගොස් අතුරරුදන් කිරීම පිලිබඳ එසේ දෙවැනියට වැඩිම පැමිණිලි සංඛ්‍යාවක් ලැබීම සැබවින්ම කම්පනයට හේතු වන කරුණකි. එක්සත් ජාතීන්ගේ වැඩ කණ්ඩායමට අනුව ශ්‍රී ලංකාව තුල බලහත්කාරයෙන් පැහැරගෙන ගොස් අතුරුදන් කිරීම් පිලිබඳ වගකීම ත්‍රිවිධ හමුදාව, පොලිසිය, එල්.ටී.ටී.ඊ. සංවිධානය සහ අනෙක් පැරාහමුදා කණ්ඩායම් වලට පැවරෙනු ඇති.

2015 වසරේ නොවැම්බර් මස එක්සත් ජාතීන්ගේ වැඩ කණ්ඩායම ශ්‍රී ලංකාවට පැමිණි අවස්ථාවේදී ඔවුන්ට වැටහී ඇත්තේ තවමත් රට පුරාම වින්දිතයන් පීඩා විදින බවයි. මේ වනවිට බූස්ස රැඳවුම් කදවුරේ වසර ගණනාවක් තිස්සේ නීතීඥ සහය ලබා ගැනීමට අවස්ථාවක් නොමැතිව සිටින රැඳෙවියන් හමුවීමට එක්සත් ජාතීන්ගේ වැඩ කණ්ඩායම කටයුතු කලේය. එසේම ත්‍රීකුණාමලයේ නාවික හමුදා කඳවුරෙහි තිබු රහසිගත භූගත කඳවුරක් පිලිබඳ සාක්ෂි අනාවරණය කර ගැනීමටද මෙම කණ්ඩායමට හැකි විය.

බලහත්කාරයෙන් පැහැරගෙන ගොස් අතුරුදන් කිරීමට එරෙහිව කටයුතු කිරීමට අවශ්‍ය නිර්දේශ රැසක් පසුගිය වසරේ එක්සත් ජාතීන්ගේ වාර්තාවේ අඩංගු වී තිබිණ. ඉන් එකක් වුයේ ශ්‍රී ලංකාව තුළ බලහත්කාරයෙන් පැහැරගෙන ගොස් අතුරුදන් කිරීම පිලිබඳ අන්තර්ජාතික සම්මුතිය සම්මත කිරීමයි.

මෙයට අත්සන් තැබීම ශ්‍රී ලංකාවට නොයෙක් ආකාරයෙන් වාසි දායක වේ. එය බලහත්කාරයෙන් පැහැරගෙන ගොස් අතුරුදන් කිරීම ‘සන්තන අපරාධයක්‘ ලෙස හඳුන්වයි. බලධරියා විසින් ප්‍රතිචාර දක්වා අතුරුදන් කළ පුද්ගලයාගේ ඉරණම පිලිබඳ කරුණු පැහැදිලි කරන තෙක් එය අපරාධයක්ව පවතී. සම්මුතියට අනුව රැඳවියන් මෙන්ම ඔවුන්ගේ පවුල් වල අයද වින්දිතයන් වේ. එසේම එමගින් වරදකරුවන් නීතිය හමුවට ගෙන ඒමට ශ්‍රී ලංකාවට වගකීමක් පවරනු ලබයි. රජය විසින් විමර්ශන පවත්වා, පැමිණි ගොනු කර බලහත්කාරයෙන් පැහැරගෙන ගොස් අතුරුදන් කිරීම සම්බන්ධ වරදකරුවන් හා ඔවුනට අනුබල දුන් අයවලුන් හට දඬුවම් පැමිණවිය යුතුය.

එසේම අනාගතයේ එවැනි බලහත්කාරයෙන් පැහැරගෙන ගොස් අතුරුදන් කිරීම් සිදු නොවීමට වග බලාගැනීම තහවුරු කිරීම සඳහා පියවර ගැනීමටද මෙම සම්මුතිය මගින් රජය වෙත වගකීමක් පවරා ඇත. රැඳෙවියන්ගේ නාම ලේඛනයක් පවත්වා ගෙන යාම සහ ඔවුන් නීත්‍යානුකුල ස්ථානයන්හි රඳවා තැබීම, ඒ අතර වේ. සෑම රැඳෙවියෙකුටම තම පවුලේ සාමාජිකයන් සහ නීතීඥවරුන් සමග සන්නිවේදනය කිරීමට අවස්ථාව ලබා දිය යුතුය. ඒ හා සමානවම රඳවා තබා ගැනීම පිලිබඳ තොරතුරු ලබා ගැනීමට රැඳෙවියන්ගේ පවුල් වල අයට සහ නීතිඥවරුන්ට අයිතියක් ඇත. ඔවුනට එරෙහිව වරදක් සිදු වී ඇති විටදී රැඳෙවියන්ට මෙන්ම ඔවුන්ගේ පවුල් වල සාමාජිකයන්ටත් ඒ වෙනුවෙන් වන්දි ඉල්ලීමට හැකියාවක්ද මෙම සම්මුතිය මගින් ලබා දී ඇත.

සම්මුතියට අත්සන් තැබීම වැදගත් පියවරකි. කෙසේවුවද සාර්ථකව සම්මුතියේ ඵල නෙලා ගැනීමට නම් ශ්‍රී ලංකාව තවත් අමතර පියවර කිහිපයක් ගත යුතුව ඇත. සියල්ලටම පළමුවෙන් සම්මුතිය දේශීය නීති පද්ධතිය යටතේ බලාත්මක කල යුතු වේ. පැහැදිලිව කිවතොත් ශ්‍රී ලංකාව තුල බලහත්කාරයෙන් පැහැරගෙන ගොස් අතුරුදන් කිරීම අපරාධ වරදක් ලෙස දේශීය නීතියට ඇතුලත් කර බලාත්මක කල යුතුය. බලහත්කාරයෙන් පැහැරගෙන ගොස් අතුරුදන් කිරීම අපරාධයක් ලෙස ඇතුලත් කිරීමේදී, ඊට කිසිදු ආකාරයක වරප්‍රසාදයක් හෝ ව්‍යවස්ථාපිත සීමා කිරීමක් අදාළ නොවන බව එම නීතියේ පැහැදිලිව සඳහන් විය යුතුය. එකී පනත තවදුරටත් සියලු ආකාරයේ අපරාධ වගකීම් ආවරණය කරමින්, අණ/ නියෝග දුන් පුද්ගලයා, උපකාර කල අයවලුන් සහ නොයෙක් ආකාරයෙන් එම වරද සිදු කිරීමට හවුල් වූ සියලු දෙනා ආවරණය කල යුතුය. එමගින් ඉතා පැහැදිලිව අණදෙන්නාගේ සහ ප්‍රධානියාගේ වගකීම හඳුනා ගත යුතුය.

තවදුරටත් මෙම අපරාධය විමර්ශනය සහ ඒ සම්බන්ධ නඩු පිලිබඳ කටයුතු කිරීම සඳහා රජය විසින් නීතිය ක්‍රයාත්මක නිලධාරීන්, නීතිපති දෙපාර්තමේන්තුව සහ අධිකරණය යන සෑම අංශයකටම අවශ්‍ය වන සම්පත් සපයා දීමට සහ ඔවුන්ගේ ශක්‍යතාවය ඔප්නැංවීමට කටයුතු කල යුතුය. විශේෂයෙන්ම අධිකරණ වෛද්‍ය විමර්ශන කටයුතු සඳහා අවශ්‍යතරම් සම්පත් පහසුකම් සපයා දිය යුතු වේ.

එක්සත් ජාතීන්ගේ වාර්තාව මගින් තවදුරටත් නිර්දේශ කර තිබු කරුණක් වන්නේ රැඳෙවියන් සහ ඔවුන් රඳවා සිටින ස්ථාන පිළිබඳව ඔවුන්ගේ ඥාති හිතමිතුරන්ට තොරතුරු ලබා ගත හැකි වන අකාරයේ මධ්‍යම දත්ත ගොනුවක් රජය විසින් ගොඩ නගා පවත්වා ගෙන යාමයි. එසේම රජය විසින් ගැසට් නිවේදනයක් මගින් මේ වන විට පවත්වාගෙන යන සියලු රැඳවුම් මධ්‍යස්ථාන වල තොරතුරු ප්‍රසිද්ධ කල යුතු බවත් සියලු නීති විරෝධී රැඳවුම් මධස්ථාන වසා දැමිය යුතු බවත් නිර්දේශ කෙරින. රැඳෙවියන් සහ ඔවුන්ගේ පවුල් වල සාමාජිකයන් හට මානසික සෞඛ්‍ය පහසුකම් සැලසිය යුතු බවද එහිදී නිර්දේශ වී තිබිණ. එහෙත් මෙම නිර්දේශ ක්‍රියාත්මක කිරීමට තවමත් රජය විසින් පියවර ගෙන නැත.

එක්සත් ජාතීන්ගේ යෝජනාව යටතේ, රජය තවදුරටත් අතුරුදන් වුවන් පිලිබඳ කාර්යාලයක් පිහිටුවීමට පොරොන්දු විය. බලහත්කාරයෙන් අතුරුදන් කිරීම් වලට යටත් වූ පුද්ගලයන් අතුරුදන් වූ පුද්ගලයන්ගේ කාණ්ඩයට අයත් සුවිශේෂී කොටසකි. මෙම යෝජිත කාර්යාලය පිලිබඳව තවමත් කිසිදු විස්තරයක් අසන්නට ලැබී නැත. වින්දිතයන්, ඔවුන්ගේ පවුල් වල අය, සිවිල් සමාජ සහ පොදු මහ ජනතාව මෙම කාර්යාලය කෙසේ විය යුතුද යන කාරණය පිලිබඳව ඔවුන්ගේ අදහස් ඉදිරිපත් කිරීම ඉතා වදගත් වේ.

බලහත්කාරයෙන් පැහැරගෙන ගොස් අතුරුදන් කිරීම් පිලිබඳ වගවීම සම්බන්ධයෙන් වඩා වැඩි ඉල්ලීම් සංඛ්‍යාවක් ලැබී ඇත්තේ උතුරු සහ නැගෙනහිර පළාත් වලිනි. කෙසේවෙතත් එක්සත් ජාතීන්ගේ වාර්තාවේ සඳහන් වන්නේ බලහත්කාරයෙන් පැහැරගෙන ගොස් අතුරුදන් කිරීම ශ්‍රී ලංකාවේ සෑම ප්‍රදේශයකටම බලපෑ බවයි. ජනතා විමුක්ති පෙරමුණු කලබල සමය තුල දී ශ්‍රී ලංකාව තුල බලහත්කාරයෙන් පැහැරගෙන ගොස් අතුරුදන් කිරීම පිළිබඳව සිද්ධීන් ඉතා විශාල ගණනක් වාර්තා විය. දශක ගණනක් ගත වී තිබුනද මෙම ඓතිහාසික අපරාධයන්හි වින්දිතයන් සහ ඔවුන්ගේ පවුල් අමතක කිරීම කල නොහැක්කකි. රජය විසින් අතුරුදන් වුවන් පිලිබඳ කාර්යාලයක් පිහිටුවීමට උත්සහ ගන්නා නිසාවෙන් බලහත්කාරයෙන් පැහැරගෙන ගොස් අතුරුදන් කරන ලද වින්දිතයන්ගේ සහ ඔවුන්ගේ පවුල් වල සාමාජිකයන්ගේ ගැටළු වලට පිළිතුරු සැපයිය යුතුය.

Published in Sinhala

Sri Lanka has long played host to a culture of impunity, aggression and oppression which have stymied justice and transparency. The judicial system has also been characterized by a lack of competence and independence. The long list of unpunished murders, abductions and other crimes against victims and witnesses of state crimes have taken away almost all credibility from the justice process and have heightened the prevailing fear of speaking out. All of this has long been known and quietly acknowledged, but it seemed that nothing could or would be done to change the state of affairs. It seemed certain that victims and witnesses of state crimes would always have to testify amidst possibility of being harmed, and that the responsibility of protection would always have to be secretly arranged by civil society activists and human rights defenders.

Sudden attention was drawn to the matter of victim and witness protection in March of 2015, when, under the new government, Parliament passed the Victim and Witness Protection Act. It is an Act that was long in the making. Its initial draft was released in 2000 and was then revised under two very different governments.

In light of all this, reactions to the Act have been mixed. On the one hand, the passage of the new Act symbolizes a new openness to honest and transparent hearings and judicial proceedings. Through it, the State acknowledges that compensation ought to be given to victims and witnesses and makes provision accordingly. These developments have been welcomed both locally and internationally. However, there were concerns that the Act would not be as effective as anticipated or desired, and that it would be heavily reliant on executive decision makers within the government. Further study has shown that while the Act does bring progress in providing statutory protection and compensation to victims and witnesses, there is an overall lack of independence within the statutory bodies contemplated by its provisions. .

The Act establishes a National Authority for the Protection of Victims and Witnesses as well as a Victims of Crime and Witness Assistance and Protection Division. Under the Act, both these bodies are heavily controlled by executive functionaries which would militate against independence. The “Authority” is to be headed by a Board of Management comprising twelve members. Seven of them are to  be ex officio members of ministries and the remaining five are to be appointed at the discretion of the President. This arrangement leaves the Board being virtually controlled by the government of the day, thereby compromising its autonomy. As Aruni Jayakody points out in “Victim and Witness Protection: The Need for Further Reform”, the Act also fails to provide for the participation of practitioners and experts, privileges state functionaries over civil society activists, human rights defenders and religious leaders who have long been working to provide protection to victims and witnesses. The Authority has the mandate to make general recommendations to other government departments and agencies on the matter of victim and witness protection. However, these recommendations are not binding and even the Division, which has the responsibility to provide the protection required, does not have a legal obligation to follow recommendations issued by the Authority.

Under the Act, the “Division”, headed by a Senior Superintendent of Police nominated by the IGP, has the authority to design and implement a Victims and Witness Assistance Programme according to guidelines issued by the Authority. This Division is mandated with the task of investigating complaints of threat or violations committed against victims or witnesses as well as investigating offences committed under the Act. Given the nature of crimes to be investigated by the Division – which are likely to include criminal activity by state functionaries including the police – it is necessary and desirable that the Division be financially and administratively independent from the regular police hierarchy, and should report to the Authority, be paid by the Authority and be under the disciplinary control of the Authority. In terms of the Act however, the independence of the Division is severely compromised by the fact that it is not insulated from the regular police hierarchy. Instead, it is left open to interference from fellow police officers or their superiors in the chain of command. Bearing in mind the culture of impunity that has plagued the police and security forces, this state of affairs is dangerous as it could place the protection of victims of witnesses of state crimes in the effective control of perpetrators of those very same crimes.

Without effective control by an independent Authority over the Division, a credible victim and witness protection programme cannot established. The flaws in the existing Act threaten to derail any progress possible through the enactment of the Act, but more critically, threaten the safety and security of victims and witnesses it ought to protect.

The mixed reactions to the Act are therefore entirely understandable. The UN’s OISL Report and the Human Rights Council Resolution on Sri Lanka of 2015 reflect this ambivalence. Both documents welcomed the new law on victims and witness protection, but then stressed the importance of reviewing and strengthening the protection afforded by the Act. The OISL Report was particularly critical of the the lack of independence of the Authority and the failure by the Act to insulate the Division from the police command structure. The Resolution welcomed the commitment made by the Sri Lankan government in the Foreign Minister’s speech to review the Victim and Witness Protection Act.

The importance of revising the Act in line with the government’s commitments cannot be overstated. When victims and witnesses participate in Transitional Justice mechanisms – whether judicial or nonjudicial  – they risk revictimization, whether in their interaction with state functionaries, or in their treatment through the trial process. Sri Lanka’s recent history has seen police and security personnel prioritize administrative efficiency at the expense of victims and witnesses, while in other cases they threaten and pressure witnesses and their families to drop human rights cases or to stop them from participating in proceedings. Were these violations to occur in relation to the functioning of the Special Court, the Truth Commission or the Office of Missing Persons, the mechanisms would turn into sham procedures, notwithstanding other positive features. Victims and witnesses whose testimony could bring to light important information would be too afraid to publicly denounce the wrongdoers, who would then evade justice yet again. The lack of independence in a victim and witness protection programme could undermine all efforts to look at the past honestly and constructively. Seeing how vital the immediate revision of the Act is, we cannot let it rest on the back burner. Swift progress in revising the Act must precede the establishment of Transitional Justice mechanisms. In planning out their course of action, the government must be pressured to fulfill its promised, and to do so now. Victims and witnesses must be able to participate in the coming mechanisms with an assurance that the State bears responsibility for their protection, that they will be fairly compensated for the harms suffered and that they will not be harmed by outside parties or by the Division assigned for their protection. To delay the revision of the Victim and Witness Protection Act 2015 is to prolong fear. To prolong fear is to deny truth and justice.

Published in English

1. Introduction

The Assistance to and Protection of Victims of Crime and Witnesses Act (the Act) was passed by the Sirisena administration in February 2015. On several counts, the Act marks progress. First, it provides for a range of statutory rights that seek to facilitate victims‟ participation in the criminal justice process. Second, for the first time, it establishes a witness protection program. However, a close look at the Act reveals that there are number of shortcomings in the institutional arrangements underpinning the Act. The two bodies created to implement the Act lack adequate independence. The first body, a National Authority for the Protection of Victims and Witnesses (the Authority) largely consists of senior public servants holding office ex-officio. The Authority has significant powers to set normative standards relating to protection issues, as well as to oversee the implementation of the Act. Thus, it is imperative that there be strong leadership with relevant skills and experience, that can establish a strong victim and witness centered approach within the organization. The second body, a Victims of Crime and Witness Assistance and Protection Division (the Division), established by the Inspector General of Police (IGP), is not mandated to be independent from the rest of the police force. This is highly problematic given that historically, the police have been accused of perpetrating threats and reprisals against victims and witnesses.

The first part of this paper examines the institutional arrangements underpinning the Act. Section one examines the composition, mandate and powers of the Authority, as well as the functions of the Division and argues that there are insufficient safeguards to ensure their operational autonomy.

The second part examines the range of victims‟ rights provided under the Act against international standards. The Act facilitates a range of rights for victims, including a right to redress, right be kept informed, right to participation in the criminal justice process and right to compensation. Each of these rights are assessed against international standards, and the practice of comparative jurisdictions.

Additionally, the Act creates a witness protection scheme, largely following international best practice when it comes to the specific protective measures available. However, there is a missing piece, in that it does not specify what criteria should be taken into account when determining whether a witness should be given protection. This problem is made worse by the fact that the Division created within the police force to implement the protection scheme is insufficiently independent.

Finally, the third part of this paper examines the current political context, and argues that significant political will and financial resources are required to implement the Act. Given the historical context where law enforcement authorities have been repeatedly accused of perpetrating abuse, it is essential that the government advance wider institutional reform. Another important consideration is the fact that the government has promised a “credible domestic mechanism”.1 No matter what shape such a mechanism takes, strong victim and witness protection must be a pre-condition to any transitional justice mechanism. Therefore, reforms to the Act, and its implementation must be a priority for the new Government.

2. Background and rationale for Victim and Witness Protection

In addition to the direct physical, mental, and material harm suffered by victims of crime, they can also experience secondary forms of victimization through their participation in the criminal justice process. This type of re-victimization can take place through their interactions with law enforcement officials as well as through their treatment during the investigation and trial process. At times law enforcement officials and judicial officers may prioritize administrative convenience over the interests of the victims. In response, criminal justice systems around the world, have developed standards that seek to promote the best interests of the victim at every stage of the criminal justice process. Similarly, the ability of witnesses to come forward with information and to testify during trial is critical to the success of criminal trials. In response, many countries around the world have adopted protection frameworks to facilitate witness participation in the criminal justice process without fear of intimidation or reprisals.

In Sri Lanka, for many decades, the lack of any witness and victim protection framework has been a key concern undermining the criminal justice system. There have been numerous cases of law enforcement authorities and others intimidating or otherwise pressuring victims, witnesses and their families to either drop human rights cases, or stop them from participating in proceedings.2 One of the most infamous attacks on a witness was the murder of Gerard Perera. In 2004, Gerard Perera, was mistakenly detained and tortured. Upon his release Perera, successfully filed a fundamental rights case. Pursuant to the findings in the fundamental rights case, six police officers were indicted under the Prevention of Torture Act. Perera was the principal witness in the case, and was summoned to provide evidence before the High Court. Tragically, a week before he was due to appear in court he was shot whilst travelling on a bus and later died from his injuries. Subsequently, the same police officers who were accused of torturing Perera, were indicted for having played a role in his death. Similarly, in the well-known case of the death of five students in Trincomalee, Dr. Manoharan, the father of one of the deceased and one of the main witnesses, was repeatedly threatened, and was ultimately forced to leave the country.3 An analysis by one scholar of judgments of the High Court where acquittals were handed down of police officers responsible for extra-judicial executions and enforced disappearances during the 1980s, suggested that one of the main reasons for the acquittals was the inconsistent testimony provided by witnesses.4

The treatment of witnesses and victims before non-judicial commissions of inquiry has also been a serious concern. Successive commissions of inquiry have been accused of failing to treat victims and witnesses with respect and fairness. Most commissions have also been criticized for their failure to adopt strategies to protect victims and witnesses at the outset of their work. The Lessons Learnt and Reconciliation Commission was criticized for its inability to get witnesses to come forward, as witnesses did not have confidence in the work of the commission, owing in part to the lack of a framework to protect victims and witnesses.5 Even the Presidential Commission to Investigate into Complaints Regarding Missing Persons has been questioned by civil society groups over its failure to adopt a victim and witness protection framework.6

Given this background, there has been a long interest in developing a formal victims and witness protection framework. Initiative for drafting a bill came from S. S. Wijeratne of the National Centre for Victims of Crime.7 In 2000, the Law Commission completed an initial draft. In 2005, the process commenced again, this time under the leadership of the then Solicitor General C.R. de Silva. A second draft was completed in 2007, and members of civil society highlighted a number of shortcomings.8 In fact as late as September 2014, when the Rajapaksa administration tabled a revised version of the 2007 draft before Parliament, members of civil society criticized a number of aspects of the bill.9 Despite these long standing objections, the Sirisena administration passed the same bill that was tabled by President Rajapaksa in September 2014.

Part I: Institutional Arrangements

1. The Authority

The Act establishes a National Authority for the Protection of Victims of Crime and Witnesses (the Authority).10 The administration and management of the affairs of the Authority is vested in a Board of Management (the Board).11 The Authority has broad powers to set normative standards in relation to victim and witness protection as well as to oversee the implementation of the Act.

a) Composition

The appointment mechanism for the Board of Management that manages the affairs of the Authority strongly favours the state. The Board of Management is constituted of twelve members, of which seven are „ex officio‟ members from the ministries of Justice, Police, Women‟s Affairs, Children, a member of the Human Rights Commission and one nominee each from the Attorney-General‟s Department and the IGP.12 The remaining five members are to be appointed solely at the discretion of the President from among persons who have experience in criminology, criminal justice system, promotion and protection of human rights or medicine.13 The President is empowered to appoint a Chairman from among members of the Board at his sole discretion. The Chairman of the Board also acts as the Chairman of the Authority.14 Given Sri Lanka‟s history of politicization of the public service, this appointment process could result in a situation where all of the Authority‟s members have close political associations with the Government. Further, the current criteria for becoming a member of the Board of Management does not place sufficient emphasis on practitioners and experts including persons with background in social services from the non- government sector.

The inclusion of persons from the non-government sector is particularly important to ensure the effective functioning of the Authority. To date, the non-government sector, in particular civil society activists, human rights defenders and church leaders have facilitated victims‟ participation in the criminal justice process, as well as protected them from reprisals where necessary. In the past, many victims and witnesses have reached out to members of civil society to seek protection when they have feared reprisals. Thus, these stakeholders who already have a significant body of experience carrying out protection work should be included, and their expertise drawn on when implementing the Act.

As seen below, Board members have significant power to set normative standards relating to protection issues. Thus, a strong Board composed of members with experience and knowledge in protection issues is critical to the proper functioning of the Authority. Additionally, there is a tendency within national institutions, including the Human Rights Commission, to privilege executive convenience and the perceived rights of state functionaries over the rights of citizens. In this context, internalizing a rights based approach with the Authority is of critical importance and will require leadership committed to that approach.

The Act further provides that the Board shall appoint the Director-General of the Authority. The Director-General must be a person professionally qualified and experienced in a “professional activity associated with the criminal justice system or law enforcement”.15 The Director-General is responsible for carrying out all duties necessary for the management and administration of the affairs of the Authority.16 The Board may delegate any functions and powers of the Authority to the Director-General. In particular, the Director-General is responsible for managing the accounts of the Protection Fund, out of which compensation is to be paid to victims.17 In practice, much of the norm setting powers assigned to the Board could be exercised by the Director-General. Therefore, it is imperative that a person of the highest integrity with a strong protection background is appointed to the post.

b) Mandate and powers

The Authority has a mandate to “develop, adopt and implement a scheme for providing assistance and protection to victims of crime and witnesses.”18 It has a broad mandate to promote best practices, develop codes of conduct, develop guidelines and make recommendations to other government departments and agencies.19 This includes a specific mandate to “sensitize public officers” including the police, Prisons Department, government medical officers, and public officers associated with probation and social services.20 The mandate further extends to conducting research into reducing incidences of crime, and ways of minimizing the impact of crime on victims and witnesses.21

Despite these broad powers to make recommendations, they are not binding on other public institutions or officials. In instances where a person or agency receiving the recommendation is unable to give effect to a recommendation, they are only under an obligation to notify the Authority and provide an explanation.22 In contrast, the Authority‟s powers to make orders or recommendations pursuant to an investigation into an alleged infringement of a right or entitlement of a victim or witness are binding.23 This inability to make generally binding recommendations is problematic given that the Division of the police charged with implementing the witness protection scheme is not legally mandated to be an independent branch within the police. Thus, given that the Division is not under a legal obligation to follow general guidelines set by the Authority, the Division is provided a significant degree of discretion in how it chooses to carry outs its functions and can similarly be vulnerable to external political interference in carrying out its work.

The Authority has broad powers to conduct investigations into alleged or imminent infringement under the Act.24 For example, it can require persons to appear before the Authority, request documents, inspect premises, as well as make appropriate orders and direct, advice or recommend adoption of such measures for the promotion and protection of the rights of victims and witnesses.25 Where a person or a public official fails to comply, they can be found to be guilty of an offence of contempt of Authority.26 In such cases, the Authority provides a certificate of its findings to the Supreme Court. This certificate may be received in evidence without additional proof by the Supreme Court which is empowered to punish the offender, unless the contrary is proved.27

The Authority has important powers to “appoint, dismiss and exercise disciplinary control over officers, consultants and advisors”.28 Additionally, the Authority is to have its own fund, out of which it could fund its expenses.29 Together these two provisions significantly strengthen the independence of the Authority. However, these provisions that provide for an independent staff are at odds with the leadership of the Authority, which primarily constitutes high-level public servants holding office ex-officio. If the leadership of the Authority is not independent of Government, it is unlikely that the outlook and overall work of the organization would also be independent.

2. The Division

The Act mandates the IGP to establish a “Victims of Crime and Witness Assistance and Protection Division” (the Division). This Division has the authority to design and implement a Victims and Witness Assistance Program, in compliance with guidelines provided by the Authority.30 The Division is to be headed by a Senior Superintendent of Police nominated by the IGP.31 In particular, the Division is under duty to investigate, by itself or with the assistance of any other police officer, complaints relating to threats, reprisals, harassment or a violation committed against victims and witnesses of crime. The Division is also under a duty to investigate any of the offences under the Act.32

However, there are no provisions guaranteeing the autonomy or independence of this Division from the hierarchy of the police. As noted above, the Authority issues recommendations and provides guidelines to other government agencies including the police and the Division on how to discharge their duties. However, given that the Authority‟s general recommendations are not binding the Division has significant discretion in how they carry out their work. Additionally, given the deep politicization of Sri Lanka‟s public institutions, this discretion does little to protect the Division from external interference in carrying out its work.

In some jurisdictions including in Australia, New Zealand and Canada, witness protection is a police function. In others such as Colombia and the Netherlands, witness protection is carried out by an independent unit within the relevant ministry, for example the ministry of justice or the interior. In a third approach, witness protection is charged to a multidisciplinary body comprising representatives from related fields including law enforcement, and the office of the prosecutor. The United Nations Office of Drugs and Crimes (UNODC), which has developed best practices in establishing witness protection, recommends that there must be organizational and administrative autonomy for the unit administering the protection program.33 Especially, where the unit is located within the police it must be operationally isolated from other law enforcement branches conducting investigations and prosecutions.

In the Bribery Commission, police officers are similarly „loaned‟ to the Commission. Throughout their time within the Bribery Commission, the police officers remain part of the police department and report to the IGP. In practice, this has meant that IGP has the power to recall these police officers at any time, potentially undermining any on-going investigations.34

The functions of the Division are such, that police officers within the Division would sometimes be expected to provide protection to victims and witnesses in cases against fellow members of the police or other public officials. In the absence of demonstrable independence, this is highly problematic. Lack of independence in how the Division functions in practice can result in re-victimization of the victim, reduce the willingness of witnesses to testify, and ultimately undermine the success of criminal prosecutions. It may well be that over time, with significant institutional reform and sustained political will, the police force would be modernized and strengthened into a public institution that has the trust and confidence of the public. However, such reform is yet to take place.

If officers of the police force are to constitute this Division, they must be administratively and financially independent from the control of the police hierarchy. For example, there must be provisions to ensure that such officers answer directly to the Director-General and the Board for the duration of their service within the Division. Similarly their salaries should be paid by Authority. Further, disciplinary control over officers serving in the Division must lie with the Authority and not the IGP.

3. Offences

In addition to creating statutory rights for victims, the Act also proscribes certain types of conduct. It is an offence to threaten a victim or witness or “any other in whom such victim or witness has an interest” with the intention of causing alarm, or causing the victim to refrain from lodging a complaint or testifying.35 Thus, the Acts makes it an offence to threaten the relatives, dependants and any other person closely associated with the victim or witness. It is also an offence to voluntarily cause hurt to a victim or witness with the intention of causing them to refrain from lodging a complaint, testifying, or to compel them to withdraw a complaint or in retaliation for a statement made or testimony that has been provided.36 These are important provisions, as in the past, there have many instances where victims have been attacked either in retaliation or with the intention of compelling them to drop a complaint.37 The Act further prohibits causing grievous hurt or wrongfully restraining a victim or witness.38

It is further an offence for an alleged suspect to give “gratification” to any other person with a view to preventing the institution of criminal proceedings.39 It is similarly an offence for a victim or witness to provide false information to the relevant authorities, with the intention of obtaining assistance.40

The provisions setting out offences do not address circumstances where public officials violate the rights of victims and witnesses in the course of their duties. This is a striking omission given the high-profile attacks against victims and witnesses perpetrated by public officials.41 This problem could be remedied by a provision identifying wrongful conduct by public officials as an aggravating factor attracting a higher penalty. Such a provision would send a strong message to public officials as well as victims and witnesses that the Act represents a break from the past and a commitment to ending impunity for official wrongdoing.

Part II: Assessing the protection against international standards

A number of non-binding international legal instruments have laid out standards relating to how victims should be treated at the investigation stage and during the trial process. The main instrument among these is the United Nations Declaration on Basic Principles of Justice for Victims of Crimeand Abuse of Power (the Basic Principles).42 International instruments advocate a number of key principles in the treatment of victims: access to justice and fair treatment; restitution from the offender; where the latter is not available, compensation from the state; and assistance to victims. At its core, these principles call on public officials to treat victims with compassion and in a manner that respects their dignity.

2.1 Rights of Victims

A range of rights of victims – both procedural and substantive – are recognized in the Act. These include the right to be treated with fairness 43; the right to redress;44 the right to be protected from harm45; and the right to be medically treated for any mental or physical harm.46 There are also a range of rights that provide for the victim to be informed and participate at various stages of the criminal justice process including at the investigation, trial and sentencing stages. The Act further provides that it “shall be the duty” of every public officer including members of the armed forces, police officers and every judicial officer to recognize, protect and promote the rights of victims and witnesses identified under the Act.47 By casting victims‟ rights under a framework of statutory rights, the Act opens the door to the enforcement of these rights through the writ of mandamus – a common law remedy available to enforce the performance of a public duty.48

a) Definition of a victim

The Basic Principles defines a victim as any person who individually or collectively, has suffered harm including, physical or mental injury, emotional suffering, economic loss or substantial impairment of fundamental rights, through acts or omissions that are violations of criminal laws operative within a state.49 A person may be considered a victim regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted.50 The definition of victim also includes immediate family, dependants of the direct victim, and persons who have suffered harm in intervening to assist victims in distress.

The Act broadly complies with this definition. A victim is defined as any person who suffers any injury, whether physical, mental, emotional, economic or other loss as a result of “an act or omission which constitutes an alleged offence under any law” or infringement of the fundamental right to be free from arbitrary detention under the constitution.51 Under the Sri Lankan constitution, law is defined only to include “any of Parliament and any law enacted by any legislature at any time prior to the commencement of the Act”.52 Thus, this excludes the victims of international crimes such as war crimes and crimes against humanity which have hitherto not been incorporated in Sri Lankan law. Notably however, as the Act links the definition of a victim to “an alleged offence”, the Act expands the protection under the Act to instances where the perpetrator has not been identified, investigated, prosecuted or convicted.

Under the Act, the definition of victim also includes “any person who suffers harm as a result of intervening to assist a person or to prevent the commission of a crime”. It further extends to the parent or guardian of a child victim, any member of the family and next of kin of a victim, dependents and any other person of significant importance to the victim. 53 The inclusion of “any other person of significant importance” goes beyond the protection afforded in the Basic Principles, and potentially includes for example, the unmarried partner of a victim.54

b) The right to redress

International standards provide that victims are entitled to access “mechanisms of justice” and “prompt redress”, as provided for by domestic legislation.55 Victims should also have access to redress through formal or informal procedures that are “expeditious, fair, inexpensive and accessible”.56 The Act echoes this language and provides that victims have the right to receive “prompt, appropriate and fair redress”57. Most jurisdictions around the world have adopted a similar approach and only permit the state to conduct prosecutions. However, in a small number of jurisdictions the right to redress is applied more broadly to allow for victims to act as a „subsidiary prosecutor‟.58 In such instances, the victim has the right to submit evidence, ask questions during the proceedings, and make observations on evidence submitted in court.59

Under the Model Code of Criminal Procedure, victims have the right to request that the Prosecutor pursue a specific investigation, collect certain evidence or take other specific measures.60 The Prosecutor is not required to comply with such requests, but must give them „due consideration‟.61 In some jurisdictions, victims may request that a superior of the prosecutor review the decision not to prosecute. In other countries including France and Israel, the victim may bring a claim to court challenging the prosecutor‟s decision.62 Where the victim is successful, the State is required to initiate prosecutions. In Sri Lanka, the victim‟s right to redress is at times adversely affected by a decision of the Attorney- General not to prosecute.63 In a number of high-profile cases, the Attorney-General has been accused of failing to properly investigate and prosecute criminal conduct, including violations of fundamental rights.64 Under the code of criminal procedure, individuals have the standing to bring a private plaint before the magistrate‟s courts.65 However, there are a number of legal and practical restrictions on the exercise of private plaints. Private plaints cannot be brought against conduct committed by public officials in the course of their duties, and the Attorney-General has the power to take over such plaints.66 A victim may also face significant challenges enlisting the cooperation of other public officials to ensure a successful prosecution. Petitioners attempts to challenge the Attorney-General‟s exercise of discretion, have also met with resistance by the Courts.67

An alternate avenue might be to provide a statutory framework to both challenge and limit the exercise of discretion by the Attorney-General. Legal commentators have recommended that the Attorney-General should be made to give reasons when issuing a nolle prosequi, and where the Attorney-General seeks to exercise discretion in bad faith, the Magistrate should be given power to take appropriate judicial action. Though this solution is not ideal, as bringing claims before courts is time consuming and expensive, if used effectively by interested parties, it could bring significant pressure on the Attorney General to revisit prosecutorial strategies. Overtime, reform within the Attorney-General‟s office must be pursued, with a view to ensuring timely, successful prosecutions.

c) The right to be kept informed

A key component of protection of victims is facilitating their participation in the criminal justice process. To this end, the Basic Principles provides that the State is under an obligation to keep victims informed of their role, as well as the progress of an investigation, a trial, sentencing procedure or any parole hearings.68 Victims must also be allowed to air their views and concerns, be present at appropriate stages of the proceedings, especially where their personal interests are affected.69 Various countries have adopted different models to adopt these standards. France has published a user-friendly book titled “A Guide to Victim‟s Rights”.70 In Australia, Canada and the United States, the police and prosecutors‟ office has assigned staff especially to address the rights of victims.71

The Act provides that the Authority or Division must provide information to victims on civil and criminal remedies that are available to them, including information on any applicable „periods of prescription‟.72 The officer in charge of a relevant police station or any other authority must provide information to the victim of the progress of an investigation.73 Similarly, the officer in charge, the authority conducting the investigation, the Attorney General or the Registrar of the Court must respond to a request from a victim to be kept informed of any dates of the non-summary inquiry, trial, or appeal, as well as the progress of proceedings.74 The relevant authority must respond to a request from the victim to know the dates fixed for the release on bail, discharge of the suspect, institution of criminal proceedings against the accused, as well as the date on which the convict would be released from prison.75 Additionally, where the victim requests such information, the Authority must provide information of any medical or social services or any other assistance that is available to the victim.76 Notably, public institutions are only under an obligation to keep the victim informed, when the latter has requested such information. This may be appropriate in relation to information relating to the criminal investigation and legal proceedings, their dates and progress. Victims may of their own volition decide they do not wish to be kept informed, or take any part in the law enforcement process. However, the state should have a positive duty to provide information to victims on medical and especially other social services available to victims. Given that health care is free in Sri Lanka, victims may naturally seek medical services from the government provider. However, victims may not be equally aware of the availability of other services such as psycho social services to help them recover from psychological trauma, if any.

d) The right to participate in proceedings

International standards provide that victims must have the right to participate in proceedings by being present as well as by making substantive contributions to the investigation and trial process.77 Where necessary, victims are also entitled to assistance, including legal representation in order to fully participate in proceedings.78

The Act facilitates many aspects of the right of participation of a victim during the investigation and trial process. It provides that victims have the right to make a complaint, and to have such a complaint investigated.79 Without prejudice to any on-going investigation, victims also have the right to be legally represented during an investigation and make any „necessary representations‟.80 Victims also have the right to be present at judicial and quasi-judicial proceedings related to the offence, except where the Court, or other relevant authority decides that the victim‟s own evidence would be „materially affected‟ if he hears other evidence or for any other reason justice can only be secured by excluding the presence of the victim during all or part of a hearing.81 Where victims wish to attend the proceedings, they also have the right to receive any assistance required.82 It is unclear what type of assistance this might include. In other jurisdictions, victims are entitled to legal representation as well as practical and emotional support. In India, impecunious victims are entitled to state funded legal aid, if they wish to participate in criminal proceedings.83 In Denmark, Norway and Sweden in addition to legal assistance, victims of sexual assault are entitled to access “support-persons” who provide practical and emotional support when victims participate in proceedings.84

In terms of the Act, victims also have the right to obtain certified copies of Cause of Death Forms, Post Mortem Reports, Medico-Legal Reports, Reports of the Registrar of Finger Prints and any other report of an expert and reports filed in the Magistrates Court by the police.85 However, a Magistrate has the power to refuse such a request, where the release of any of these documents is likely to prejudice an on-going investigation.

The Act also provides victims the right to make written communications or make representations through a legal counsel to the Attorney-General during an on-going investigation as well as judicial proceedings.86 Victims similarly have the right to make written communications or make representations via their legal representative to the investigator conducting the relevant investigation, and to receive a response in return.87 Without prejudice to the prosecution, victims have the right to be legally represented at the non- summary inquiry, trial, appeal, and application in revision stage of the proceedings.88 Where available, victims have the right to be provided with legal assistance for such purposes.89 It is unclear whether this legal assistance is to be provided through counsel from the prosecution‟s office or via a state-funded legal aid mechanism. Given that legal aid in Sri Lanka is already under a significant resource strain, this scheme is likely to limit participation to victims able to afford their own legal representation. It is also notable that the right to make representations is qualified to „written communications‟. This qualifier may further disadvantage many victims who despite being literate may not have the sufficient level of skill to make a meaningful submission to the investigator.

Additionally, the right to make representations is qualified to judicial proceedings, and does not extend to non-judicial inquiries such as commissions of inquiry. Given that victims of crime participate in judicial and non-judicial proceedings, there is no conceivable rational basis for the limitation of the right to judicial proceedings. In this regard, it is notable that commissions of inquiry have been criticized in the past for their cursory and perfunctory treatment of victims and witnesses.90

In terms of providing evidence, a Court or a Commission has powers to take immediate steps to order special measures to protect the rights of a child victim or witness;91 to conduct part or all of the proceedings in camera;92 to adopt necessary measures to prevent the victim being harassed or influenced in any way by seeing the accused at the venue of the proceeding;93 and to prevent the identity of the victim or witness from being disclosed.94

At the sentencing stage, appeal or application in revision stage the victim may make a representation either in person or via legal counsel on the impact the offence has had on them.95 If the convicted person is being considered for the grant of a pardon, or a remission of a sentence, the victim has a right to be informed and make representations via the Authority, on the impact the offence has had on their life.96 In a number of countries around the world, including in Canada, the United States, Australia and Israel, law enforcement authorities make use of a „Victim Impact Statement‟. With the assistance of an investigation officer or the prosecutor, victims fill out a statement detailing how the offence has impacted them physically, mentally or otherwise. This then facilitates the victim‟s perspective to be included in all subsequent proceedings, regardless of whether the victim decides to personally make an intervention.

e) Compensation to a Victim

International standards distinguish between restitution from the offender, and compensation from the state.97 Restitution refers to the offender restoring the victim to the situation he was in before the offence took place. Restitution only addresses financial and other material damage, and cannot for example address situations where there has been a loss of life. Compensation is available both from the State and the offender, to address a broader range of harm suffered by the victim including physical, psychological, economic and other material forms of harm.

The Declaration on Basic Principles provides that, where appropriate, offenders should make fair restitution to victims, their families or dependents.98 Where the offender is not in a position to provide restitution, the State “should endeavor to provide financial compensation” to victims, their families and their dependents.99 This type of compensation is limited to instances where the victim has sustained significant physical or mental injuries.100 The Basic Principles calls on states to encourage the establishment of national funds for compensation of victims.101

The Act provides for a framework of compensation both from the offender and the State. The Authority has a specific mandate to promote the implementation of measures of restitution as a sentencing option in the criminal justice system.102 Upon conviction of a person before a High Court or Magistrate‟s Court, the Court may order the offender to pay compensation to the victim or witness.103 The Act does not specify the relevant grounds of compensation. When assessing the amount, the Court shall consider all relevant information, including a statement from the Government Medical officer to determine the nature and extent of the “damage, loss or harm that victim of crime may have suffered”.104 The court shall also consider submissions from the victim on the impact of the crime on the victim, as well as any compensation that has already been paid to the victim.105 Under the Basic Principles, where a public official in the course of their duties commits an offence, the State is under an obligation to provide compensation to the victim.106 However, a shortcoming of the Act is that it does not contain an analogous provision.

The maximum compensation payable by the offender to the victim is an amount not exceeding one million rupees.107 If the victim receives compensation from the offender, they are not precluded from pursuing a civil claim for damages.108 However, when determining the quantum of compensation, the civil court should take into account the amount that has already been awarded to a victim.109 The possibility of pursuing damages via civil claims is important as it opens the door for victims to pursue damages from parties other than the convict, as well as claim damages for a broader range of losses, for example including future economic loss. The Act is silent on the possibility of joining civil claims with an on-going criminal trial. Commentators as well as actual practice from comparative jurisdictions are divided on this issue, given the potential impact of joining claims on the length of criminal proceedings.110

Separate to court ordered compensation, the victim may also apply to the Authority for compensation.111 The Act provides for the establishment of a “Victims of Crime and Witness Assistance and Protection Fund” (Protection Fund), to be administered by the Board.112 The Fund may receive contributions from Parliament and gifts and donations from other local and foreign sources.113 However, there is no obligation on Parliament to regularly contribute money to the Fund. Additionally courts may deposit fines paid pursuant to convictions into the Protection Fund. Other jurisdictions also rely on mixed sources of funding, including both Government contributions as well as donations from private sources. Some countries such as France have successfully implemented more unorthodox fund raising options such as requiring a mandatory levy from each personal insurance policy.114

The Board has the power to determine the amount of compensation to be paid in instances where victims have suffered for any physical or mental harm or loss or damage to property.115 The Board does not seek to compensate for economic loss; this is in line with the standards articulated in the Basic Principles, which also limits compensation to any physical or mental harm or damage to property.116 The Board may also award compensation to the victim‟s dependent, family members or next of kin, where the victim has died or has been mentally incapacitated.117 Notably, the Act does not limit compensation from the Board to instances where the offender is unable to provide compensation. Further, Board ordered compensation is also not limited to instances where there has been a conviction. Thus, in the event the Board is able to raise funds for the Protection Fund, victims would be able to access a limited amount of compensation in a timely manner.

Additionally, separate to compensation from the Court or the Board, a victim is entitled to receive a sum of money from the Authority in consideration of any expenses incurred as a result of the offence committed, including costs associated with participating in any proceedings. It is unclear what this includes, and for example, whether it would cover at least the partial cost of the victim‟s legal representation. The Act further provides that a victim of crime is entitled to claim from the state any medical services, mental health services and rehabilitation services.118 However, this is subject to “resources being available with the State”.119 Where resources are unavailable with the state, the victim may apply to the Authority for financial assistance.120 This provision is overly vague and could potentially be used arbitrarily by decision makers to deny assistance to certain classes of victims. By framing the issue as one of resource availability, the Act fails to regulate or even address the questions of resource prioritization that are inherent in decisions contemplated by the provisions on financial assistance.

f) Privacy of a Victim

The Basic Principles only provides that judicial and administrative mechanisms should protect the privacy of victims.121 The Act does not set out a specific privacy framework for victims and witnesses. When deciding to grant protection, a court or a commission may order measures to prevent the disclosure of the identity of the victim or the witness. This specifically includes the power to direct media institutions, and other specified persons from publishing or disseminating information relating to the identity of the victim or the witness. Additionally, the Act makes it an offence to release information, other than in good faith, relating to victims and witnesses under protection to third parties who may place the life of such a victim or witness in danger.122

Under this limited framework there are no measures in place to protect the identity of victims at the complaint and investigation stage. In particular, there are also no legal protections to safeguard how information collected during the complaint and investigation stage ought to be handled. In other jurisdictions, issues concerning privacy are covered under separate legislation or through a constitutional framework. Sri Lanka does not have a right to privacy under the constitution, and to date has not enacted a statutory framework that protects the privacy of information collected by government institutions.

2.2 Witness Protection

The Act largely follows international best practice when it comes to the specific protective measures available. However, there is a missing element in the Act, in that it does not specify what criteria should be taken into account when determining whether a witness should be given protective measures. This problem is made worse by the fact that the Division created within the police force to implement the protection scheme lacks independence.

a) The Definition of a witness

The model law prepared by the United Nations Office of Drugs and Crime (UNODC), provides that a witness is anyone who has made a statement or has agreed to give evidence in relation to the commission or possible commission of a serious offence.123 The definition also includes any other person who because of their relationship with the person providing the statement or evidence may require protection.124 The Act has a broad definition of “witness” to include anyone who has provided information, lodged a complaint, made a statement in relation to a violation of a fundamental right or a human right; any person who has provided an affidavit or statement in support of a victim of crime; any person who has provided information or a communication to a commission of inquiry; and any person who has reasonable grounds to believe they would be summoned by a court to make a statement, to testify or produce a document.125 The definition of witness also includes any public official who has investigated into an alleged commission of an offence. The definition further expands to include persons such as parents or guardian of a child witness, a family member or dependent of a witness, or “any other person of significant importance to such person”.126

b) Criteria for offering Protection

The Act also does not spell out the criteria for determining a request for witness protection. Where a Court or Commission decides to adopt protective measures, they must do so on “reasonable grounds”.127 When the Division considers whether to admit a victim or witness into a witness protection program the Act merely states that the Division must conduct a “threat assessment”.128 However, there are no further guidelines on what could be considered “reasonable grounds” or a “threat assessment”. The UNODC‟s Model Witness Protection Law, for example, sets out key criteria to be taken into consideration such as the seriousness of the offence to which the statement of the witness relates; the nature and importance of that statement; and the nature of the perceived danger to the witness.129 Additionally, it might also be relevant to consider the witnesses‟ psychological profile and ability by any restrictions imposed by the witness protection program.130

c) Nature and duration of protection

The Act spells out a number of protective measures which are largely in compliance with international best practice. The specific clauses not included, such as protective measures for those administering a witness protection scheme, are presumably included by virtue of the omnibus clause permitting the Authority, Commission or Division to take “any other measure which is deemed necessary”.131 Similarly, the provisions relating to terminating the grant of protection is largely in accordance with international best practice, except that there is no obligation on the Authority, the Division, Court or a Commission to take reasonable steps to notify a witness.132

d) Testimony through Audio-Visual Linkage

The Act provides for a Commission or a Court, as a protection measure or on the grounds of expediency to receive evidence through audio-visual linkage.133 In such instances the victim or the witness must be in a remote location within Sri Lanka, and be accompanied by a public officer.134 The limitation that an individual must be present within Sri Lanka to provide evidence through audio-visual linkage has important consequences for any future truth telling or accountability mechanism. To date, many survivors, witnesses and victims of the conflict have left Sri Lanka, and evidence available to them could be useful in determining the facts of any potential case. Having access to their testimony could prove highly useful to establish facts surrounding crimes committed during and after the war. Those who have left Sri Lanka may well be unwilling to return for fear of reprisals or re-victimization. If testimony via audio-visual linkage from outside of Sri Lanka is not permissible, then important evidence and testimony could be excluded from a future mechanism.

The Court or Commission shall, on the recommendation of the Attorney General or the secretary of the relevant Minister, apply for financial and other resources from the Authority.135 However, this provision is subject to a number of broad exceptions. First, the Attorney General and the Secretary of the relevant Ministry may object on the grounds that doing so would not be in the “national interest” or that it would not be “feasible”.136 The phrase “national interest” is not defined and there are no criteria provided to assess feasibility. In such instances, the Attorney General may recommend an alternative remote location from where the witness could provide testimony.137 Where the Attorney-General expresses an opinion that receiving testimony via audio-visual linkage is “inappropriate”, the Court or Commission is bound by that opinion and the Authority is not required to provide any financial assistance or other resources.138 In practice, these broad powers given to the Attorney-General to object to testimony via audio-visual linkage essentially leaves the decision in the hands of the Attorney General. These unfettered powers given are particularly problematic given credible concerns regarding the politicization of the Attorney-General‟s office in the past.139

4. Protection of specific categories of persons

Taking special consideration of vulnerable classes of persons is critical to any effective victim and witness protection programme. Women, children, elderly, disabled and impecunious victims and witnesses may need special procedures and measures in order to fully facilitate their participation in the criminal justice process. These classes of victims may also be especially vulnerable to certain types of crimes, for example, child abuse and neglect, domestic violence, and sexual violence. Therefore it is important that the relevant authorities are vested with sufficient powers and held to appropriate standards in the interest of mitigating the impact of crime on these groups. The Act provides at the outset that a victim of crime shall have the right to be “treated with equality, fairness and with respect to the dignity and privacy of such a victim”.140 Beyond this, the Act only provides a few special measures to facilitate the participation of children. Presumably, additional guidance as to special measures for vulnerable classes of persons could be provided through regulations. However, the protection afforded to these vulnerable classes would certainly have been stronger if specific measures were included at the outset in the Act.

a) Children

The Act provides that where the victim is a child, he or she should be treated in the manner which ensures the best interests of the child.141 Specifically when offering protection to a child, a Court or Commission could include special measures to protect the rights of the child and to ensure their best interest.142 In practice, more detailed provisions are required via regulations, as well as the implementation of logistical measures, to effectively protect the rights of child victims and witnesses. For example, international best practice provides that special procedures should be used when cross-examining a child; and separate staff trained to provide tailored psycho-social support to children should be present during all stages of the criminal justice process.143

b) Persons other than victims and witnesses that are entitled to protection

An employee of an organization who provides information about the commission of an offence at his place of employment is entitled to protection against any harassment, intimidation, and any loss or damage to his reputation.144 Such employees are further entitled to protection against any adverse changes to their conditions of employment.145 The provision amounts to a limited form of whistleblower protection, allowing public officials to come clean about any misconduct at their place of employment.

3. The Context for Implementation

The Act does not specify a time period within which provisions must come into effect. Rather, it leaves the matter entirely at the discretion of the Minister. At the time of writing, more than six months has lapsed since the passing of the Act; yet no steps have been taken to implement the Act. As the government takes steps towards implementation, a number of logistical, financial and structural challenges must be carefully considered. Additionally, as the government has promised to implement a “credible domestic mechanism” to address questions of accountability relating to allegations of serious crimes by both sides during the armed conflict, the existing victim and witness protection framework must be implemented with consideration as to its role in facilitating such a mechanism.

a) Challenges to implementation

First and fundamentally, implementation of the Act requires significant financial resources. The Authority is to have its own Fund, which it could use for its expenditure. Contributions to the Fund are to come from Parliament and also from among donations, gifts from within and outside Sri Lanka. At the commencement of the Authority‟s work, all, if not most of the funds for the Authority would have to likely have to come from Parliament. The Authority is yet to set up its physical infrastructure, as well as the necessary human resources in order to carry out its work. Similarly, the Authority must have the physical reach to ensure that victim and witness protection is carried out uniformly throughout Sri Lanka, and not just in Colombo, where the Authority is likely to be physically situated. Resource constrains faced by other commissions, the Bribery Commission for instance, has demonstrated that a lack of adequate physical infrastructure and human personnel have contributed to the Commission‟s inability to carry out effective investigations.146 The Bribery Commission has complained that its investigators are overburdened, and are forced to deal with up to 80 cases per annum, when in reality each investigator is able to deal effectively with approximately five cases per year.147

The Act also provides for the rights of victims to access medical and other social services, as well as legal representation at the expense of the State. The implementation of these provisions require significant resources, both financial and human, be invested in the existing Legal Aid Commission, as well as state health and social service providers. The Act further calls for a Victims Fund, which at least at the outset of its operation would require significant contributions from Government. Additionally, the Authority is empowered to provide financial compensation to victims in consideration of expenses incurred by victims during their participation in the trial and investigation process. Clearly, the success of the Authority would largely be determined by the adequacy of the funding made available to it.

As noted at the outset, historically, the law enforcement agencies have had a poor record of protecting the rights of victims and witnesses. Over the past three decades, the police and intelligence services have been accused of breaching fundamental rights, including arbitrarily detaining individuals, committing torture, and aiding enforced disappearances and arbitrary killings. As highlighted by the Gerard Perera case, the police have been accused of intimidating, threatening and attacking victims, witnesses and their families during on-going investigations and as well as during trials. The Attorney General‟s department has a mixed record on conducting prosecutions. For example, within the first fourteen years of Sri Lanka‟s anti-torture law, the Attorney General only initiated four prosecutions despite the wide scale prevalence of custodial torture throughout Sri Lanka.148

The creation of a formal legal framework to protect victims and witnesses is a meaningful step signaling an effort to break from the past. However, additional institutional reforms must be implemented in order to restore the trust and confidence of the public in these two institutions. Law enforcement agencies in particular must take serious steps to implement strict discipline and human rights orientated approach in its work. Current public officials, both within the police and the Attorney-General‟s office must be trained to facilitate the rights of victims. This requires a holistic approach, facilitating a service orientated culture within these institutions that always seek to place the interests of victims at the core their work. If the public does not trust law enforcement agencies, and does not perceive them as safe institutions, then it is unlikely that victims and witnesses will come forward to cooperate with the criminal justice system or to seek their protection.

b) Implication for a Transitional Justice Process

To date the Government has indicated an intention to establish a “credible domestic mechanism” to address demands for transitional justice in Sri Lanka. The details of such a mechanism have not yet been made public. No matter what shape a credible mechanism takes, a strong victim and witness protection framework must be a pre-condition to its implementation.

As noted above, the Act does not cover victims of international crimes. Therefore, a truth commission or a prosecutorial authority investigating international crimes would not be able to automatically rely on the existing victim and witness protection framework. In order to remedy this, in addition to the reforms suggested in this paper, Parliament must incorporate the prohibition of international crimes within Sri Lankan domestic law.

The Act does not prohibit a commission, a court, or a prosecutorial authority from establishing its own victims and witnesses protection unit. Many international and internationalized courts have set up such units.149 Similar to victims who come before the regular criminal justice system, victims before a mechanism established to advance transitional justice must be treated with dignity and respect, and arrangements must be in place to facilitate their active participation. A witness protection program would also be necessary to ensure that victims are protected from reprisals. In practice, a transitional justice mechanism is likely to attract a large number of victims, including victims who have suffered a high degree of trauma over an extended period of time. Additionally, the type of crimes investigated or prosecuted are also likely to be highly politically sensitive, requiring carefully considered protection measures for victims, informants and witnesses.

If a transitional justice mechanism is generously funded, it may be possible for a mechanism to look after its own protection needs. Where that is not the case, existing institutions need to be capable of supporting victims who wish to engage with a mechanism. Often, a transitional justice mechanism can only provide a limited form of protection to victims and witnesses. For example, a well-funded mechanism may be able to provide witness protection for a few essential witnesses. However, witnesses who need long-term protection including re-location and change of identity would have to be supported by existing institutions.

Finally, providing a strong victim and witness protection framework should be viewed as a measure of the „guarantee of non-recurrence‟, a key component in any comprehensive transitional justice policy. Guarantees of non-recurrence aim to transform citizens into rights holders, and restore their faith in public institutions. In this regard, operationalizing a statutory victims‟ rights framework, and instituting reforms within the police and the Attorney-General‟s Department to adopt a victim-centered approach in their work, would be an important mark of progress.

Conclusion

If the new Government is serious about victim and witness protection, then further reform must take place to protect victims and witnesses. Even though the Act represents a step in a positive direction, there are significant gaps that must be addressed if there is to be effective protection of victims and witnesses. The institutional arrangements created to implement the Act lack sufficient safeguards to ensure their operational autonomy. This lack of independence in the structures that administer the protection scheme is particularly problematic given Sri Lanka‟s political context and weak rule of law culture. In particular, the Act facilitates a National Authority that is constituted of ex-officio representatives from various ministries and other appointees directly appointed by the President. The Chairman of the Authority is also appointed solely at the discretion of the President. There is insufficient emphasis on selecting individuals with strong human rights backgrounds including from the non-government sector. Given that historically, civil society stakeholders including religious leaders and human rights defenders have done much of the protection work in Sri Lanka, it is imperative that their experience and expertise be drawn upon in the establishment of a National Authority designed to protect victims and witnesses.

Secondly, the Act provides for the establishment of a „separate‟ Division within the police to implement the protection scheme. A Senior Superintendent of the police is to head the Division. However, there are no provisions to ensure this Division‟s operational independence from the rest of the police. Thus, in effect, this “independent” division would continue to answer to the IGP. The experience of other commissions, that can similarly „burrow‟ police officers, illustrate that the IGP could at will, choose to re- assign police officers at any time, undermining any on-going investigations. Additionally, given that historically, the police have been responsible for perpetrating abuses including against victims and witnesses, there could be institutional attitudes as well as personal conflicts of interest that might adversely impact how victims are treated by the Division. Unless immediate reforms are initiated to ensure the administrative and financial independence of the Division from the rest of the police force, it is unlikely to earn the trust and confidence of the public to effectively carry out its mandate.

The Act lays out a number of rights aiming to facilitate victim participation at all stages of the criminal justice process. However, these rights must be further reformed and strengthened if they are to be truly effective. In terms of witness protection, the major failure of the Act is that it currently does not lay out clear criteria for how to assess whether a victim or witness requires protection. This failure to curtail the discretion afforded to Government actors is made worse by the fact that the Authority and the Board created to administer the protection scheme are not sufficiently independent.

If the government is seriously concerned with victim and witness protection, in addition to reforming and strengthening the Act, it should take immediate steps to reform and operationalise the Act. In particular, significant political will is required to provide the Authority the necessary financial and human resources to carry out its broad mandate. The first round of appointments to the Authority is critical to ensure that strong leadership is fostered early on, that avoids the pitfalls of other similar state authorities that too often take a minimalistic view of the rights of citizens. Additionally, strong leadership, and sustained political will is also required to facilitate the high degree of inter-institutional and inter-sectoral coordination that is required to deliver the range of legal, social, and medical services promised under the Act.

Looking to the future, and how this Act might be used in a transitional justice process, further reform must be a pre-condition to any mechanisms initiated within the country. Domestic laws criminalizing international crimes must be enacted so that the definition of victim and witness includes victims and witnesses of international crimes. In particular, as a transitional justice process could potentially involve large numbers of victims and witnesses, it would be important at the outset to develop a comprehensive policy on how to effectively provide the services that victims and witnesses are entitled to under the Act

Recommendations

For the purposes of addressing the challenges identified above the following changes are recommended:

To Government:

  • In consultation with victims, and civil society, amend the Act to give effect to the following considerations:
    • Appointments to the Board should be made by the Constitutional Council. An emphasis should be placed on practitioners and experts rather than persons who merely hold “ex officio” positions within relevant sectors.
    • Specify that the Division is to be financially, administratively and operationally independent from the rest of the police force. Procedures should be in place to insulate the Division from the rest of the police force; to ensure the confidentiality of their work; as well as measures to ensure the safety of those implementing the protection scheme.
    • The Witness Protection Scheme: Identify clear criteria limiting the discretion given to the Authority and the Division when determining whether a victim or witness is entitled to protection.
    • Right to Redress: Amendments should be made to the Code of Criminal Procedure, to require the Attorney-General to provide reasons for issuing nolle prosequis. Additionally the Magistrate should be given power to take appropriate legal action whenever the Attorney- General acts in bad faith.
    • Right to Participate: Provide for the mandatory use of a Victim Impact Statement, to be completed by the victim with the assistance of law enforcement authorities.
    • Compensation: State health care providers should be under an obligation to prioritize victims and witnesses in need of medical services, including mental health services.
    • Victim Protection: Adopt a holistic national policy on addressing the needs of victims that provides guidance to all stakeholders on common standards they should adhere to. Where necessary, a national policy should be adopted specifically relating to vulnerable classes of persons, including women, children, elderly and the disabled.
  • Allocate sufficient funding in the next budget for the effective operationalising of the Act.
  • Make credible appointments to the Board of the Authority from among persons who have strong professional experience in protection work.
  • Initiate broader reforms within law enforcement agencies in order to facilitate trust and confidence among the general public including, in particular, victims and witnesses of crime.

To Civil Society:

  • In consultation with victims and witnesses, engage with the Government for further reform and strengthening of the Act.
  • Identify appropriate persons to be appointed to the Board, and lobby the Government for their appointment.
  • Monitor the reform and implementation of the Act.

To the donor community:

  • Monitor the implementation of the Act, and provide contributions to the Protection Fund.

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The Asia Foundation, “The Legal Aid Sector in Sri Lanka: Searching for Sustainable Solutions” (2009) <https://asiafoundation.org/resources/pdfs/SriLankaLegalAid.pdf> [Accessed 31 August 2015]

The Asia Foundation, “The Legal Aid Sector in Sri Lanka: Searching for Sustainable Solutions” (2009) http://www.lk.undp.org/content/dam/srilanka/docs/governance/new/Legal%20Aid%20Review%20new%2012.pd f [Accessed 20 August 2015]

The Constitution of the Democratic Socialist Republic of Sri Lanka 1978, <http://www.priu.gov.lk/Cons/1978Constitution/1978ConstitutionWithoutAmendments.pdf> [Accessed 31 August 2015]

UN General Assembly, “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, United Nations, Treaty Series, vol. 1465, p. 85, (10 December 1984)
UN General Assembly, “Convention on the Elimination of All Forms of Discrimination Against Women”, United Nations, Treaty Series, vol. 1249, p. 13 (18 December 1979)  
UN General Assembly, “International Convention on the Elimination of All Forms of Racial Discrimination”, United Nations, Treaty Series, vol. 660, p. 195 (21 December 1965)  
UN General Assembly, “International Covenant on Civil and Political Rights” (16 December 1966) United Nations, Treaty Series, vol. 999, p. 171
UN General Assembly, “Universal Declaration of Human Rights”, 217 A (III) (10 December 1948)
UNICEF, “Children and Truth Commissions” (August 2010) < http://www.unicef- irc.org/publications/pdf/truth_commissions_eng.pdf > [Accessed 31 August 2015]

United Nations, “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power”, UN Doc. A/RES/40/34 (29 November 1985), <http://www.un.org/documents/ga/res/40/a40r034.htm> [Accessed on 20 August 2015]

United Nations, “Protocol To Prevent, Suppress And Punish Trafficking In Persons, Especially Women And Children, Supplementing The United Nations Convention Against Transnational Organized Crime United Nations”, Treaty Series,  vol. 2237, p. 319; Doc. A/55/383 (2000)  
United Nations, International Drug Control Programme, UNDCP Model Witness Protection Bill 2000, (May 2000) <https://www.unodc.org/pdf/lap_witness-protection_2000.pdf> [Accessed on 31 August 2015]

United Nations, Office for Drug Control and Crime Prevention, “Background note on „Ways and Means to Promote the Use and Application of United Nations Standards and Norms Primarily Related to Victim Issues‟” (2006 )<http://www.coe.int/t/dghl/standardsetting/victim s/event_2006-11-27_1_background_en.pdf>  [Accessed on 31 August 2015]

United Nations, Office for Drug Control and Crime Prevention, “Handbook on Justice for Victims on the use and application of the Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power” (1999) <https://www.unodc.org/pdf/criminal_justice/UNODC_Handbook_on_Justice_for_victims.pdf> [Accessed on 31 August 2015]

United Nations, Office on Drugs and Crime, “Good practices for the protection of witnesses in criminal proceedings involving organized crime” (2008) <https://www.unodc.org/documents/southeastasiaandpacific//Publications/Projects/indonesia/Good_practices_for_t h e_protection_of_witnesses_in_criminal_proceedings_involving_organized_crime.pdf > [Accessed on 31 August 2015]

United Nations, Office on Drugs and Crime, “Victims and Witnesses: Criminal Justice Assessment Toolkit” (2006) <https://www.unodc.org/documents/justice-and-prison-reform/cjat_eng/CJAT_Toolkit_full_version.pdf> [Accessed on 31 August 2015]

Victor Ivan v Sarath N. Silva ([1998] 1 Sri LR 340)  
Vvienne O‟Connor and Colette Rausch (eds), “Model Codes for Post-Conflict Criminal Justice”, (Volume II: Model Code of Criminal Procedure, USIP 2008)

Endnotes

1 Senior members of the Government including the President, the Foreign Minister and the Minister for Justice have at various points announced that the Government intends to implement a “credible domestic mechanism” to address human rights violations, including war crimes during the last stages of the war. See, Kelum Bandara, Daily Mirror,“Our foreign policy is based on practical realities, not on ideological fantasies” (24 April 2015) <http://www.dailymirror.lk/70191/our-foreign-policy-is-based-on-practical-realities-not-on-ideological-fantasies> [Accessed 31 August 2015]; Sandun A Jayasekara, Daily Mirror, “Wijedasa: Domestic inquiry will be credible”, (17 June 2015) <http://www.dailymirror.lk/76525/wijeyadasa-domestic-inquiry-will-be-credible> accessed 31 August 2015; Presidential Media Unit, The Official Government News Portal of Sri Lanka “President assures of domestic mechanism to probe alleged human rights violations during conflict”, (15 February 2015) <http://www.news.lk/news/politics/item/6194-president-assures-of-domestic-mechanism-to-probe-allegedrights- violations-during-conflict> accessed 31 August 2015

2 Kishali Pinto- Jayawardena, “The Rule of Law in Decline: Study on Prevalence, Determinants and Causes of Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment in Sri Lanka”(Rehabilitation and Research Centre for Torture Victims, 2009), 140 ; Basil Fernando, “Comprehensive Torture Prevention in Sri Lanka”, ALRC- article 2; vol. 6, no. 2, 2007 - p. 32-40 (2007)< http://www.ruleoflawsrilanka.org/resources/writings-of-basil-fernando/articles-by-basil-fernando-from-article- 2/vol.-6-no.-2/comprehensive-torture-prevention-in-sri-lanka > [Accessed 20 August 2015]

3 International Commission of Jurists (ICJ),“Authority without accountability: The Crisis of Impunity in Sri Lanka” (2012) <http://www.refworld.org/pdfid/50ae365b2.pdf > [Accessed 31 August 2015], 143

4 Kishali Pinto- Jayawardena, (n 2), 142

5 Neloufer de Mel, “The Promise of the LLRC: Women‟s Testimony and Justice in Post-War Sri Lanka”, ICES Research Paper No. 4, (2013) <http://www.ices.lk/wp-content/uploads/2013/11/the-Promise-of-the-LLRC.pdf > [Accessed 31 August 2015]

6 Bhavani Fonseka, Groundviews,“Idea for Road Map for Truth and Justice in Sri Lanka” (19 January 2015) <http://groundviews.org/2015/01/19/ideas-for-a-road-map-for-truth-and-justice-in-sri-lanka/> [Accessed 20 August 2015]

7 Sipos Rosalind, “The Draft Bill for the Assistance and Protection of Victims of Crime and Witnesses: Critique and Recommendations” (2007) <http://www.cpalanka.org/the-draft-bill-for-the-assistance-and-protection-of-victims-of- crime-and-witnesses-critique-and-recommendations/> [Accessed 17 June 2015]

8 ibid

9 Centre for Policy Alternatives, “The need for a strong victim and witness assistance and protection mechanism” (2014) <http://www.cpalanka.org/th e-need-for-a-strong-victim-and-witness-assistance-and-protection- mechanism/>[Accessed 17 June 2015]

10 The Protection of Victims of Crime and Witness Act No. 4 of 2015, s 11

11 The Protection of Victims of Crime and Witness Act No. 4 of 2015, s 12(1)

12 The Protection of Victims of Crime and Witness Act No. 4 of 2015, s 12(1)

13 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 12(b)

14 The Protection of Victims of Crime and Witness Act No. 4 of 2015, s 12(2)

15 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s15(1)

16 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 15(3)

17 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 29(5)

18 The Protection of Victims of Crime and Witnesses Act, No, 4 of 2015 s 13(q)

19 The Protection of Victims of Crime and Witnesses Act, No, 4 of 2015, s 13(1)

20 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 13(k)

21 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 13(m)

22 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 13 (2)(a)(b)

23 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 14(1)(a)(i)-(vii), S14(2)

24 The Protection of Victims of Crime and Witnesses Act, s 14(a)

25 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s14(1)(a)(i)-(vii)

26 The Protection of Victims of Crime and Witnesses Act, s 14(2)

27 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 14(4)-(5)

28 The Protection of Victims of Crime and Witnesses Act, No.4 of 2015, s 14(1)(e)

29 The Protection of Victims of Crime and Witnesses Act, No.4 of 2015, s 18(1)

30 The Protection of Victims of Crime and Witness Act, No.4 of 2015,s 20, s 19(3)

31 The Protection of Victims of Crime and Witnesses Act,No.4 of 2015, s 19(2)

32 The Protection of Victims of Crime and Witnesses Act, No.4 of 2015,s 19 (3)(b)

33 United Nations, Office on Drugs and Crime, “Good practices for the protection of witnesses in criminal proceedings involving organized crime” (2008) <https://www.unodc.org/documents/southeastasiaandpacific//Publications/Projects/indonesia/Good_practices_for_th e_protection_of_witnesses_in_criminal_proceedings_involving_organized_crime.pdf > [Accessed on 31 August 2015], 45

34 Prasanna C Rodrigo, Sunday Times,“Sri Lanka‟s Bribery Commission needs more fire-power”, (28 February 2010) < http://www.sundaytimes.lk/100228/BusinessTimes/bt10.html> [Accessed 20 August 2015]

35The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 s8(1)(a)

36 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 s8(1)(b)

37 Pinto-Jayawardena, (n 2), 47; Sipos, (n 7),2-3

38 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 8(2)(a),(b)

39 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 s 8(6)

40 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 s 8(7)

41 Pinto Jayawardena, (n 2), 149-150

42 United Nations, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. UN Doc. A/RES/40/34 (29 November 1985)  http://www.un.org/documents/ga/res/40/a40r034.htm (accessed on 20 August 2015) (Declaration of Basic Principles). See also Council of Europe Committee of Ministers, Recommendation No. R(85)11 of the Committee of Ministers to Member States on the Position of the Victim in the Framework of Criminal Law and Procedure (28 June 1985) <http://www.coe.int/t/dghl/standardsetting/victims/recR_85_11e.pdf> accessed 20 August 2015. (Council of Europe Recommendation)

43 The Protection of Victims of Crime and Witnesses Act, No 4 of 2015,s 3(a)

44 The Protection of Victims of Crime and Witnesses Act, No 4 of 2015,s 3(c)

45 The Protection of Victims of Crime and Witnesses Act, No 4 of 2015, s(d)

46 The Protection of Victims of Crime and Witnesses Act, No 4 of 2015, s 3(e)

47 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 7

48 The Constitution of the Democratic Socialist Republic of Sri Lanka 1978, article 143; H.W.R. Wade and C. F. Forsyth, Administrative Law (11th edn.,)(Oxford, 2014), p. 520

49 The Basic Principles, Annex, para 1

50 The Basic Principles, Annex, para 2

51 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 46

52 The Constitution of the Democratic Socialist Republic of Sri Lanka 1978, article 170

53 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 46

54 See for example s 2(1)(a)(b) of Directive 2012/29/EU of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/HA (25 October 2012).<file:///C:/Users/HP/Documents/Witness%20Protection%20Bill/Victiim%20and%20Witness%20Protection% 20Model%20Law%20Europe.pdf> accessed 20 August 2015

55 The Basic Principles, Annex, para 4. The right to remedy is also included in a number of international human rights standards that Sri Lanka is a party to. See for example, UN General Assembly, “Universal Declaration of Human Rights”,217 A (III)(10 December 1948), Article 8; UN General Assembly, “International Covenant on Civil and Political Rights”(16 December 1966) United Nations, Treaty Series, vol. 999, p. 171, Article 2(3); UN General Assembly, “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, United Nations, Treaty Series, vol. 1465, p. 85, (10 December 1984), Article 13; UN General Assembly, “International Convention on the Elimination of All Forms of Racial Discrimination”, United Nations, Treaty Series, vol. 660, p. 195 (21 December 1965), Article 6; UN General Assembly, “Convention on the Elimination of All Forms of Discrimination Against Women”, United Nations, Treaty Series, vol. 1249, p. 13 (18 December 1979), Article 2(c)

56 The Basic Principles, Annex, para 5

57 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 3(c)

58 See the Council of Europe Recommendation, para 7, which recommends that where the state decides not to proceed with a prosecution, the victim should have the right to proceed with a private prosecution

59 United Nations, Office for Drug Control and Crime Prevention, “Handbook on Justice for Victims on the use and application of the Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power” (1999) <https://www.unodc.org/pdf/criminal_justice/UNODC_Handbook_on_Justice_for_victims.pdf> [Accessed on 31 August 2015], 38-9. (Handbook on Justice for Victims)

60 Vvienne O‟Connor and Colette Rausch (eds), Model Codes for Post-Conflict Criminal Justice, Volume II: Model Code of Criminal Procedure (USIP 2008) Page 133

61 ibid

62 Handbook on Justice for Victims (n 59), 40

63 International Commission of Jurists, (n 3), 5. The report discusses at length how the exercise of other discretionary powers by the Attorney-General including the power to withdraw prosecutions and transfer cases can also adversely impact on the right of redress of victims

64 For example in the case of Gerard Perera, the Attorney-General decided to withdraw the indictment against the officer in charge of the police station, at the time of Perera‟s torture. Even the High Court when it delivered its final verdict, noted its surprise at the Attorney-General‟s decision.  Similarly in the case of the extra-judicial killing of Richard de Zoysa, a well-known journalist, the Attorney-General was criticized for failing to take action against a police officer, who had been identified as one of the persons that abducted the deceased. See International Commission of Jurists, (n 3), 125, 13

65 Code of Criminal Procedure, article 136(1)(a)

66 Code of Criminal Procedure, Article 191(2). In a recent case, where a private plaint was brought against a Superintendent of Police for having struck the complainant, the Attorney-General intervened, and took over the prosecution, attracting much criticism. See Asian Human Rights Commission, “A man is tortured by a senior police officer and the Attorney General is taking over a private plaint filed by the victim in order to protect the police officer” (16 February 2012) <https://www.ammado.com/nonprofit/108433/articles/54741 > accessed 31 August 2015

67 See for example, Victor Ivan v Sarath N. Silva, Attorney General [1998] 1 Sri LR 340. The court held that a decision of the Attorney General to prosecute or to file an indictment could be reviewed, in a range of circumstances including “where the evidence was plainly insufficient, or there was no investigation and where the decision was based on constitutionally impermissible factors and so on”. See Kishali Pinto Jayawardena, (n 2), 100

68 The Basic Principles, Annex, para 6(a)

69 The Basic Principles, Annex, para 6(b). See also the Council of Europe Recommendation, A(1)-(3)

70 The Handbook on Justice for Victims, (n59), 37

71 Ibid

72 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 3f(i)

73 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(f)(ii)

74 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(f)(iii), (m)

75 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(f)(iv)

76 The Protection of Victims of Crime and Witness Act, No. 4 of 2015, s 3(f)(v)

77 The Basic Principles, Annex, para 6(b), (c); See also Council of Europe Recommendation,1ID para 9

78 Ibid

79 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(g)

80 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(h)

81 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s3 (l)

82 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(m)

83 Handbook on Justice for Victims, (n59), 38

84 Handbook on Justice for Victims, (n59), 38

85 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 3(i)

86 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 3(j)

87 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, 3(k)

88 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s3(n)

89 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s3(n)

90 Amnesty International, “When Will They Get Justice? Failures of Sri Lanka‟s Lessons Learnt and Reconciliation Commission” (2011) <http://sydney.edu.au/arts/peace_conflict/docs/reports/failures_SL.pdf>[Accessed 31 August 2015], 51-52

91 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 25(3)(a)

92 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 25(3)(b)

93 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 25(3)(c)

94 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 25(3)(d),(e)

95 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s3(o), (n), (p)

96 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s3(q)

97 The Basic Principles, Annex, para 8, 12

98 The Basic Principles, Annex, para 8

99 The Basic Principles, Annex, para 12(a)

100 The Basic Principles, Annex, para 12(a); see also, Council of Europe, European Convention on the Compensation of Victims of Violent Crimes (1983) <http://conventions.coe.int/Treaty/en/Treaties/Html/116.htm > accessed 31 August 2015, article 1. (European Convention on the Compensation of Victims of Violent Crimes)

101 The Basic Principles, Annex, para 13; see also, European Convention on the Compensation of Victims of Violent Crimes, article 1

102 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 13(o)

103 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 28(1)

104 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 28(2)(a)

105 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 28(2)(b)-(c)

106 The Basic Principles, Annex, para 11

107 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 28(1)(a)

108 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 28(5)

109 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 28(5)

110 The Handbook on Justice for Victims, (n59), 38

111 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 30(1)

112 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s29 (1)

113 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015,s 29(3)

114 The Handbook on Justice for Victims, (n59), 49

115 The Protection of Victims of Crimes and Witnesses Act, No. 4 of 2015, s 29 (4)(a)

116 The protection of Victims Crime and Witnesses Act, No. 4 of 2015, s 29(4)

117 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 29(4)(b)

118 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 4 (2)

119 Ibid

120 The Protection of Victims of Crimes and Witnesses Act, No. 4 of 2015, s 4(3)

121 The Basic Principles, Annex, para 16; Council of Europe Declaration, para 15-16

122 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 s 8(8)

123 United Nations, International Drug Control Programme, UNDCP Model Witness Protection Bill 2000, (May 2000) <https://www.unodc.org/pdf/lap_witness-protection_2000.pdf> [Accessed on 31 August 2015], s 2(c)(i). (Model Witness Protection Bill)

124 Model Witness Protection Bill, s2(c)(ii)

125 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 46

126 The Protection of Victims of Crime and Witnesses Act, No 4 of 2015, s 46

127 The Protection of Victims of Crime and Witness Act, No 4 of 2015,s 25(1)

128 The Protection of Victims of Crime and Witnesses Act, No, 4 of 2015, s20(3),(4)

129 Model Witness Protection Bill 2000, s 5(a),(b),(c)

130 United Nations, Office on Drugs and Crime, “Good practices for the protection of witnesses in criminal proceedings involving organized crime” (2008) <https://www.unodc.org/documents/southeastasiaandpacific//Publications/Projects/indonesia/Good_practices_for_th e_protection_of_witnesses_in_criminal_proceedings_involving_organized_crime.pdf > [Accessed on 31 August 2015], 8

131 The Protection of Victims of Crime and Witnesses Act, No 4 of 2015, s 22(1)(f)

132 The Model Witness Protection Bill 2000, s (6) (2)

133 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 31(1)(a)-(b)

134 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 31(1), (2)

135 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 31(3)

136 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 32(1)(a)(i)-(ii)

137 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 32(1)(b)

138 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 32(2)(a)

139 The Centre for Policy Alternatives, (n 9)

140 The Protection of Victims of Crime and Witnesses Act, No, 4 of 2015, s 3(a)

141 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s3(b)

142 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 25(3)(a)

143 ECOSOC, “Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime”, Resolution 2005/20 (2005) <http://www.un.org/en/ecosoc/docs/2005/resolution%202005-20.pdf> [Accessed 20 August 2015]

144 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 6

145 The Protection of Victims of Crime and Witnesses Act, No. 4 of 2015, s 6(b)

146 Rodrigo, (n 34)

147 Ibid

148 Amnesty International, “Sri Lanka: Urgent need to prosecute security agents involved in torture”51-52(7 November 2011) <https://www.amnesty.org/en/latest/news/2011/11/sri-lanka-urgent-need-prosecute-security- agents-involved-torture/> [Accessed 20 August 2015]

149 Rhadeena de Alwis, Niran Anketell, “A Hybrid Court Ideas for Sri Lanka” p17-19 (2015) <https://drive.google.com/file/d/0B99W Bl4LrZxIUjNab2F0QW pROVU/view > [Accessed 31 August 2015], 17-19

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