1. INTRODUCTION


The end of the armed conflict in Sri Lanka saw a significantly increased level of military presence in civilian life across the country, with the military actively engaging in a variety of activities. These activities include humanitarian relief and participation in infrastructure projects, as well as engaging in profit generation through businesses and other economic ventures. This foray into economic activities and businesses by the military covers a range of sectors including hotels, restaurants, travel, leisure, and agriculture. These enterprises are spread across the country and have nationwide implications for the economy and rule of law.

This report examines these implications by discussing the following concerns and issues arising from the military’s economic activities:
 The lack of information regarding the legal and administrative frameworks within which the military engages in businesses;
 Potential unfair competition and market distortion by the military's engagement in business resulting in the crowding out of private investors;
 Lack of oversight over military businesses by the government, causing several rule of law implications regarding transparency and accountability;
 Social and economic consequences particular to the North and East as a result of the military occupying an economic vacuum.

The report concludes that the military's engagement in businesses and economic activities in Sri Lanka has led to serious consequences for the economy and rule of law. Markets are distorted, civilians are deprived of economic opportunities and state-funded or operated businesses are neither transparent nor accountable. The report recommends that these businesses be eventually managed by private or public sector entities, to ensure fair play in the market and greater transparency and accountability.

This report is informed by primary data, which was collected principally in Kilinochchi and Mullaitivu but also in Jaffna, Mannar and Vavuniya, in late 2017. It involved a series of interviews with local members of the community, CSD employees, government officials and community leaders. This report additionally relies on a literature review and secondary data from a variety of sources. Much of the data was obtained from information publicly made available by government entities.

The remainder of the report is divided into four sections. Section two will introduce the range of military enterprises and attempt to place them within the framework of their respective forces. Section three will discuss the implications for the country's economy and rule of law and examine how military business affects the market and accountability. Section four will identify the unique impact these businesses and activities have in the North and East, given the context of post-war recovery. Finally, section five will conclude and offer concrete recommendations.

2. THE ECONOMIC ACTIVITIES OF THE ARMED FORCES AND THE CIVIL SECURITY DEPARTMENT


The Sri Lanka Army (SLA), Sri Lanka Navy (SLN), Sri Lanka Air Force (SLAF) and the Civil Security Department (CSD) each have a portfolio of businesses, which are spread across various sectors. This section details these profit generating businesses, though it is important to note that it remains largely unclear how these businesses are administered or what legal oversight applies, due to the lack of information available in the public domain.

A. Businesses of the Armed Forces in the Hotel/Resort Sector


The armed forces run a number of hotels and resorts throughout Sri Lanka. These entities appear to rely on state resources for construction and their continued operations. All of the following entities were built and are operated exclusively by the respective branch of the armed forces that owns them today, and there are no records of any private investors or corporate partners being involved in their construction or operations. Moreover, armed forces exclusively staff these hotels and resorts, which do not employ civilians.

i. The Laya Group of Resorts


The Laya Group of Resorts is a luxury chain of resorts offering high-end accommodation and hospitality services. As of February 2018, the Laya Group operates resorts in four main destinations: Laya Waves in Kalkudah, Laya Leisure in Kukulegama, Laya Beach in Wadduwa and Laya Safari in Yala. Each offers a range of all-inclusive packages at competitive prices. The group also operates Laya Travels; a travel agency offering services such as air ticket reservations, visa handling and securing of travel insurance.

The Laya Group operates and functions under the SLA’s Directorate of Welfare (DoW). Although the DoW has operated hotels for SLA personnel in the past , its role was significantly enhanced after the end of hostilities in 2009 with the DoW cooperating with the Government’s policy of nation-building through urban development and tourism. The resorts of the Laya Group constitute the culmination of the DoW’s implementation of this policy.

Figure 1: Laya Safari, Yala

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Source: http://www.layahotels.lk/layasafari-gallery.php

Figure 2: Laya Beach, Wadduwa

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Source: http://www.layahotels.lk/layabeach-gallery.php

Figure 3: Laya Waves, Kalkuda

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Source: http://www.layahotels.lk/layawaves-gallery.php

Figure 4: Laya Leisure, Kukulegama

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Source: http://www.layahotels.lk/layaleisure-gallery.php

ii. Thalsevana Holiday Resort


The Thalsevana Holiday Resort is a luxury beach resort on the secluded Kankesanthurai beach. Opened in October 2010, it remains one of the only luxury resorts in Kankesanthurai and regularly attracts patrons for this reason.

Though the hotel is owned and managed by the SLA , unlike the Laya Group of Resorts, there is very little information on whether or not the Thalsevana Army Resort falls within the control of a Directorate of the SLA. This is curious as the armed forces’ command structures for accounting and reporting are based on their network of Directorates. However, it has been reported that the resort is overseen by the Security Forces Headquarters – Jaffna, which is merely a regional command, and not a central administrative arm of the SLA.

Figure 5: Thalsevana Holiday Resort, Kankesanthurai

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Source: http://www.army.lk/news/

iii. Chundikulam Nature Park Holiday Resort


The Chundikulam Nature Park Holiday Resort is one of the few resorts located near the Chundikulam Birds Sanctuary, a national park near Kilinochchi. This resort opened in January 2012 and is operated exclusively by the SLA. It is more modest than other listed resorts and hotels and offers much lower prices. It is unclear which arm of the SLA oversees administration of the Chundikulam Nature Park Holiday Resort; there are conflicting reports indicating that it is administered either by the 55th Division of the SLA or by the Security Forces Head Quarters - Jaffna.

iv. Malima Hospitality Services


Malima Hospitality Services is a real-estate group that operates a number of luxury resorts, restaurants and reception/banquet halls. Since commencing its operations in 2013, it has established properties in some of Sri Lanka’s most popular destinations. The group operates five luxury resorts: Sober Island Resort in Trincomalee, Fort Hammenhiel off the southern coast of Jaffna, Lagoon Cabanas in Panama, Weligambay Villas in Weligama, and the Golf Link Hotel also in Trincomalee. It has been reported that at least one of these properties was built on lands belonging to private citizens who had been forcibly evicted.

Malima Hospitality Services is operated exclusively by the SLN. However, there is no information regarding the administrative framework within which it operates, or which arm of the SLN oversees its operations and management. Despite media reports that Malima Hospitality Services functions under the “Sri Lanka Navy leisure sector” and that the Navy Commander is the “Chairperson” of the venture , official documentation of the SLN makes reference to neither such a “leisure sector” nor its functions. In fact, the official web-portal of Malima Hospitality Services makes no reference to it being operated by the SLN.

Figure 6: Fort Hammenhiel, Jaffna

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Source: http://www.forthammenhielresort.lk/gallery.html

Figure 7: Golf Link Hotel, Trincomalee

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Source: http://golflinkhotel.lk/location.html

Figure 8: Weligambay Villas, Mirissa

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Source: http://weligambayvillas.lk/location.html

v. Marble Beach Air Force Resort


The Marble Beach Air Force Resort is a luxury hotel in Trincomalee, which is fully owned and operated by the SLAF.

Marble Beach, Trincomalee is one of the most popular beaches in the area, and has been under the control of the SLAF from the early days of the armed conflict. After the end of the armed conflict, Marble Beach was opened to the public. However, the larger strip of beach in front of the Marble Beach Air Force Resort is claimed as a private beach exclusive to the Marble Beach Air Force Resort and access to the public remains restricted.

The resort has several accommodation options and, most significantly, offers private beach access, given that the public is restricted from accessing much of Marble Beach. Therefore, the resort remains attractive due to the privacy and seclusion offered to patrons.

The resort has been defined by the SLAF as a “non-public recreational and hospitality venture,” and was funded by the SLAF “Command Welfare Fund’. This indicates that the resort’s infrastructure was built using state/military funds, especially in light of the fact that there are no reports of the participation of private entities in the venture. Furthermore, it has been reported that all revenue from this resort is directed towards the welfare activities of the SLAF.

B. Businesses of the Armed Forces in the Reception Hall/Restaurant Sector

i. Eagles’ Lagoon View and Eagles’ Lake Side

Eagles’ Lagoon View and Eagles’ Lake Side are two banquet halls operated by the SLAF. Staffed and managed exclusively by SLAF personnel, these banquet halls are among the largest in their respective localities.

Eagles’ Lagoon View, located in Katunayake, provides a 9,000 sq. ft. fully equipped banquet hall, while Eagles’ Lake Side has a much larger fully equipped banquet hall of 17,790 sq. ft. In fact, Eagles’ Lake Side was constructed for the purpose of hosting the Commonwealth Business Forum in November 2013, and was thereafter handed to the SLAF and opened to the public. Presently, both these banquet halls are immensely popular due to their capacity and facilities.

Figure 12: Eagles Lakeside, Attidiya

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Source: http://www.airforce.lk/eagles_lakeside/gallery.html

Figure 13: Eagles Lagoon View, Katunayake

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Source: http://www.airforce.lk/eagles_lagoonview/Gallery.html

These two banquet halls are staffed exclusively by personnel from the SLAF. While individual officers of the SLAF are named as the “Managing Director” of the banquet halls, it is unclear as to how these two banquet halls fall within the administrative framework of the SLAF, or which arm of the SLF regulates matters such as the finances of these institutions.

ii. Malima Reception Halls and Restaurants


In addition to luxury hotels and resorts, Malima Hospitality Services, which is operated by the SLN, owns several reception halls. These include the Club House in Uswetekeiyawa, the Ranminithenna Reception Hall and the Poonewa Reception Hall. The Club House, Usewetekeiyawa, in particular, is a prominent reception hall with restaurant and catering facilities for receptions, private occasions and conferences. Malima Hospitality Services also operates the Light House Galley restaurant in the heart of Colombo’s commercial area.

C. Businesses of the Armed Forces in the Travel/Logistics Sector

i. Air Travel Services (Private) Limited


Air Travel Services (Private) Limited is a limited liability company that was established in November, 2010. Although technically a separate entity from the SLA, Air Travel Services is operated by and for the benefit of the SLA. Air Travel Services offers services including the reservation of airline tickets and hotels, assistance in obtaining visas and securing travel insurances.

Air Travel Services was established by former Commander of the SLA General Jagath Jayasuriya and the President of the Army Seva Vanitha branch at the time. The company continues to work in collaboration with the SLA’s Financial Management Branch, Directorate of Welfare, Directorate of Training and Directorate of Movement. Moreover, officers of the SLA are responsible for the overall management and performance of Air Travel Services.

While it is unclear how the income generated by Air Travel Services is disbursed, the company itself has stated that it provides concessionary air tickets and special tour packages exclusively to personnel of the SLA. As such, it is evident that the profits generated by Air Travel Services, or at least a portion thereof, are channelled back to the SLA.

ii. Helitours


Regarded as the “commercial arm of the Sri Lanka Air Force”, Helitours is a corporate entity that is managed by the SLAF. Although Helitours was established in 1972, operations were severely constrained during the armed conflict. However, after 2009, Helitours re-commenced operations.

At present, Helitours provides scheduled domestic flights to select destinations. The Helitours fleet consists exclusively of aircraft belonging to the SLAF and includes fixed wing and rotor wing aircraft. Given that Helitours is, fundamentally, an arm of the SLAF, all aircraft are piloted by SLAF personnel and all operations are conducted solely by the SLAF, with assistance from the Civil Aviation Authority.

D. Businesses of the Armed Forces in the Leisure/Recreation Sector
i. Whale Watching Tours


Following the end of the armed conflict, the SLN commenced operating whale watching tours to the public. Given that whale watching tours were not possible during the armed conflict, the tours became very popular and lucrative.

Initially, the SLN conducted whale watching tours in military vessels. With the expansion of operations due to increased demand, the SLN introduced whale watching tours in specialized vessels, including the luxury Princess of Lanka capable of seating 250+ people. At present, the SLN operates scheduled whale watching tours in Galle and Trincomalee.

The vessels are operated exclusively by SLN personnel and there have been no reports of the SLN partnering with any private entity for the purposes of operating and managing the tours. As such, it is a wholly SLN operated enterprise. The media has reported, however, that the SLN maintains that profits are remitted to the SLN welfare fund.

While there are private service providers who compete with the SLN’s whale watching tours, there have been reports that they find it increasingly difficult to compete with the SLN, as the SLN is capable of offering lower rates and better vessels and facilities.

ii. Eagles’ Golf Links and Eagles’ Heritage Golf Club


Eagles’ Golf Links and Eagles’ Heritage Golf Club are two golf clubs operated by the SLAF. Located in Trincomalee and Anuradhapura, respectively, these clubs are the only properties that offer golf facilities in their respective regions.

Eagles’ Golf Links in China Bay, Trincomalee was established in January 2012, and is marketed as the “only golf course along Sri Lanka's picturesque East coast”. It spreads over 171 acres, and provides an 18-hole golf course.

Eagles’ Heritage Golf Club, located within the Anuradhapura Air Force Base, is marketed as the “only golf course in Sri Lanka to be situated in the picturesque North Central Province”. Eagles’ Heritage Golf Club also has its own golf course and clubhouse.

Both these properties are owned and operated by the SLAF, and there are no reports of corporate partnerships or private assistance being rendered with respect to the functioning of the properties. Accordingly, it is wholly under the purview of the SLAF. Moreover, it is unclear if these properties report to any of the Directorates of the SLAF. Although the official website of the properties does allude to the existence of a “Board of Management” that controls these properties, there is no information available in the public domain as to the constitution or framework of the “Board of Management”.

E. Businesses of the Armed Forces in the Agricultural and Livestock Sector

i. SLA Farms under the Directorate of Agriculture & Livestock

In 2011, the SLA established the Directorate of Agriculture and Livestock (DAL). Under this new Directorate, the SLA established several agriculture and livestock farms for the dual purposes of self-sustainability and for selling agricultural and livestock products to the general public. Accordingly, since 2011, the DAL has established six large scale agricultural and livestock farms and several smaller farms, and further operates another seven farms built by the SLA’s General Service Corps.

However, even before the DAL was established, the SLA has been involved in the sale of produce to the public. In early 2011, it was widely reported that the SLA had commenced selling vegetables, which it had bought from public vendors, at prices that were lower than prevailing market prices. This was undertaken by the SLA as a means of providing relief to consumers in the wake of a sharp rise in prices of essentials in Sri Lanka at the time. It was reported that due to lower overheads such as lower transport and labour costs, the SLA was able to purchase vegetables from vendors and resell them at lower costs without bearing substantial losses.

Moreover, it has been reported that the SLA had taken steps, over the years, to further expand its farms; especially with respect to the production of vegetables and dairy products. This reveals that operations under the DAL had progressively expanded.

In 2016, it was reported that the DAL had cultivated over 100 acres of land, and had entered into a joint venture with Browns Global Farm (Private) Limited and Aththama Quality Agro (Private) Limited. Additionally, it has been reported that the SLA has been able to produce agricultural and livestock products at very low costs. There has been at least one reported instance where profits from certain SLA farms have been remitted to the SLA Welfare Fund.

Figure 9: The Karandeniya Farm, visited by Lieutenant General Jagath Jayasuriya.

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Source: http://www.army.lk/news/commander-visits-karandeniya-army-farm-mic-construction-site-0


Figure 10: The Palaly Farm, spreading over 180 acres of land, with a state-of-the-art water sprinkler system.

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Source: http://www.army.lk/news/palaly-farm-use-new-sprinkling-water-system

Figure 11: The Menik Farm, Vavuniya, which has also undertaken the cultivation of hybrid corn seeds, in addition to paddy, vegetables and seasonal crops.

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Source: http://army.lk/news/army%E2%80%99s-manik-farm-begins-production-hybrid-corn-seeds

F. Businesses of the Civil Security Department


The CSD was initially formed during the early years of the armed conflict as a voluntary armed group known as the “National Home Guard Service’, tasked with protecting border villages. As their presence grew, the CSD commenced operations in aiding the police and armed forces with security functions. In light of the growth of the National Home Guard Service, the Rajapakse administration, by Government Gazette No. 1462/20 dated 13th September 2006, officially reorganised and reclassified the “National Home Guard Service” into the “Civil Security Department’.

The functions of the CSD as listed in the government gazette include security functions such as acting as a “supplementary force” to the armed forces and assisting the police in “protecting the law & order”, as well as more civilian functions such as “assisting social welfare functions”.

Since the end of the conflict, the CSD has grown in size and function, with 23 regional Force Headquarters and 6 training schools, in areas such as Ampara, Kilinochchi, Mullaitivu, Kanthale, Puttalam, Kebithigollawa, Anuradhapura and Weli Oya. It now has over 38,000 employees including both armed forces personnel and civilian employees (the latter comprising the majority of the headcount).

In recent years, the role of the CSD has changed further. It is no longer just a provider of development-related projects but is now also a source of employment. The CSD recruits civilians to work either on CSD farms (on activities varying from agricultural work to animal husbandry), in manufacturing projects (including the manufacture of bricks, cement blocks, electric bulbs and pottery), or as pre-school teachers.

The CSD's presence in the Northern Province is unique, given the context of heavy militarisation during the course of the armed conflict and continuing after its end in 2009. The CSD's Progress Report notes this unique context, reporting that Tamil civilians in Kilinochchi and Mullaitivu were actively recruited “with the purpose of creating harmony between the Sinhala and the Tamil communities’.

As part of its drive to “create harmony”, the CSD initially recruited ex-LTTE cadres and women from Women-Headed Households (WHHs), with the majority of farm employees being women. Respondents interviewed by SACLS estimated that approximately 70% of labourers on their farms were women, and most had lost their husbands. The CSD's 2016 Progress Report indicates that most CSD employees are non-military; of this subset, 61% in Mullaitivu and 68% in Kilinochchi are women.

CSD employees work 6 days per week on farms and projects. They often make long journeys to reach their places of employment, for which the military provides no transport or travel stipend. Although security presence on the farms and projects has significantly diminished since the previous regime , one soldier is deployed to oversee each farm/project. Within the farms, respondents noted that employees are split into groups. Each group is led by a local civilian employee, but higher-level supervisors are all military personnel. All supervising and overseeing personnel are men.

The CSD's main income-generating ventures include agriculture, animal husbandry, and the manufacture of bricks, cement blocks, electric bulbs, clay pots, fertilizer, cadjans and cane products. Revenue from these activities has been drastically increasing over the years, including after the change in regime in January 2015.

Chart 1 shows that income over three years has increased from LKR 371.5m in 2014 to LKR 821.8m in 2016; indicating a growth rate of over 200% within the span of just two years.

 Chart 1: Revenue of the CSD from 2014 to 2016

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Source: 2014, 2015 and 2016 CSD Progress Reports

3. IMPLICATIONS FOR THE ECONOMY, GOVERNANCE AND ACCOUNTABILITY AT THE NATIONAL LEVEL


From five-star resorts to agricultural produce, the spread of military businesses across the country has varied implications. Although arguments have been made that the military's engagement in economic activities is beneficial to the country, within the post-conflict context of Sri Lanka there are multiple consequences that cause concern. This section will discuss these concerns for the economy (including unfair competition, loss of livelihoods, crowding out of private investment), for the rule of law and for public accountability, all of which have repercussions at a national level.

A. Economic Implications

i. Unfair Competition


The military's intrusion into the economy creates a distortion in the market, as it is able to enjoy “economic privilege” , and thereby create an environment of unfair competition. We define economic privilege as the enjoyment of benefits “such as the use of military infrastructure, tax exemptions and favouritism in public bids’ available to companies operated by the armed forces . In using such privileges, the economic activities of the military occupy market space and crowd out private investors, which can result in a loss of livelihoods and revenue for the country.

We know this from other states. In Indonesia, military involvement in the economy over the past several decades has resulted in a business empire run exclusively by the armed forces. The increased ability of Indonesia’s military to use income outside of the government budget allowances gave it increased autonomy and led to civilian authorities being undermined. As a result, the government of Indonesia had to implement measures to reduce the military’s presence and control. Pakistan's military runs multiple businesses and is currently the largest business corporation in the entire country. Similarly, in Egypt, where the military already had a very heavy presence throughout the country, the military was able to develop businesses using their many economic and political advantages. The Egyptian government has “enabled the military to create a vast business empire that enjoyed superior access to state land, had exceptional tax breaks, circumvented labour rights, and functioned outside of public accountability either by the parliament, government auditing agencies, or civilian courts”.

Sri Lanka is beginning to witness a similar trend of the military using its economic privilege to develop vast business enterprises that surpass and displace private competitors. The military's encroachment into the private sector, bolstered by economic advantages particular to the military, creates unfair competition and leads to losses for the whole economy.

The military's presence within the tourism industry is perhaps the most striking example of involvement in economic activity. With military ownership and management of resorts, leisure & recreational activities and restaurants, it is evident that the SLA, SLN and SLAF are venturing into profit-generation through activities that have no direct link to security or even national development. Furthermore, it is evident that the military is able to use its immense budget and resources to undercut market competitors due to the following significant cost-saving advantages:
a) The salaries of military personnel are included in the approved budget for the MoD and, therefore, create savings for any military-run enterprise, as the cost of labour is paid for by the state. As noted in section 2, military-run resorts and hotels are staffed by military personnel, not civilians.
b) The military have capital outlay (including buildings, vehicles, machinery, equipment and furniture) covered by their respective budget allocations that are being used for their businesses. There is no additional cost to rent or purchase necessary capital.
c) Access to existing resources and infrastructure such as land provides an economic advantage over any potential competitor who would have to incur additional costs to purchase or rent land. In the case of the Thalsevana resort, the military occupies land belonging to local civilians.

Because the military does not explicitly indicate when or where resources or budget allocations are used for economic activities, it is impossible to know the size or scale of state resources used (and the resulting cost savings). It is also possible that the prestige and authority of the military allow them to circumvent many of the bureaucratic procedures (and thereby avoid costs) that a private civilian or entity would face . Nevertheless, the following tables demonstrate significant price-cutting by military-run resorts compared to their private market competitors.

(See PDF for Table 1, 2, 3)

These figures demonstrate the ability of military businesses to offer the identical or similar services as their competitors, but charge a significantly lower price. Although the immediate economic benefits enjoyed by the military are obvious, the impact it has on competitors and potential investors or entrants to the market requires analysis.

It is possible that by undercutting competitors, as displayed in Tables 1, 2 and 3 above, military businesses create unfair competition. This in turn crowds out future investment, as the military continues to occupy space in the private sector with the ability to undercut any investors in the market. Such conditions likely act as a barrier to entry for potential private businesses .

In the case of the agricultural sector, the CSD's operations undermine the local farming economy, where farmers are already facing low incomes. The agricultural produce from the CSD farms is sold in local markets and, as shown previously in Chart 1, the revenue and profits generated by the farms are substantial. It is reported that 98% of income generated from agriculture in 2016 constituted a profit to the CSD. Similarly, total profit from all activities represents 94% of the CSD's total revenue for 2016, revealing extraordinary profit margins.

The CSD earns these high profits despite evidence that they are undercutting local farmers, thereby causing disruption and distortion in local markets. Respondents interviewed by SACLS remarked that CSD produce was sold at prices approximately LKR 10-15 lower than prevailing market prices, and that local farmers either struggle or are simply unable to compete. According to an official from the Department of Agriculture, price undercutting has forced local farmers out of the market, and some farmers have resorted to joining the CSD out of an inability to sustain their own agricultural businesses. This distortion of the agricultural market could be occurring across the country, as the CSD's operations are widespread and agriculture continues to be its greatest source of income and profit.

ii. Loss of Livelihoods and Profit


Distorting markets through unfair competition is not the only way military businesses affect the economy. These businesses also lead to the loss of livelihood opportunities and profits for civilians and the crowding out of potential investment.

This is best analysed in relation to the tourism sector. Tourist arrivals hit a record high in 2017, reaching over 2.1 million visitors. The trend is continuing; already, tourist arrivals are up 12.6% in January 2018 relative to 2017. This is not surprising, as the tourism industry has been one of the government's most significant strategies for the economy, with Prime Minister Ranil Wickramasinghe having made several economic policy statements promoting the sector as an engine for Sri Lanka's economic growth and as a mechanism to create jobs. Yet, while the government has been promoting investment and encouraging businesses to engage in the tourism industry, the military has become increasingly involved in the sector by building hotels, resorts and restaurants and providing services including air travel and whale watching, as described in Section 2. This participation by the military in the tourism sector has deprived locals from gaining employment that they would otherwise have received, had these businesses been carried out by private entities that would hire civilians. As noted, businesses run by the military - including hotels, restaurants, air travel, whale watching etc. - are staffed by their own personnel, directly unseating potential livelihood opportunities.

Furthermore, by crowding these businesses out, the profits and the tax revenue that would have been generated remain within the military and the defence establishment, and cannot be utilised by the state to be reinvested in the local economy. The military is also able to undercut local businesses due to its significantly lower incurred costs, again posing a threat to the private tourism industry that should be benefitting the local economy.

The loss of livelihood and profits experienced in the tourism sector will also be experienced by the numerous other sectors within which the military is conducting businesses.

B. Implications on the Rule of Law and Accountability


Beyond economic impacts, profit-generating business activity by the armed forces and the CSD present significant challenges to the rule of law. With almost no control or oversight by the central government or local government entities, increasing profits by military-run businesses raise serious legitimacy and accountability concerns. This “Wild West” landscape stands in stark contrast to the legal and administrative framework adhered to by other public corporations and state entities.

i. The Unfettered Discretion to Establish, Run and Possibly Expand the Businesses


It is well established that vesting unchecked power to any official or entity that exercises the authority of the state is the antithesis of the rule of law. The rule of law, by its very nature, requires the exercising of power by public officials to be in strict accordance with applicable laws and regulations, and also in a manner that is reasonable, rational and in consideration of all relevant factors.

The usual practice in Sri Lanka when there is a need for public officials and entities to be vested with powers for governing or managing public affairs is for Parliament to enact legislation. Such legislation regulates the exercise of such powers by providing guidance to relevant officials and providing for oversight by a relevant minister, who forms part of the Cabinet of Ministers. The judiciary is vested with jurisdiction to enforce the fundamental rights of the people and to review executive and discretionary decisions taken by officials and entities of the state and, thus, acts as a check on the exercise of such powers.

In stark contrast to this usual procedure adopted by the state, the profit-generating businesses conducted by the armed forces and the CSD, are set up and carried out with absolutely no control or oversight.

In terms of the legal framework, the SLA, SLN and SLAF are each governed by their respective Acts. Although these Acts set out the functions, compositions, and the duties and obligations of personnel, they do not provide for the manner in which all internal operations are to be conducted. This is, naturally, to permit the military a degree of flexibility in crafting internal practices, with the consultation of the MoD and other relevant officials, based on the exigencies of the circumstances (given that the armed forces deal with national security). Accordingly, there are no provisions which explicitly prohibit the conducting of profit-generating businesses by the armed forces in any of their respective Acts.

Nevertheless, the SLA, SLN and SLF Acts do not appear to contemplate the use of armed forces for civilian purposes such as revenue generation. Only the President can call upon the armed forces by way of a proclamation or order, upon the satisfaction of certain circumstances, for the maintaining of peace and security. Accordingly, the legal framework of the armed forces does not appear to contemplate freewheeling military-run business activity.

The CSD, likewise, was established to primarily function as a “supplementary force” to the armed forces. Although the other functions required to be fulfilled by the CSD include functions such as “assisting social welfare activities”, it cannot be reasonably maintained that the carrying out of large scale profit-generating businesses is a “social welfare activity”.

Accordingly, it is evident that the Acts of the armed forces, as well as the government gazette which lists the functions of the CSD, do not provide for the armed forces or the CSD to engage in such profit-generating businesses, which are in no way related to security. Nor are internal policies or regulatory frameworks in place. This reveals that these businesses operate at the absolute discretion of officials from the armed forces and the CSD.

The implications on the rule of law are numerous:
a) As stated earlier, almost all the businesses are run solely by the armed forces and the CSD without any private partnership. Therefore, it is plain that public assets and resources – comprising land, infrastructure, vehicles and funds from the Appropriation Bill - that are vested in the armed forces and CSD by the State for the purposes of maintaining peace and national security, are used to operate these businesses. Therefore, these public assets, resources and funds, which have been periodically vested in the military by the state for the purpose of maintaining peace and national security, are presently being grossly misappropriated by the military and CSD for purposes that are completely extraneous to maintaining peace and national security.
b) Given that there is neither a policy enforced by the MoD on the establishment and management of businesses, nor a regulatory framework which exercises oversight on the businesses, absolute discretion to establish and operate these businesses is vested in senior officers of the armed forces and the CSD. As stated earlier, there is significant uncertainty regarding the administrative framework of the majority of the businesses of the armed forces and the CSD. Therefore, unidentified senior officers within the armed forces and the CSD have unbridled discretion to misappropriate public assets, resources and funds in furtherance of profit-generating businesses.
c) The Public Trust Doctrine, which has been adopted and reaffirmed by the courts of Sri Lanka, specifically dictates that holders of public power are merely custodians of such power. As such the ultimate repository of public power is the people and, accordingly, public power must be exercised for the benefit of the people. Viewing the unfettered discretion of senior officers of the armed forces and the CSD in contradistinction with the Public Trust Doctrine, it is apparent that the businesses of the armed forces and the CSD constitute a gross abuse of the public trust. This is because the said businesses operate beyond the scope of the law, with no oversight or control being exercised by the central government or local authorities so as to be accountable to the people.
d) Although the CSD is permitted to carry out civil functions such as social welfare operations, the vast scale of its businesses and their progressive growth in revenue generation reveals that the businesses of the CSD are not merely welfare operations, but large scale profitable businesses. As such, permitting the CSD to carry on these businesses results in the dual implications of 1) the CSD being permitted to operate beyond its functions, and 2) vesting unfettered discretion in the CSD with respect to using public resources, assets and funds for profit generation.
In short, it is clear that the armed forces and the CSD presently have the discretion and authority to arbitrarily use public resources, assets and funds to generate profits, without any oversight by the state or guidance by legislation. This threatens democratic governance, public accountability and the rule of law.

It has been reported that the CSD plans on expanding their profit-generating activities, and it remains uncertain whether the tri-forces also plan on expanding their businesses. Expansion will only exacerbate existing concerns.

ii. Valuable State Lands are used for Businesses with no Benefit to the Public

As noted, the Public Trust Doctrine dictates that the state is the custodian of natural and national resources, and holds such resources for the benefit of the people. Any use of natural and national resources by the state must, therefore, have a public purpose or accrue some benefit to the public. Furthermore, the Directive Principles of State Policy in the Constitution dictate that material resources shall be equitably distributed so as best to serve the common good and that the state shall protect, preserve and improve the environment for the benefit of the community.

Several military-run businesses occupy important state lands, such as vast tracts of coastal areas in Kankasanthurai , beaches in Trincomalee and Mirissa , lands within national sanctuaries and large agricultural areas . Many of these lands were vested in the tri-forces and the CSD for security purposes at the peak of the armed conflict and have remained in their possession well after the end of the armed conflict.

Despite large scale profit-generating businesses being carried out on these state lands, it remains largely unknown if any profits generated by these businesses are transferred back to the state for redistribution. Moreover, the vast majority of these businesses are staffed and operated by military personnel and offer their products/services to the public at varying prices. Thus, it cannot be maintained that benefits such as income generation for the state or job creation accrue to the general public by the operation of these businesses. Although it may be argued that there is some benefit from steeply discounted services, there has been no cost-benefit analysis to determine whether any subsidised services (e.g., cheaper hotel rates or produce) yield a net public good.

Thus, at present, the military is in possession of vast amounts of lands and resources that are potentially being utilised in a manner that creates no benefit to the public, in complete violation of the trust with which the state granted custodianship of natural and national resources to the military.

iii. The Lack of Accounting of Profits Generated


All public entities that carry out sizable public undertakings and generate income/profits must maintain books and accounts detailing their financial affairs. In Sri Lanka, public finance is under the full control of Parliament as per the Constitution. The Constitution also provides for the Auditor General to audit the accounts of every public department, the offices of key state officials, independent commissions, local authorities and public corporations.

Generally, the state carries out businesses for revenue generation through public corporations. Public corporations are established by the state through Parliament passing legislation that creates a public corporation. The Public Corporations (Financial Control) Act No. 38 of 1971 was passed to ensure financial accountability of public corporations.

Article 154 of the Constitution and the Public Corporations (Financial Control) Act thus define the general framework for the financial control, reporting and auditing of public entities. These provisions are applicable even to public entities that do not strictly constitute public corporations.

With respect to the armed forces, their respective legislation does not contain provisions regarding financial reporting and auditing as, naturally, the military is not a profit-generating arm of the state. Nevertheless, because the armed forces are vested with public funds and resources, they publish annual statements of their income and expenditure in their respective annual performance reports. These annual performance reports generally reflect the performance of each Directorate of the respective armed forces, and indicate the income, expenditure, assets and liabilities of the directorates, if any.

Because annual performance reports reflect only the affairs of each armed forces directorate, finances of any activity conducted outside their directorates are largely omitted. As stated herein, apart from the Laya Group of Resorts controlled by the Directorate of Welfare of the SLA, it remains wholly unclear if the other businesses of the armed forces fall within the control of any Directorate. Therefore, the financial affairs of the vast majority of the businesses of the armed forces are not required to be reported and remain unspecified.

For example, the 2016 Performance Report for the SLA only reported the revenue received by tender/procurement operations. Significantly, the profits/revenue received by the SLA’s several other businesses are not reported. In a similar vein, the SLAF reported that its revenue for the year 2015 was Rs. 246 million. But it did not specify if this substantial amount of income was generated through tender/procurement operations or through its vast portfolios of profit generating businesses. The reports of the SLN are of a different form and report on the affairs of the SLN on a regional basis under broad generic headings. Thus, the SLN neither makes any specific reference to the exact nature of its affairs, nor makes specific reference or mention to any revenue/profits generated by its businesses.

It is noteworthy that the reports of the armed forces also do not indicate the percentage or value of the budgetary allocation that is directed to their profit-generating businesses. This indicates that the value or percentage of the annual budgetary allocation used to continue operating these businesses remains unknown.

As neither the Acts of the armed forces provide for accounting and auditing of any businesses, nor does the Public Corporations (Financial Control) Act apply to the armed forces, there remains uncertainty whether the accounts of the military reflect the financial affairs of the military’s profit generating businesses. Thus, while all other public corporations and entities which have sizable financial dealings produce accounts which are audited by the Auditor General, the businesses of the armed forces operate without being accountable to the Auditor General and the public.

iv. Uncertainty regarding the Disposing of the Profits Generated by Businesses
There is reason to believe that the businesses undertaken by the tri-forces and the CSD generate substantial profits. In the case of the CSD it is undisputed; the Annual Performance Report for 2016 indicated that the CSD generated a profit of LKR 774,059,787.00/- (approximately USD 4.9 million) from its businesses.

Profits are not, however, reported for businesses operated by the armed forces. Although there is evidence of the tri-forces offering lower prices/undercutting private competitors, their businesses are heavily subsidised by the state. Since all tri-forces’ businesses are staffed by military personnel who are paid salaries by the state and operate using assets and infrastructure built and maintained by the military, the overheads of armed forces’ businesses are significantly less than their competitors in the private sector. Therefore, these businesses are, in all likelihood, profitable.

Despite clear evidence the CSD earns significant profits, and apparent profitability of businesses run by the armed forces, reporting on the disposal of these profits is lax. This raises a serious concern, as it remains uncertain how profits are applied or distributed.

There is some evidence to suggest that the armed forces may have formulated their own finance directives and internal audit procedures. The SLA, for instance, has several directives in which directions are issued to offices of the SLA on the maintenance of “non-public fund accounts”. Spokespersons for the armed forces have also stated that all finances of the businesses are internally audited by military personnel.

This indicates that the armed forces, or at least the SLA, formulate their own directives on the maintenance and disposition of revenue from these profitable businesses, and have their own internal audit practices. However, this internal policy is not transparent to the general public, and there is no accountability as to how profits are distributed or remitted.

Therefore, it can be reasonably contended that a significant amount of revenue and profit accruing from profitable ventures that use public resources, assets and funds remain unaccounted for or utilised without any Parliamentary oversight. This leaves such revenue and profits to be disposed of or utilised at the discretion of officials of the armed forces and the CSD.

Given that profits generated by these businesses are, at the very least, subsidised by the state, such profits should be remitted to the state so they may be redistributed by Parliament through the Appropriation Bill, after factors such as development policies, regional investment, or public welfare have been considered. There is no indication at present that profits generated are remitted to the state, indicating that they are maintained and/or disposed of by the armed forces and the CSD.

Although the armed forces have maintained that the revenue/profits from these businesses are used for welfare and settling internal expenses of the armed forces and CSD, the lack of any reporting or accounting of profits results carries several other implications:
a) The exact value of profits used for welfare and recurrent expenditure, and any remaining total of the profits will remain unknown due to financial statements not being prepared and presented for auditing. Thus, there will be no means by which it can be determined that the profits have been used appropriately for welfare, or if they have been used at all.
b) The lack of proper accounts and financial statements also raises issues pertaining to transparency, as it cannot be determined if senior officials in the armed forces and the CSD have misappropriated the profits for irrelevant purposes or for their personal benefit.
c) Given that Parliament annually allocates funds to the armed forces and the CSD, the lack of any statement being made available to Parliament of the profits re-used by the military to cover its welfare activities and expenses will result in unnecessary allocations being made to the military. Such unnecessary allocations could be at the expense of regional development and investment in public welfare.
d) Even if it can be ascertained that the profits are used by the military to cover its welfare activities and expenditure, the fact that such significant profits are left to be used at the total discretion of senior officials of the armed forces and the CSD could lead to abuses of power or corrupt dealings. This could arise where such profits are utilised for affairs such as procurements for the businesses or if senior military officials arbitrarily decide to further expand the businesses.
Thus, it is evident that the uncertainty pertaining to the profits generated by businesses of the armed forces and the CSD has serious implications on the rule of law, as they contravene the provisions of the Constitution and permit the disposal of substantial profits at the absolute discretion of senior officials of the armed forces and the CSD.

v. Lack of Transparency from the CSD


The CSD is relatively transparent in reporting staffing, activities, income and profit. However, there is little information available as to how the CSD can afford to pay above-market salaries to its employees.

As discussed, the CSD has reported high levels of income (revenue earned from various projects), which has increased over time despite relatively steady employee numbers with estimates of staff remaining between 38,000 and 42,000 over the last four years. Though agriculture remains the largest component of the CSD's income, the income derived from "other" activities has become an increasingly significant portion of the CSD's total revenue (see Table 4). In terms of profits, the CSD reports profits at similar levels to revenues, implying that the CSD encounters minimal costs when engaging in commercial activities.

(See PDF for Table 4)

Table 5 above displays a total profit that accounts for 94% of the total income, meaning that only 6% of the income earned is used to cover costs. However, it remains uncertain as to how the CSD can afford to pay civilian employees above-market salaries and still maintain extraordinary profit margins.

An analysis of the data for 2016 from Table 4 reveals that the costs (income - profit = costs) amount to LKR 47.7mn. Assuming the annual cost borne per employee amounts to LKR 360,000 (LKR 30,000 per month for each employee), it would mean that the CSD would be capable of employing only approximately 132 civilian employees. This, however, is not possible, as the CSD's own reporting declares a staff of 37,873 civilian employees in 2016 . The CSD's reported profits, therefore, do not seem to be accounting for personnel costs and accordingly, these costs must be borne elsewhere. According to budget allocations, the CSD's expenditure in 2016 for "salaries and wages" amounted to LKR 5,984 mn , which again is insufficient to cover the salaries for all CSD civilian staff.

In these circumstances, serious concerns arise with respect to the CSD’s extraordinary ability to generate high profits while simultaneously paying their civilian staff above-market salaries from unknown sources of income, thereby bringing into question the CSD’s transparency and accountability.

Though not always the case, military involvement in profit-generating businesses has been reported to lead to corruption within the defence establishment and undue political influence by the military. Reports of the experiences of Pakistan , Cambodia and Indonesia , have revealed that there is a reasonable link between the armed forces conducting businesses and the marring of the professionalism of the armed forces. This, in turn has lead to increases in the incidences of corruption in both the defence establishment and politics. With exceedingly lax legal, regulatory, and administrative frameworks in place, there is a distinct possibility that the profit-generating businesses of the armed forces and CSD may lead to similar adverse consequences in Sri Lanka.

4. SOCIAL AND ECONOMIC IMPLICATIONS FOR THE NORTH AND EAST


Economic activities of the military are widespread and create impacts throughout the country. However, there are certain effects caused by the CSD in particular that are unique to the North and East of Sri Lanka.
The main question that emerges from the operations of the CSD in the North and East is; what are the consequences of the CSD recruiting a vast number of civilian employees in conflict-affected regions?
This section aims to analyse this question in light of the social and economic implications of the CSD's enterprises.

A. Economic Vacuum Left by Conflict

The consequences of the military's extensive involvement in economic activities in the North and East must be understood within the social and economic context of the region. As a result of the armed conflict, families and economies in the North and East have been heavily impacted by repeated mass displacement and the loss of lives and assets.
The conflict also left a substantial impact on the local economy of the North and East, with average income levels still below that of the rest of the country. All respondents interviewed, from CSD employees to government officials, agreed that the lack of jobs and low levels of income in the Vanni were serious issues . Data from the most recent Household Income and Expenditure Surveys (HIES) in 2012/13 and 2016 reveals that average household incomes in the North are significantly lower than the national average. Although Jaffna and Mannar appear to have made some progress, Kilinochchi and Mullaitivu continue to lag behind. According to 2016 data, Kilinochchi and Mullaitivu have the lowest average household incomes in the country at LKR 31,576 and LKR 31,868 , respectively. These are also the two districts that were most impacted by the final months of the conflict.
Poverty levels are far higher in these regions. Kilinochchi and Mullaitivu have the highest poverty levels in the country with a poverty headcount index of 18.2% and 12.7% , respectively, compared to the national average of 4.1%. Analysis of poverty levels by district (measured by headcount index and percentage of households in poverty), further reveals that the five poorest districts of Sri Lanka - Kilinochchi, Mullaitivu, Batticaloa, Trincomalee and Jaffna - are all located in the North and East. Additionally, indebtedness is an increasing challenge facing the Northern Province as households struggle to find sustainable, adequate livelihoods and also cope with the costs of rebuilding their homes . This combination of issues impacting the war-affected areas leaves an exposed economy, or an economic vacuum, in need of sustainable livelihood development.

B. Consequences of CSD recruitment of civilians in North and East

This economic vacuum ought to have been rectified by civilian authorities and private enterprise creating economic opportunities. Instead, the armed forces and the CSD have intervened. The vacuum makes opportunities provided by the CSD relatively attractive to economically needy communities. The monthly salary of a CSD employee is LKR 30,000, which includes ETF and EPF contributions; well above the average per capita income of Kilinochchi (LKR 8,076) and Mullaitivu (LKR 8,476). Given the high levels of poverty, low levels of income, and the dearth of decent and well-paid jobs in the North, the CSD is able to recruit locals despite the stigma attached to employment by the CSD, because employees are perceived to be military personnel and, thus, untrustworthy . This section will examine the resulting consequences of CSD employment, which have contributed to an economic dependency that cannot be sustainable in the long run.


i. Social Consequences for Women and Vulnerable Groups


The CSD aimed initial recruitment at former LTTE cadres, who over time have become employed in high numbers. Also notable: in Kilinochchi and Mullaitivu, the majority of non-military CSD employees are women, with many coming from Women-Headed Households (WHHs). These women are marginalised and have limited opportunities , leading them to seek employment by the CSD. This trend stands in stark contrast to CSD employment throughout the country. Table 5 demonstrates the percentage of CSD civilian staff that are women out of the total number of civilian staff for each regional force. With the exception of the CSD headquarters, all other regional forces are less than 30% (and, in most cases, lower than 20%) women. Even the CSD headquarters’ percentage is lower at 43%. Kilinochchi's and Mullaitivu's proportions of women, by contrast, stand markedly higher at 68% and 61%, respectively.

 (See PDF for Table 5)

In the North, the CSD purposefully recruited among WHHs and ex-LTTE cadres for employment. It could be argued that these are the most marginalised groups who are the most in need of livelihood opportunities. However, CSD employees in the North and East are made more socially vulnerable as a result of their employment.
Locals recruited to the CSD report facing mistrust and contempt within their communities, as they are perceived to be military personnel. Such stigma and suspicions further alienate already marginalised groups, increasing their dependence on the CSD for their livelihoods and their vulnerability to potential exploitation by the CSD. Women are in a particularly precarious position. Even where the majority of CSD employees are women, all group leaders and military supervisors are men. This creates a gendered power imbalance that exacerbates the women's vulnerability and raises their likelihood of stigma from working for the CSD.

ii. Indebtedness


The CSD draws employees who are most in need of the above-market salary of LKR 30,000. However, once they commence employment, CSD employees face the possibility of becoming trapped in their jobs due to indebtedness. The CSD recently introduced loans of LKR 1,000,000 to farm employees, with interest repayments deducted from monthly salaries. Respondents suggested that around half of the employees in all CSD farms had taken out these loans. Most of these loans were taken for the purpose of constructing housing and were perceived as particularly attractive given that sources for similar loan sizes are scarce. For example, one respondent interviewed by SACLS previously received a loan from an NGO for approximately LKR 500,000 and found it insufficient to cover housing costs.
Although all CSD farm employees are entitled to leave their jobs at any given time, those who have taken out loans are not permitted to leave until the loan is repaid. Respondents were uncertain of how long it would take to repay the loan as interest payments were simply deducted from their monthly salary. The result is that CSD employees face the possibility of being trapped in their employment for long periods of time.
Indebtedness is an increasingly worrying problem across the country. However, the situation is worse in areas affected by the conflict, particularly in the North where finance companies and banks rapidly set up operations after the opening up of the northern economy . The rise in unregulated loans offered by finance and microfinance companies has led to people becoming trapped in debt due to high interest rates, which in turn has had negative consequences . As a result, the provision of these sizeable loans from the CSD, with a problematic requirement to remain employed by the CSD, can lead to further indebtedness and dependency. In Kilinochchi and Mullaitivu, women form the majority of CSD employees and therefore bear disproportionate risk for indebtedness from CSD employment.

iii. Suppression and Surveillance by the CSD


CSD employees face further alienation from their communities due to strict rules imposed by the CSD, which in certain instances suppress their civil and political rights. Participation in protests by employees is prohibited unless sanctioned by the SLA – in which case, CSD employees have been compelled to recite protest slogans crafted by the SLA. This requirement not only disallows civil and political activism initiated by the community, but also allows for the exploitation of CSD employees to further the CSD’s agenda.

This suppression of CSD employees adds to the perceptions of staff as military personnel, further fuelling the stigma associated with CSD employment. This sentiment is also fostered by the surveillance of CSD employees on the farms , which creates a perception that the participation of the armed forces and the CSD in businesses aims not only at profits but also at covert surveillance. A perception of constant surveillance creates a chilling effect and stifles political dissent and activism within communities.

5. CONCLUSIONS AND RECOMMENDATIONS


As this report shows, the armed forces and the CSD are involved in profit-generating activities and businesses across a range of sectors, from tourism to agriculture, throughout the country. Each arm of the tri-forces (SLA, SLN and SLAF) and the CSD runs multiple projects and businesses that present significant implications at a national level for the economy and rule of law. The armed forces and CSD are able to distort market forces given their vast resources and cost advantages, resulting in unfair competition and loss of economic opportunity for the citizenry as a whole. With no apparent oversight and little accounting of profits, the net result is that valuable state land and assets are being used without any apparent benefit to the public.

The current situation is unsustainable and poses serious concerns for both the country as a whole and war-affected communities in the North and East. If the state undertakes business activities, it must do so through entities that are sufficiently regulated and accountable to overcome the major economic and rule of law implications currently posed.

It is self-evident from the enabling Acts and gazette that Parliament did not envision the SLA, SLN, SLAF and the CSD to serve profit-generating roles. One could argue that the solution would be to introduce strict regulations and operating procedures to the armed forces and the CSD and permit their continued profit-generation. However, such a position would be impractical. The armed forces and CSD constitute specialised and highly regimental arms of the state and are vested with the important function of maintaining national security. To burden the armed forces and the CSD with regulations concerning profit generation and oversight would obstruct this essential role.

A more appropriate course of action is for public corporations, joint ventures, or the private sector to undertake and carry out businesses that are currently operated by the armed forces and CSD. There already exists a legal regime governing the control and accountability of such entities, and their smaller capacity (compared to the armed forces and the CSD) will not result in market distortion. The state can pursue the eventual transfer of these businesses to such entities in phases.

Ultimately, a transfer of ownership of military-run businesses will ensure greater accountability, transparency and equitable distribution of state resources and profits. Such a course would foster participation from the private sector and civilian authority in the market, allowing for new sources of employment, investment and healthy competition to develop throughout the country. In the North and East, it would also prevent economic dependency on the military, while allowing marginalized groups to access sustainable employment opportunities that do not present the same social stigma and pressures.

 

6. ANNEX AND ENDNOTES

(See PDF for Annex and Footnotes)

 

Published in Reports

இலங்கையிலே நிலைமாற்றுக்கால நீதி பற்றிய பேச்சுவார்த்தைகள் யாவுமே இதுவரைக்கும் காணாமற்போன நபர்களுக்கான அலுவலகம், விசேட வழக்குரைஞருடனான நீதிப் பொறிமுறை, உண்மை அறியும் ஆணைக்குழு மற்றும் திருத்தியமைத்தற் பணிகளுக்கான அலுவலகம் போன்றவற்றை நிலைநிறுத்த வேண்டியதான அரசாங்கத்தின் அர்ப்பணிப்புக்கள் பற்றிய நோக்காகவே முழுவதுமாக இருந்துவந்துள்ளது. ஆனால், நிலைமாற்றுக்கால நீதியின் மூலாதாரக் கூறாக உள்ளதான பாதுகாப்புத் துறையினரின் மறுசீரமைப்புப் பற்றி துரதிஷ்டவசமாக இந்தப் பேச்சுவார்த்தைகள் கருத்திற்கொள்ளவில்லை. OISL அறிக்கையின் பரிந்துரைகள் பட்டியலிலே பாதுகாப்புப் படையினரின் மறுசீரமைப்பும் உள்ளடக்கப்பட்டுள்ளது. குறிப்பாக பாதுகாப்புப் படையினர்களை முற்றுமாகப் பரிசீலித்து மனித உரிமை மீறல்களிலே ஈடுபட்டுள்ளதாக நம்புவதற்குப் போதிய ஆதாரங்கள் இருக்கும் நபர்களை அதிலிருந்து அகற்ற வேண்டியதன் முக்கியத்துவம் சுட்டிக்காட்டப்பட்டுள்ளது. இலங்கை அரசாங்கத்தினால் இணை அனுசரனை வழங்கப்பட்ட அந்தத் தீர்மானம், குறிப்பாக, நேர்மையான நிர்வாக முறைமையினூடாக மோசமான குற்றச்செயல்களிலே ஈடுபட்டுள்ள எவரையும் படையிலே சேர்ப்பதற்கோ அல்லது தொடர்ந்து தங்கவைப்பதற்கோ எவ்வித வாய்ப்பும் இல்லை என்பதை உறுதிபடத் தெரிவித்த வெளியுறவு அமைச்சர் மங்கள சமரவீரவின் அர்ப்பணிப்பு, இந்தப் பரிந்துரைப்பினை எதிரொலிப்பதாய் உள்ளது. பாதுகாப்புத் துறையினரின் மீள்சீரமைப்பு பற்றிய இப்படியான அர்ப்பணிப்புக்கள் விடுக்கப்பட்டாலுங்கூட, நிலைமாற்றுக்கால நீதியின் மூலாதாரக் கூறாகிய இது வெகுசாதாரணமாக மறக்கப்பட்டுப்போனமை சஞ்சலத்தைத் தோற்றுவிப்பதாய் உள்ளது. குறிப்பாக, ஏனைய பொறிமுறைகளின் வினைத்திறனானதும் தடையின்றியதுமான தொழிற்பாட்டுக்கு அதன் முக்கியத்துவத்தை மனதிற் கொண்டுள்ள ஒருவருக்கு அது சஞ்சலத்தைத் தோற்றுவிக்கும்.

மனித உரிமைகளின் துஷ்பிரயோகங்களும் மற்றும் சர்வதேசக் குற்றச்செயல்களும் மீளவும் இடம்பெறாதிருப்பதை உறுதிசெய்வதற்கே இப்படியான பாதுகாப்புத்துறை மீள்சீரமைப்பு மேற்கொள்ளப்படுகிறது. மேலும், மனித உரிமைத் துஷ்பிரயோகங்களுக்குப் பொறுப்பானவர்களை பொறுப்புக்கூறச்செய்வதற்கும் இது உதவுகிறது. மேலும், வழக்குத்தாக்கல்கள் அநேகமாக அத்துமீறீயவர்களுள் சிறு தொகையினரிலேயே நோக்கக்குவியம் கொள்ளப்படுவதுண்டு. மீறியவர்களுள் பெரும்பாலானவர்கள் குற்றவியல் நீதிக்கு முன்பதாக என்றுமே கொண்டுவரப்படாமையானது ஒரு “தண்டனையின்மை இடைவெளியை” உருவாக்குகிறது. சர்வதேச மனித உரிமைகள் மற்றும் மனிதநேய விதிமுறைகள் ஆகியவற்றை மீறியுள்ளமை தொடர்பாக இலங்கை, பாதுகாப்புப் படைத்துறையானது ஒரு நீண்ட குற்றப் பட்டியலுக்கு முகங்கொடுத்து வந்துள்ளது. இலங்கையிலே நிலைமாற்றுக்கால நீதியானது வினைத்திறனுடன் மேற்கொள்ளப்பட வேண்டுமேயாயின், மீறுதல்களுக்குப் பொறுப்பாக இருந்துள்ள நிறுவனங்கள் சமாதனம் மற்றும் நல்லுறவுக்கு ஆதரவு வழங்குபவையாக மாறும்படி உருமாற்றப்படவேண்டியது அவசியமானதாகும். துஷ்பிரயோகம் செய்த நிறுவனங்கள் மக்களைப் பாதுகாக்கும் நிறுவனங்களாக ஆகி, செயலிழந்தும் சமநிலைதழம்பியும் உள்ள நிறுவனங்கள் பற்றிய நினைவுகளை அகற்றுமளவுக்கு அவை வினைத்திறனுடனும் நேர்மையுடனும் செயற்பட்டு குடிமக்கள் நம்பிக்கையை மீளப்பெறவேண்டும்.

பாதுகாப்புத் துறையினை மீள்சீர்திருத்துவதற்கான மிக முக்கியமான பகுதி பாதுகாப்புப் படையினர்களை முற்றாகப் பரிசீலிப்பதாகும். சீர்திருத்தச் செயன்முறையின் இதர பகுதிகள் கட்டமைப்பு தொடர்பான அம்சங்களுடன் இடைப்படுவதாய் இருக்க, முற்றாகப் பரிசீலிப்பதானது அந்தத் துறையினுள் உள்ள தனிநபர்களுடன் இடைப்படுவதாக உள்ளது. இது பொதுமக்கள் சேவையிலே பணிசெய்வதற்கு ஒவ்வொரு நபரினதும் பொருத்தப்பாட்டைத் தீர்மானிக்கும் செயன்முறை எனவும், மனித உரிமைகள் துஷ்பிரயோகங்களுக்குத் தனிப்பட்ட ரீதியிலே பொறுப்பான தனிநபர்களை அகற்றுவதை நோக்காகக் கொண்டது எனவும் விபரிக்கப்படுகிறது. கடந்த காலத்துடன் இடைப்படும்படியாக இலங்கைக்குள் TJ பொறிமுறையின் வருகையானது நம்பத்தகுந்த பாதுகாப்புப் படையினரின் பிரசன்னத்தை வேண்டிநிற்கிறது. மனித உரிமைகளின் துஷ்பிரயோகத்துக்கு உள்ளாக்கப்பட்டுப் பாதிக்கப்பட்டவர்கள் குற்றவியல் விசாரணைகளிலும், உண்மை அறியும் ஆணைக்குழு முன்பாகவும், காணாமற்போனோர்களுக்கான அலுவலகத்திலும் சாட்சியம் வழங்கவேண்டிய தேவை ஏற்படும். பாதுகாப்புப் படையினரிலே நம்பிக்கை இல்லாதபட்சத்திலே எந்த ஒரு உண்மை அறியும் அல்லது நீதிச் செயன்முறையும் பயத்தின் மூட்டத்துக்கு உள்ளாகி, கடந்தகாலமானது முடிவுக்குக் கொண்டுவரப்படாத நிலைமை நீடிக்கும். தற்போது அப்படியான நம்பிக்கையும் உறுதியும் நிலவாதபட்சத்திலே ஒரு முழுமையான பரிசீலனைச் செயன்முறை இலங்கைக்கு வேண்டியதாய் உள்ளது.

முழுமையான பரிசீலனைச் செயன்முறையானது, சில நாடுகளிலே மேற்கொள்ளப்படும் முழு அளவிலான களையெடுப்பைப் போலல்லாது, மனித உரிமை மீறல்களுக்குப் பாதுகாப்புத் துறைக்குள் பொறுப்பானவர்களாகக் காணப்படுபவர்களை இனங்காண்பதற்கும் அந்த நபர்களை அகற்றுவதற்குமான முறையானதும் கட்டமைக்கப்பட்டதுமான செயன்முறையை உள்ளடக்கியது. OHCHR இனால் வழங்கப்படும் நடவடிக்கை வழிகாட்டல்கள் முழுமையான பரிசீலனைக்கான கட்டமைப்பை முன்வைத்துள்ளது. முதலாவதாக, சீர்திருத்தம் தேவையான பகுதிகளை இனங்காண்பதற்கு சமூகப் பின்புலத்தின் மதிப்பாய்வுடன் சேர்த்து மதிப்பாயவேண்டிய நிறுவனம் மற்றும் அதன் நபர்களின் மதிப்பாய்வு. அதனைத் தொடர்ந்து, முன்னைய மதிப்பாய்வின் அடிப்படையிலே அப்படியான சீர்திருத்தத்துக்கு வேண்டியதான நியமங்களும் அளவுருகளும் வகுக்கப்படும். இது பணியாளர்களின் எண்ணிக்கை, அவர்களின் கூற்றாக்கம், பணி முன்தேவைகள் மற்றும் தகைமையிலும் நேர்மையிலும் சார்ந்ததாக உள்ளதான தனிநபர் நியமங்கள் போன்றவைகளை உள்ளடக்கும். சர்வதேச மனித உரிமைகள் பற்றிய நியமங்கள் மற்றும் தொழிற்தார்மீக நடத்தை போன்றவற்றையிட்டுத் தனிநபர்கள் கொண்டுள்ள இணக்கத்தினால் அவரவர்களின் நேர்மையானது நேரடியாகத் தீர்ப்பிடப்படும். இந்த நியமங்கள் வரையறுக்கப்பட்டதும், ஒரு சீர்த்திருத்தச் செயன்முறையானது வடிவமைக்கப்படவேண்டும். அப்படியான செயன்முறையின் சுயாதீனத்தையும் சட்டபூர்வத் தன்மையையும் உறுதிசெய்யும்படியாக, அவைகள் பாதுகாப்பு நிறுவனங்கள் சாராத தனியான ஒரு ஆணைக்குழுவினால் நடாத்தப்படல் வேண்டும். அப்படியான ஒரு செயன்முறையானது பணியாளர்களைப் பதிவுசெய்தல், அவர்களை பரிசீலனைக்கு உள்ளாக்குதல், அவர்களின் பின்புலத்தை விசாரித்தல், அவர்களின் தகுதிறனை மதிப்பாய்வு செய்தல் போன்றவைகளை உள்ளடக்கியிருக்கும். யுத்தத்துக்குப் பின்பதான நாடுகளிலே நிலைமாற்றுக்கால நீதியைப் பற்றியதான ஐ.நா. செயலாளர் நாயகத்தின் அறிக்கையானது எப்படியாக விசாரணைக்கு உள்ளாக்கப்படும் தரப்பார்களுக்கு அவர்களையிட்டதான குற்றச்சாட்டுகள் தெரிவிக்கப்பட்டு, நிர்வாக அலகின் முன்பதாக அந்தக் குற்றச்சாட்டுகளையிட்ட அவர்களது மாறுத்தாரங்களைக் கூறும் ஒரு சந்தர்ப்பம் வழங்கப்படவேண்டும் என்பதைச் சுட்டிக்காட்டுகிறது. வழக்கையிட்டதான போதிய அவகாச அறிவிப்பு, வழக்கைச் சவாலிடும் உரிமை அவர்களுக்குப் பாதகமானதாகக் கூறும் தீர்ப்புக்களையிட்டு அவர்கள் நீதிமன்றத்துக்கோ அல்லது வேறு சுயாதீன அலகுக்கோ அப்பீல் செய்யும் உரிமை போன்றதான உரிமைகள் அவர்களுக்கு உண்டு.

இவை அனைத்துமே கட்சித் தொடர்பிணைப்பு, அரசியற் கருத்து அல்லது வேறொரு அரச நிறுவனத்துடனான கூட்டிணைவு போன்றவற்றின் அடிப்படையிலே கொடுபடும் தகுதியின்மை அல்லது நீக்கிவைத்தலின் பரந்துபட்டதான கதறல்களாகும். மறுபுறத்தே, முற்றுமான பரிசீலனையோ மனித உரிமைகளின் மோசமான மீறுதல்களை இழைத்த தனிநபர்களை மாத்திரமே அகற்றுவதை நோக்காகக் கொண்டதாய், சட்டத்தின் எதிர்பார்ப்புகளுக்கு அமைவாக நடந்து கொண்டு பொருத்தமான வல்லமைப்புகளின் கௌரவத்தை நிலைநாட்டும் நேர்மைத்தனம்   கொண்ட, சகல குடிமக்களினதும் உரிமைகளைப் பாதுகாத்துத் தமது கடைமையை நன்கு செய்யக்கூடிய தகைமை கொண்ட தனிநபர்களைப் பாதுகாப்புத் துறையிலே விட்டுவைக்கும்.

உலகெங்கிலும் பயன்படுத்தப்பட்ட முற்றுமான பரிசீலிப்புகள் பல்வேறு விதப்பட்ட சவால்களுக்கு முகங்கொடுத்து வந்துள்ளன. கொஸோவோ நாட்டிலே, கொஸோவோ உளவுத்துறை (KIA) யின்கீழ் பாதுகாப்பு அனுமதித் திணைக்களத்தால் முற்றுமான பரிசீலிப்பானது கையாளப்படுகிறது. இது சுயாதீனத்தை உறுதிசெய்யும்படியாக மேற்கொள்ளப்பட்டது. ஆயினும், இது   தொடர்பிலே உள்ளவைகளுடன்கூட, இந்தச் செயன்முறைகளை பொருட்டாகக் கருதாத நாடாளுமன்ற உறுப்பினர்கள், KIA இன் பொறுப்பில் உள்ள தொகுக்கப்பட்ட தகவல்களைப் பெற்றடைவதற்கு பாதுகாப்பு அனுமதி பெறவேண்டிய நிர்ப்பந்தமானது இதனை விவாதத்துக்குரிய விடயமாக்கிவிட்டுள்ளது. இவ்வண்ணமாக KIA இன் சிவில் மற்றும் ஜனநாயக மேற்பார்வை சமரசம் பண்ணப்படுகிறது. கொஸோவோவில் உள்ள அப்பீல் முறைமைகளும் சவாலானவைகளாக உள்ளன. அப்பீல்கள் யாவுமே KIA இற்குள் அமைந்துள்ளதும் சுயாதீனமானதெனக் கருதப்பட்டதுமான பிறிதொரு அலகுக்கு வழங்கப்பட வேண்டியதாக, அல்லது இக்கட்டான நிலைமைகளிலே நீதித்துறைக்கு வழங்கப்பட வேண்டியதாய் இருந்தது. அப்பீல்கள் KIA இடம் விடுக்கப்படவில்லை. அத்துடன், நீதித்துறை இப்படியாக வழக்குகளுடன் இடைப்படுவதிலே அனுபவம் குன்றியதாக இருந்தமையால், இறுதியிலே நாடாளுமன்றக் கமிட்டியன்று, அப்படியான அப்பீல்களுடன் இடைப்படுவதற்கு சட்டபூர்வ அனுமதி பெற்றிராத நிலைமையிலும், அவைகளுடன் இடைப்படத் தீர்மானித்தது. எகிப்திலே இந்த முறைமையானது நியமங்களை வகுப்பதிலே ஒரு சமநிலையைக் கண்டுகொள்வதற்காகத் தத்தளித்தது. அவர்கள் பரந்துபட்ட செயற்பாடுகளிலே ஈடுபட்டு, முன்னைய ஜனாதிபதியின் அரசியல் வாழ்விலே பங்கேற்பதைத் தடை செய்வதனைக் கருத்திற் கொண்டனர். அதிலிருந்து அவர்கள் மிகவும் விடாப்பிடியானவர்களாய் வளர்ந்தனர். குற்றச்செயல் செய்தமைக்கான சான்று இல்லாமலேயே தடைகளை அமுல்படுத்தும் அதேவேளையிலே ஆளும் கட்சியின் சிறந்தவர்களால் வெளியே இடம்பெறும் துஷ்பிரயோகங்களையும் உதாசீனம் செய்யும். கென்யாவிலே தொடர்ந்து இடம்பெற்றுவரும் முற்றுமான பரிசீலனை நிகழ்ச்சித் திட்டமானது அரசியல் விருப்பம் குறைவாக இருப்பதன் காரணமாக மிகவும் மந்தகதியிலே செயற்பட்டு வந்ததுடன், அது பாதுகாப்புத் துறையினர்களுக்குள் ஒருவித ஏக்கத்தை எழுப்பியது. மேலும், அரசியல் ஈடுபாடுகள் காரணமாக அதற்குள் வெளிப்படைத்தன்மையும் சுயாதீனமும் குறைவானதாகவே இடம்பெற்றது. உண்மையிலேயே முழுவதுமான பரிசீலனையானது திறன் மற்றும் பொருத்தப்பாடு ஆகிய அடித்தளமிட்டதாயும், தொழிற்தர்மம், செய்து எண்பித்தல், கட்டுப்பாட்டொழுங்கு, மனித உரிமைகள் பதிவுகளும் தராதரங்களும் ஆகியவற்றிலே மேற்கொள்ளப்பட வேண்டியதெனக் கருதப்பட்டது. இதற்குப் பதிலாக அதன் குவியநோக்கமானது செல்வச்செழிப்பு மற்றும் தனிநபர் நிதிவளம் போன்ற விடயங்களுக்கு நகர்ந்ததுடன், மெய்யான சேவைப் பதிவுகளுக்கு சொற்ப கரிசினையே வழங்கப்பட்டது. அதிகாரத்தில் உள்ளவர்களுக்கு எதிராக சுரண்டல் பற்றிய குற்றச்சாட்டுகள் நிலவிவந்துள்ளன. இப்படியான எந்தச் சவால்களுக்கும் இலங்கை தடையாக இராது. இதற்கு மேலதிகமாக, பாதுகாப்புத் துறையினரின் மீள்சிரமைப்பு பற்றிய கோஷத்தையிட்ட பொதுமக்கள் உணர்வலைகள் மிகவும் எல்லைப்பட்டதாகவே உள்ளன.

மீள இடம்பெறாதிருப்பதை உறுதிசெய்வதற்குப் பாதுகாப்புத் துறையின் மீள்சீரமைப்புக்கு முழுமையான பரிசீலனையானது அவசியமானதோர் கூறு என்பதையிட்டு இருவேறு கருத்துக்கள் கிடையாது. இலங்கை அரசாங்கமானது அப்படியான ஒரு மீள்சீரமைப்பினை மேற்கொள்வதற்கும், அதனை உறுதிப்படுத்துவதற்கும் உறதிமொழியை வழங்கியுள்ளது என்பது உண்மை. வினைத்திறனில்லாத முழுமையான பரிசீலனையானது, தம்மைத் துஷ்பிரயோகித்து, தமது உரிமைகளை மீறியோர் பற்றிய பயம், பாதிக்கப்பட்டோர்களிலே தொடர்ந்து நிலைத்திருக்கச் செய்யும். அது கவனத்தில் கொள்ளப்படாவிட்டால், அந்த அச்சமானது உண்மைக்கும் நீதிக்குமான எந்த ஒரு செயன்முறைகளையும் தடம்புரளச் செய்திடக்கூடும்.

Published in Tamil

Last week, SACLS released a report titled “From Words to Action: A Road Map for Implementing Sri Lanka’s Transitional Justice Commitments”. This report unpacks the TJ package contained in UNHRC Resolution 30/1, classifies the commitments made by the government of Sri Lanka through the co-sponsoring of Resolution 30/1, and breaks them down into tangible, operational, and objectively verifiable steps.

After investigative missions—such as the OISL—report to the UNHRC, the latter often mandates mechanisms to monitor the implementation of the recommendations issued by investigative bodies, or of the recommendations contained in UNHRC follow-up resolutions. This was done for example with respect to the situation in Darfur and as a follow-up to the Report of the Commission of Inquiry into Operation Cast Lead carried out by the Israeli military in the Gaza strip in December 2008-January 2009. As an alternative, or in addition, the UNHRC often mandates OHCHR to monitor and publicly report on progress. It is in this context that Resolution 30/1 tasks OHCHR with “assessing progress on the implementation of its recommendations and other relevant processes related to reconciliation, accountability and human rights” in Sri Lanka.

Though not always undertaken systematically, mechanisms tasked with monitoring progress in the realm of Transitional Justice (TJ) sometimes devise roadmaps of the kind prepared by SACLS. Such roadmaps serve as a tool for constructive engagement with the government concerned. It is therefore unfortunate that no roadmap of the kind issued by the experts group on Darfur was issued and released publicly by OHCHR. Unlike the government of Sudan, the government of Sri Lanka committed itself (though its decision to co-sponsor Resolution 30/1) to implement the recommendations contained in this resolution in full. Therefore, a roadmap proposed by OHCHR would have stood a reasonable chance of being agreed upon by Sri Lanka, at least partially. This would also have reassured the public as to the level of OHCHR’s engagement in the process.

While OHCHR is due to report orally to the UNHCR in June this year, a comprehensive assessment of progress will only take place in March 2017, one and half years after the government committed itself to the TJ package contained in Resolution 30/1, and more than two years after the change of government. Such a time frame is plainly sufficient to devise and start implementing a TJ policy. Therefore, if the government stands by its commitments, OHCHR will be in a position to report on significant steps taken by the government. However, if the process stalls in the interim, a course correction may not be possible at that point in time. As time passes, fatigue with respect to TJ is likely to set in. In addition, at home, the government is expected to expend its limited political capital in constitution making and other reform agendas. As Foreign Minister Mangala Samaraweera himself wisely notes, the most controversial reforms should be implemented as quickly as possible after a new government accedes to power in order to capitalize on fresh momentum. For this reason, a systematic monitoring of progress must not be delayed.

Within each of the four TJ pillars (truth-seeking, prosecutions, reparations and guarantees of non-recurrence), there is room for policy choices that are best decided upon after consultations take place. However, a number of commitments made by the government in October may be operationalized in the interim. Indeed, while UNHCHR recommendations are sometimes purposely obscure, due to the political negotiations that invariably take place in interstate forums such as the UNHRC, they, more often than not, refer to preexisting and well-established States’ obligations under international law. The breakdown of the commitments made in Resolution 30/1 into intermediary steps, which are required as a matter of logical sequencing or as a matter of international law, shows that many steps may be implemented through administrative action and are not particularly politically costly. These include measures in areas that require immediate progress such as the release of lands and the repeal of the PTA. In addition, as the SACLS report sets out, these also include early administrative steps with respect to more complex and politically sensitive issues such as the institutional design of a special court.

The breakdown of the recommendations into an actionable roadmap also helps narrow down and identify steps that are expected to meet with significant challenges as well as institutions and individuals that may derail the process. If major political roadblocks hinder the implementation of some TJ measures, it may be useful to pursue a sequential approach. The concept of sequencing in Transitional Justice was introduced as an alternative to the false dichotomy between peace and justice. As explained by the UN Secretary-General  “justice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives. Advancing all three in fragile post-conflict settings requires strategic planning, careful integration and sensible sequencing of activities”. Sequencing is essentially a political tool to overcome obstacles to justice in an unstable post-conflict situation. However, if politically feasible, prosecutions ought not to be delayed unnecessarily. Unwarranted delay may impede rather than catalyze TJ. Sequencing Truth Commissions to precede trials may have worked in countries where trials were legally and politically impossible at first. However, this does not mean that TRCs must always precede trials. In fact, implementing trials and TRCs in tandem could help both mechanisms complement each other, as in the case of Sierra Leone and East Timor.

Many in Sri Lanka, and some amongst the diplomatic community are now under the impression that the commitments made by the government of Sri Lanka were too far reaching and too ambitious to be successfully implemented within a limited time frame. The program of reforms to which the government committed itself and its end goal are indeed very ambitious. As Minister Samaraweera underscores, the commitments made by the government in October last year could, if implemented, help Sri Lanka “come to terms with its past if we are to forge ahead and secure the future that Sri Lankan people truly deserve”. However, the breakdown of the commitments into an actionable roadmap shows that many steps including some pertaining to politically sensitive areas such as the pursuit of criminal justice for international crimes may be implemented within a short time frame. It is therefore important to hold the government accountable to each of these intermediary steps that will pave the way for the successful implementation of Resolution 30/1.

Published in English

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

The conversation on Transitional Justice in Sri Lanka has hitherto focused almost exclusively on the government’s stated commitments to establish an Office of Missing Persons, a judicial mechanism with a special prosecutor, a Truth Commission and a Office for Reparations. Unfortunately, this conversation does not address the question of security sector reform, which is a central component of Transitional Justice. The OISL Report’s list of recommendations included security sector reform and in particular highlighted the importance of vetting security forces personnel to remove those in respect of whom there are reasonable grounds to believe they were involved in human rights violations. The Resolution co-sponsored by the Sri Lankan government echoed this recommendation, and in particular, Foreign Minister Samaraweera’s commitment to ensure that no scope exists for the retention in or recruitment into the security forces of anyone credibly implicated through a fair administrative process in serious crimes. Despite these commitments on security sector reform, it is troubling that this central component of Transitional Justice should be so casually forgotten, particularly when one bears in mind its importance to the smooth and effective functioning of the other mechanisms.

Security sector reform is conducted to ensure non recurrence of human rights abuses and international crimes. It also helps in holding perpetrators of human rights abuses accountable. Further, prosecutions often focus on a very small number of perpetrators, creating an ‘impunity gap’ where the vast majority of perpetrators are never brought to criminal justice. The Sri Lankan security sector has faced a long list of allegations concerning violations of international human rights and humanitarian law. If Transitional Justice is to be effectively carried out in Sri Lanka, institutions that were responsible for violations need to be transformed into ones that support the transition to peace and reconciliation. Abusive institutions must become ones that protect the people, working efficiently and fairly to dispel the memory of dysfunctional and inequitable institutions and to regain civic trust.

A crucial part of reforming the security sector is the vetting of security personnel. While other areas of the reform process deal with more structural issues, vetting deals with individuals within the sector. It has been described as a process to determine each person’s suitability for public employment with the intention of removing individuals personally responsible for human rights abuses. The advent of TJ mechanisms in Sri Lanka to deal with the past necessitates the presence of security personnel who can be trusted. Victims of human rights abuses will be needed to testify before criminal proceedings, a truth commission and an Office of Missing Persons. Without trust in security personnel, any truth or justice proceedings will be overshadowed by fear, and the past will not be put to rest. With the non-existence of such trust and assurance at present, Sri Lanka needs a vetting process.

The process of vetting, unlike the wholesale purges undertaken by some countries, entails a formal, structured process for the identification and the removal of individuals within the security sector found to be responsible for human rights violations. The operational guidelines given by the OHCHR lays out a structured process for vetting.  First, the institution and its personnel need to be assessed along with the social context to identify the areas needing reform. Following this, organizational parameters and standards for such reform should be set, based on the prior assessment. This would cover areas such as number of staff, composition of personnel, job requirements and individual standards based on capacity and integrity. Integrity is objectively judged by the individual’s adherence to international human rights standards and professional conduct. Once these standards are defined, a reform process needs to be designed. In order to ensure the independence and legitimacy of such a process, it should be conducted by a separate commission independent of security institutions. A typical process involves registering employees, screening them, assessing their competence and investigating their background. The UN Secretary General’s Report on transitional justice in post conflict countries points out how parties under investigation are notified of allegations against them and are given an opportunity to respond to these allegations before the administrative body. They have the right to reasonable notice of the case, the right to contest the case and the right to appeal an adverse decision to the court or another independent body.

All this is a far cry from wide scale dismissal or disqualification meted out on the basis of party affiliation, political opinion or association with another state institution. On the contrary, vetting aims to remove only those individuals who have committed grave violations of human rights, leaving  the security sector with individuals who have the capacity to do their duty well in protecting the rights of all citizens and who have the integrity to uphold the honour of the relevant forces by acting in accordance with the expectations of the law.

Vetting processes around the world have been faced with varied challenges. In Kosovo, vetting was handled by the Department for Security Clearance under the Kosovo Intelligence Agency (KIA). This was done to ensure independence. It became contentious however, when among other things, Members of Parliament exercising oversight over the process were forced to obtain security clearance to access classified information in the possession of KIA. Thus civil and democratic oversight of the KIA were compromised. The Appeals process in Kosovo also presented a challenge. Appeals needed to be presented to another body within the KIA which was supposed to be independent or, as a last resort, to the judiciary. Appeals were not made to the KIA, and since the judiciary lacked the expertise to deal with these cases, eventually a parliamentary committee decided to deal with them despite not being legally permitted to deal with such appeals. The process in Egypt struggled to find a balance in setting standards. They drew overbroad strokes and considered banning participation in the former President’s political life. From there, they grew more draconian, imposing sanctions without evidence of wrongdoing and ignoring criminality and abuse carried out outside the ruling party elite. Kenya’s on-going vetting programme has been very slow due to lack of political will and has raised anxiety within the security sector. It also lacks transparency and independence from political interference. While the vetting is supposed to be undertaken on the grounds of competence and suitability, focussing on professionalism, performance, discipline, human rights record and qualifications; the focus has instead shifted to issues of wealth and finances of the personnel with little attention given to actual service records.  There have also been allegations of corruption against those in Authority. Sri Lanka is not immune to any of these challenges. In addition to these, the public’s sensitivity to the notion of security sector reform is very limited.

That vetting is a necessary part of security sector reform in ensuring non recurrence cannot be disputed. That the Sri Lankan government has pledged itself to undertake and ensure such reform is a fact. Sans effective vetting processes, victims will remain in fear of those who abused them and violated their rights. If left unaddressed, this fear could derail any truth or justice process.

Published in English

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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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

Published in Reports

‘மிருசுவில் படுகொலைகள்’ என அறியப்பட்ட வழக்கில் மேல் நீதிமன்ற ட்ரயல் அற் பாரின் அண்மைய குற்றத் தீர்ப்பும் மற்றும் சார்ஜன்ட் சுனில் ரட்னாயக்கவிற்கு விதிக்கப்பட்ட மரண தண்டனையும் தீவிரத் தேசியவாத சிங்கள பௌத்த கும்பல்களின் முற்றிலும் எதிர்பார்க்கப்பட்ட ஆவேசமான சீற்றத்தை எதிர்கொண்டது. ஆனால், அரச இயந்திரத்தினுள் இருந்து ஒரு சுவாரசியமான பதிலிறுத்தலே இதற்கு வெளிப்பட்டது. இந்தத் தீர்ப்பு, மனித உரிமை மீறல்களைக் கையாள்வதற்கு இலங்கை சட்ட முறைமையின் செயற்றிறனை வெளிப்படுத்துவதாக இராணுவப் பேச்சாளர் ஒருவர் கூறினார் – இந்தக் கருத்து வழக்கு நடவடிக்கையைக் கையாண்ட சட்ட மா அதிபர் திணைக்களத்தின் உத்தியோகத்தர்கள் உட்பட வேறு பலரினாலும் கூட பிரதிபலிக்கப்பட்டது.

பதவியிலுள்ள அரசு பொறுப்புக் கூறலுக்கு ஒரு ‘முற்றிலும் உள்ளூர் மாதிரியைக்’ கவனத்தில் கொள்வதாக வெளிவிவகார அமைச்சிலிருந்து வெளிப்படும் மிகச் சமீபத்தைய அறிக்கைகள் தெரிவிக்கின்றன. உண்மையாயின், இது – ஒரு முற்றிலும் உள்ளூர் மாதிரி ஊடாக இடைக்கால நீதி மற்றும் பொறுப்புக் கூறலுக்கான சாத்தியங்கள் குறித்து அதிகரித்தளவிவான ஐயங்களை வளர்த்துக் கொண்ட மனித உரிமைச் செயற்பாட்டாளர்கள் மற்றும் இலங்கையிலுள்ள பாதிக்கப்பட்டவர்களுடன், இலங்கை அரசை ஒரு முரண்பட்ட நிலையிலிடும். செப்டெம்பரில், ஜெனீவாவில் மனித உரிமைகள் பேரவையின் அமர்வுகள் ஆரம்பிப்பதற்கு சில தினங்கள் முன், நாடாளுமன்றம் கூடுவதற்கு எதிர்பார்க்கப்பட்டிருக்கின்ற நிலையில், செப்டெம்பரின் சில வாரங்களில் நாடாளுமன்றத்தில் குறைந்தது ஒரு சில சட்டபூர்வமான வரைபுகளையாவது அரசு சமர்ப்பிக்கும் என ஊகிப்பதற்கான ஒரு அரங்கு அங்கு தயார் செய்யப்பட்டுள்ளது.

ஐக்கிய நாடுகள் மார்ச் மற்றும் செப்டெம்பர் மாதங்களுக்கு இடையிலான காலப்பகுதியினுள் அரசுடன் ஈடுபடுவதற்கு எதிர்பார்க்கப்பட்ட வேளையில், செப்டெம்பரில் அநேகம் அறிவிக்கப்படக்கூடிய பொறிமுறைகளை உருவாக்குவதற்கு ஏதேனும் அர்த்தமுள்ள வகையில் இலங்கை அரசு அதன் சொந்த நிபுணர்கள், சிவில் சமூகம் அல்லது பாதிக்கப்பட்டவர்களின் பிரதிநிதிகளை ஈடுபடுத்துவதற்கு நிர்ப்பந்திப்பதில் இதுவரை தவறியுள்ளது. குறிப்பாக, இலங்கைச் சூழ்நிலையில் சர்வதேச நியமங்களைத் திருப்தி செய்யும் ஒரு மாதிரியின் அமைப்பை அல்லது மாதிரிகளை விளக்குவதற்கு அது தவறியுள்ளது. விசேட அறிக்கையாளர் பப்லோ டி கிறிப் அவர்களின் அவதானித்தல்கள் வரவேற்கப்பட்டு சமனிலைப்படுத்தப்பட்ட வேளையில், அவை மிகவும் ஆரம்ப நிலையிலானவையாக இருந்ததுடன், அதன்பின் அதிகளவு விடயங்கள் நடந்தேறியுள்ளன. மார்ச்சில் ஆணையாளர் செயிட் இலங்கைக்கு ஒரு ஒத்திவைப்பை வழங்கிய பின்னும் கூட ஐ.நாவின் ஒரு பொருத்தமான மூலோபாயமின்மை ஐ.நாவின் வதிவிட ஒருங்கிணைப்பாளர் சபிநே நன்டி அவர்களின் அண்மைய கருத்துக்களிலிருந்து வெளிப்பட்டது. உள்நாட்டு – சர்வதேச கலப்பு முறை சார்ந்து ஆணையாளர் செயிட் அவர்களின் அலுவலகத்தால் சாத்தியமான பரிந்துரைத்தலை முன்கூட்டியே தடுத்து, ஒரு திட்டவட்டமான ‘உள்ளூர்’ செயன்முறைக்காக ஐ.நாவின் நிதி உதவியை அவர் வேண்டியதாகத் தெரிகிறது.

இலங்கையில் பொறுப்புக்கூறலின் ஏதேனும் செயன்முறைகளில் நம்பகத்தன்மையை உறுதிப்படுத்துவதற்கு மனித உரிமை மீறல்களின் வழக்குத் தொடர்தல்கள் தொடர்பாக தீவிரமான கட்டமைப்புச் சீர்திருத்தங்கள் ஏன் முதலில் தேவைப்படும் என்பதை வெளிக்காட்டுவதற்கு மிருசுவில் வழக்கிலான ஒரு சில அவதானித்தல்களை இந்தக் கட்டுரையில் நான் தருகிறேன்.

முதலாவது, மிருசுவில் படுகொலை தொடர்பான வழக்கு, இலங்கையினுள் அரச செயற்பாட்டாளர்களால் புரியப்பட்ட பெரும் எண்ணிக்கையிலான மனிதப் படுகொலைகளுள், குற்றத்துக்குப் பொறுப்பானவர்கள் நீதியின் முன் கொண்டுவரப்பட்ட ஒரு சில வழக்குகளுள் ஒன்றாகக் காணப்படுகின்றது. மிகப் பெரும்பாலான வழக்குகளில் சந்தேகத்திற்குரியவர்கள் ஒரு நீதிமன்றத்தின் முன் ஒருபோதும் கொண்டு வரப்பட்டதே இல்லை அல்லது வழக்குகள் தொடுக்கப்பட்டவிடத்து அவை நிலுவையில் உள்ளன அல்லது குற்றம்சாட்டப்பட்டவர்கள் விடுதலை செய்யப்பட்டனர். எவ்வாறாயினும், 2000ஆம் ஆண்டின் முற்பகுதி, அப்போதைய சந்திரிக்கா குமாரதுங்க அரசால் ஒரு தொகையான வழக்கு நடவடிக்கைகள் தொடரப்பட்டன. இவை பிந்துனுவெவ வழக்கு மற்றும் கிருஷாந்தி குமாரசுவாமி வழக்கு என்பவற்றை உள்ளடக்குகிறது. ஆனால், மின்னோஸ்டாப் பல்கலைக் கழகத்தின் மொரியா லின்ச் என்பவரின் படி, இலங்கை தொடர்பான அவரது சம்பவக் கற்கையில், இந்த குமாரதுங்க காலத்திலான அதிகரித்த வழக்குத் தொடர்தல் நடவடிக்கைகள் குறுகிய காலமே நிலைத்தது, இந்தக் காலத்தின் போது முன்னெடுக்கப்பட்ட பல வழக்கு விசாரணைகளில் குற்றஞ் சாட்டப்பட்டவர்கள் விடுதலை செய்யப்பட்டனர் அல்லது வழக்குகள் இன்னமும் நிலுவையில் உள்ளது என அவர் சுட்டிக் காட்டுகிறார்.

இரண்டாவது, இந்த வழக்கு பற்றி கவனத்தை ஈர்க்கும் விடயம் என்னவென்றால் ட்ரயல் அற் பார் நீதிமன்றம் வழக்கு நடவடிக்கைகளை முடிப்பதற்கு பன்னிரெண்டு வருடங்களை எடுத்தமையாகும். இதனொரு மேன்முறையீடு முன்னெடுக்கப்படின், அச்செயன்முறை எந்தளவு நீண்ட காலம் எடுக்கும் என்பது நிச்சயமற்றதாக உள்ளது. ஒரு குறைந்த காலத்துக்கான ஊகமே மேலும் மூன்றிலிருந்து ஐந்து வருடங்கள் வரை எடுக்கும் என்பதாக உள்ளது. மிருசுவில் வழக்குத் தொடர்பான குற்றப் பகிர்வுகள் குற்ற விசாரணையைத் தொடர்ந்து இரண்டு வருடங்களிலேயே வந்தது, என்பதுடன் விசாரணை விளக்கம் 2003ஆம் ஆண்டு செப்டெம்பரில் ஆரம்பிக்கப்பட்டது. அதன் பின்னர் என்ன நடைபெற்றது என்பது இலங்கையின் ஒரு சீர்திருத்தம் அடையாத சட்ட முறைமையிடம் பொறுப்புக்கூறலை விடுவது, குறிப்பாக ஏன் ஒரு மோசமான யோசனை என்பதைச் சரியாக எடுத்துக் காட்டியது. வழக்கை விசாரிக்கும் அமர்வுக் குழுவின் கட்டமைப்புக்கான பல்வகை மாற்றங்களோடு வழக்கு அலைபட்டது. வழமையானதொரு மேல் நீதிமன்ற விசாரணையை விட துரிதமான ஒரு விசாரணை வடிவம் எனக் கருதப்பட வேண்டிய – ஒரு ட்ரயல் அற் பார் – வழக்கை முடிப்பதற்கு ஒரு தசாப்தத்திற்கும் மேலாக எடுத்துக் கொண்டமை நீதி முறைமையின் முற்றிலுமான அசாதாரண செயற்பாடு என்பதின் ஒரு துரதிர்ஷ்டவசமான சுட்டிக்காட்டுதலாக உள்ளது. இதனாலேயே கொடூரக் குற்றங்களைக் கையாள்வதற்கு ஒரு விசேட நீதிமன்றம் அத்தியாவசியமாகின்றது. அது இன்றி, மனித உரிமைகள் துஷ்பிரயோகங்களைக் கையாளும் விசாரணைகளே, அவற்றின் தரங்கள், பாதிக்கப்பட்டவர்களின் நம்பிக்கை, வெளிப்படைத் தன்மை மற்றும் செயன்முறையின் தொடர்ச்சி என்பவற்றின் மீது பாதிப்பை ஏற்படுத்தும் விளைவுகளுடன் பல தசாப்தங்களை எடுக்கும்.

மூன்றாவது, இந்த வழக்கானது கொடூரக் குற்றங்களுக்கான அரச உத்தியோகத்தர்களின் மட்டுப்படுத்தப்பட்ட எண்ணிக்கையிலான சட்ட நடவடிக்கைகள் பலவற்றுக்குப் பொதுவான ஒரு மாதிரியை தவறாது பின்பற்றியது. அதாவது, புலன்விசாரணைகள் உள்நாட்டு அல்லது சர்வதேச அழுத்தம் அல்லது அவை இரண்டின் காரணமாக முன்னெடுக்கப்பட்டன. சந்தேக நபர்கள் பலர் இனங்காணப்பட்டனர். ஆனால், ஒரு சில கீழ் நிலை படைவீரர்களே குற்றஞ் சாட்டப்பட்ட வேளையில் மற்றையவர்கள் குற்றஞ் சாட்டப்படவில்லை. விசாரணையின் போது விடுவிக்கப்பட்டனர் அல்லது விடுதலை செய்யப்பட்டனர். எம்பிலிப்பிட்டிய, பிந்துனுவௌ, செம்மணி மற்றும் இப்பொழுது மிருசுவில் வழக்குகள் இந்த இடர்ப்பாடான மாதிரியையே எடுத்துக் காட்டின. மிருசுவில் வழக்கில், இரண்டு சிறுவர்கள் உட்பட எட்டுப் பொதுமக்கள் கண்கள் கட்டப்பட்டு அவர்களின் தொண்டைகள் கத்தியால் அறுக்கப்பட்டுக் கொலை செய்யப்பட்டனர். அவர்களது உடலங்கள் ஒரு கழிவறைக் குழியில் போடப்பட்டன. தனிக் குற்றவாளியாகக் காணப்பட்ட சார்ஜன்ட் ரட்னாயக்க பதினேழு குற்றச்சாட்டுக்களில் குற்றங் காணப்பட்டார். அதிலொன்று, கொலை செய்யும் பொதுவான நோக்கத்தோடு சட்டவிரோதமாகக் கூடியமையாகும். ஒன்று சேர்ந்து பல ஆட்களால் ஒரு தொடரான குற்றங்கள் புரியப்பட்டமைக்கு தெளிவான சாட்சியங்கள் இருந்தபோதிலும், குற்றம் நடைபெற்று பதினைந்து வருடங்களுக்கு மேலாகியும் ஒரேயொரு நபர் மட்டுமே குற்றவாளியாக நிற்கிறார். இந்த வழக்குகள் புலன்விசாரணை மற்றும் மனித உரிமைகள் வழக்கு நடவடிக்கைகள் என்பவற்றிலான கட்டமைப்புக் குறைபாடுகளைச் சுட்டிக் காட்டுகின்றதுடன், பொலிஸ் புலன்விசாரணை மற்றும் சட்ட மா அதிபர் முன்னெடுக்கும் வழக்கு நடவடிக்கைகளில் பரவலான அவநம்பிக்கையையே ஏற்படுத்தியுள்ளன. 1994 மற்றும் 1998 காணாமற் போனவர்களின் புலன்விசாரணை ஆணைக்குழு மனித உரிமைகள் துஷ்பிரயோகங்கள் தொடர்பான வழக்கு நடவடிக்கைகளைக் கையாள்வதற்கு ஒரு சுயாதீனமான வழக்குத் தொடுநரை அரசு அதிகாரமளித்தல் வேண்டுமென ஏற்கனவே பரிந்துரையை மேற்கொண்டுள்ளது. புலன்விசாரணை செய்வதற்கு ஏற்பாடளிக்கப்பட்ட சுயாதீனமான ஒரு வழக்குத் தொடுநரின்றி, கடுமையான மனித உரிமை மீறல்களின் வழக்குகளைத் தயார் செய்து வழக்கு நடவடிக்கை மேற்கொள்ளும், ஒரு உள்நாட்டுச் செயன்முறை குற்றவிலக்களிப்பு மற்றும் திரும்பத் திரும்ப நடைபெறும் தவறிய வழக்கு நடவடிக்கைகளின் ஒரு கலாச்சாரத்தை மட்டுமே நிலையானதாக்கும்.

நாலாவதாக, இலங்கையின் குற்றவியல் சட்டங்கள் பெருமளவிலான கொலைகளின் முக்கியத்துவத்தைக் கவனத்தில் கொள்வதற்கும் மற்றும் குற்றங்களுக்கு கூடுதலாகப் பொறுப்பு வகிப்பவர்களுக்கு கட்டளையிடும் மற்றும் மேற்பார்வை பொறுப்பு மீது கவனம் செலுத்துவதற்கும் வருத்தமளிக்கும் வகையில் போதுமானவையாக இல்லை. யுத்தக் குற்றங்கள் மற்றும் மனிதநேயத்திற்கு எதிரான குற்றங்கள் போன்ற சர்வதேசக் குற்றங்களைக் குற்றவியல்படுத்துவதற்கு சட்டங்கள் திருத்தப்பட்டாலன்றியும் – மற்றும் அதனுடன் கட்டளைப் பொறுப்பு மற்றும் கூட்டுக் குற்ற முயற்சி பொறுப்பு மாதிரிகளை அறிமுகம் செய்தாலன்றியும் – குற்றங்களில் யார் கட்டளையிட்டது, அனுசரனையளித்தது அல்லது உடந்தையாயிருந்து தீர்மானம் மேற்கொண்டவர்கள் என்பதை சுயாதீன வழக்குத் தொடுநர்கள் மற்றும் புலன்விசாரணையாளர்கள் கூட கவனிக்காது விட்டுவிடுவது உயர்ந்தளவிலாக இருக்கும்.

இறுதியாக, சுயாதீனத் தன்மை, நடுநிலைத் தன்மை மற்றும் தகுதிவாய்ந்த நிலை என்பவற்றின் ஒரு அளவை உறுதிப்படுத்துவதற்கு வெறுமனே தொழில்நுட்ப ஆலோசனை மற்றும் உதவி என்பனவின்றி, சர்வதேசப் பங்குபற்றுதல் அவசியமாகும். சிக்கலான சர்வதேசக் குற்றங்களின் புலன்விசாரணை மற்றும் வழக்கு நடவடிக்கை என்பன நிபுணர்களின் நிபுணத்துவம் மற்றும் முழுமையான பக்கச்சார்பின்மை என்பவற்றைத் தேவைப்படுத்துகிறது. அதன் சொந்த நியாயாதிக்கத்தினுள் இந்தக் குற்றங்களுக்கு வழக்கு நடவடிக்கை எடுப்பதற்கு இலங்கை உரித்துடையதாக உள்ள வேளையில், தகுதிவாயந்த சர்வதேச நிபுணர்களின் உள்வாங்குதல் ஊடாக அந்த நியாயாதிக்கம் ஏன் அப்பியாசிக்கப்பட முடியாதென்பதற்கு ஒரு காரணம் எதுவுமில்லை.

ஆகையால், இலங்கையின் குற்றவியல் நீதி எந்தளவிற்கு இயலுமாதென்பதற்கு மிருசுவில் வழக்கு சிறந்த முறையில் எடுத்துக் காட்டுகிறது. வழக்கில் சம்பந்தப்பட்ட அரச உத்தியோகத்தர்களின் சுய பாராட்டு வெளிப்படுத்தல்களிலிருந்து அது தெளிவாகின்றது. சுயாதீனம் மற்றும் சர்வதேச நியமங்களுக்கான கடைப்பிடித்தல் என்பவற்றை உறுதிப்படுத்துவதற்கு முழுமையான சீர்த்திருத்தங்கள் நீதி முறைமைக்குத் தேவைப்படுகின்றது. குற்றவிலக்களிப்பை முடிவுறுத்துவதற்கு ஓர் எதிர்கால அரசின் பற்றுறுதி, சர்வதேச அழுத்தம் காரணமாக பலிபீடத்தில் ஒரு சில கீழ் நிலைப் படைவீரர்கள் மற்றும் அரசியல் எதிரிகளைப் பலியிடுவதற்கு எந்தளவிற்கு அது முனைப்பாக உள்ளது என்பதினால் இல்லாது, இலங்கையின் இருண்ட கடந்த காலத்துடன் கையாள்வதற்கு அவசியமான நிறுவனங்கள் மற்றும் ஏற்பாடுகளை உருவாக்குவதற்கு அவசியமான நிறுவனரீதியான மற்றும் சட்டக் கட்டமைப்புகளை உருவாக்குவதற்கு அது எந்தளவிற்கு விருப்பாக உள்ளது என்பதினால் அளவிடப்படும்.

THE MIRUSUVIL CASE: WHY SEARCHING REFORM IS URGENT AND NECESSARY என்ற தலைப்பில் ‘கிரவுண்ட்விவ்ஸ்’ தளத்தில் வௌிவந்த கட்டுரையின் தமிழாக்கம் இங்கு தரப்பட்டுள்ளது.

Published in Tamil

உலகின் பல பாகங்களிலே ஊடக சுதந்திர தினமானது தமது ஊடகப்பணியை ஆற்றும்போது கொலையுண்ட ஊடகவியலாளர்களை நினைவுகூருவதால் கொண்டாடப்படுகிறது. யாழ்ப்பாணத்தில் அப்படிப் பலியானவர்களின் தொகையானது எனது பேச்சிலோ இப்படியான ஒரு நிகழ்விலோ குறிப்பிட்டுச் சொல்லிமுடியாதபடிக்கு அதிகமானதாகும். இங்கு அமர்ந்திருக்கும் ஊடகவியலாளர்கள் உட்படப் பலர் இன்றும் அதேபோன்ற ஆபத்துக்குத் தொடர்ந்தும் முகங்கொடுத்தும் வருகின்றனர். இருண்ட காலகட்டங்களிலுங்கூட பாதுகாக்கப்பட்டு வந்துள்ள தொழிற்துறையில் ஒரு சட்டத்தரணி என்ற ரீதியிலே, பெரும் விலை கொடுத்த இந்தப் பிராந்தியத்தைச் சேர்ந்த ஊடகவியலாளர்களுக்கு எனது ஆழ்ந்த கனத்தை வெளிப்படுத்துவதற்குக் கிடைத்த சலாக்கியமாகவே இதனை நான் பார்க்கிறேன். அறிந்துகொள்வதற்கான எமது உரிமையைப் பாதுகாப்பதிலே பெரும் கிரயத்தைச் செலுத்திய அவர்களைச் சிரம் தாழ்த்திக் கனம் செய்கிறேன். இந்தக் காலைப்பொழுதிலே பேசும்படியாக எனக்குத் தரப்பட்ட தலைப்பு, “போர்க்குற்றங்களுக்கான பொறுப்புக்கூறுதலும் ஊடக சுதந்திரமும்” என்பதாகும். மக்களைச் சுண்டியிழுக்கும் ஒரு தலைப்பாக இது தெரிந்தாலுங்கூட, ஊடகவியலாளர்கள் – குறிப்பாக வடக்குக் கிழக்கிலே உள்ளவர்கள் – அனுதினமும் முகங்கொடுக்கும் அம்சங்களையே நான் கவனத்திற்கொள்ள விரும்புகிறேன். இப்படியான தலைப்பைக் கையாள்வதற்கு நான் எனது உரையை இரு பகுதிகளாகப் பிரித்துக்கொள்ள விரும்புகிறேன். முதலாவதாக, சர்வதேசக் குற்றச்செயல்களைத் தெரியப்படுத்துவதிலே ஊடகத்தின் (மற்றும் ஊடக சுதந்திரத்தின்) வகிபங்கு. இரண்டாவதாக, நிலைமாற்றுக்காலநீதியின் செயன்முறையிலே கடந்தகாலத்திலே இடம்பெற்ற சர்வதேசக் குற்றச்செயல்களைக் கையாளுவதிலே ஊடகத்தின் (மற்றும் ஊடக சுதந்திரத்தின்) வகிபங்கு. வேறுபல நாடுகளைப்போலவே இலங்கையிலும் போர்க்குற்றங்கள், மனுக்குலத்துக்கு எதிரான குற்றச்செயல்கள் மற்றும் இன அழிப்பு ஆகியவை பற்றி அறிக்கைசெய்வதென்பது ஆபத்தான காரியமாகும். அநேகமாக இந்தக் குற்றச்செயல்கள் தமது குற்றச்செயல்கள் பகிரங்கப்படுத்தப்படுவதை விரும்பாத மிகவும் வல்லாதிக்கமுள்ளவர்களால் இழைக்கப்படுவதுண்டு. போர்க்குற்றங்கள் பற்றி அறிக்கைசெய்வது பெரும் ஆபத்தை விலைக்குவாங்வது போன்றதே. வாளைவிடப் பேனாமுனை பலம் மிக்கது என்பதைப் போரிடும் தரப்பினர் உணர்ந்திருப்பதாலே ஒருவேளை இப்படியாகக்கூடும். ஆயினும், இப்படியான ஆபத்துக்களிலிருந்தும், யுத்த வலயங்களுக்குள் நுழைவது மறுக்கப்பட்டிருந்தும், பல நாடுகளிலே போர்க்குற்றங்களையும் வேறு சர்வதேசக் குற்றச்செயல்களையும் வெளிக்கொணர்வதற்கு ஊடகவியலாளர்கள் உதவியுள்ளனர். சர்வதேசக் குற்றங்கள் இடம்பெறுகையிலே அவற்றைத் தமது ஸ்மார்ட் கைத்தொலைபேசிகளிலே பதிவுசெய்து, வலைத்தளங்களுக்கு அந்தச் சான்றுகளைத் தரவேற்றும் ‘குடிமக்கள் ஊடகவியலாளர்கள்’ அதிகரித்து வருகின்றனர். இந்த யுக்தி இலங்கையிலும் கணிசமான அளவுக்குப் பயன்படுத்தப்படுவதை நாம் கண்டுள்ளோம். உதாரணமாக. நுழைவு அனுமதி மறுக்கப்பட்டிருந்த மெனிக்பாம் தடுப்புமுகாமின் ஆரம்பகட்டத்து நிலைமை மற்றும் அங்கு அடைக்கப்பட்ட மக்களின் மோசமான நிலைமை போன்றவற்றையிட்ட படங்கள், அந்த முகாமுக்குள் சென்ற குடிமக்கள் ஊடகவியலாளர்களாலேயே வெளிக்கொணரப்பட்டன. ஆயினும், குற்றங்கள் மத்தியிலே ஊடகவியலாளர்கள் சேதமாக்கும் வகிபங்கை வகிப்பதும் சாத்தியமே. மனுக்குலத்துக்கு இழைக்கப்பட்ட மோசமான இன அழிப்புக்களின்போது எப்படியாக ஊடகங்கள் பயன்படுத்தப்பட்டன என்பதையிட்ட உதாரணங்களையும் நாம் கண்டுள்ளோம். பல மில்லியன்கணக்கான மக்கள் கொலையுண்ட ஜேர்மனி மற்றும் ருவாண்டா ஆகிய நாடுகளிலே, அந்த இன அழிப்பை ஊக்குவித்து அவற்றை ஒழுங்கிணைக்க உதவிய வானொலி நிலையப் பணியாளர்களே அவற்றுக்குப் பொறுப்பைக் கொண்டவர்கள். இலங்கையிலுங்கூட, உலகெங்கிலும் பயன்படுத்தப்படும் யுக்தியான ‘நடுகை ஊடகவியலாளர்’ பயன்படுத்தப்பட்டதை நாம் கண்டுள்ளோம். ஒரு தரப்பாரை ஆதரிக்கும் ஊடகவியலாளர்கள் இராணுவ அலகொன்றிலே உள்வாங்கப்பட்டு யுத்த வலயங்களுக்குச் செல்லும் அனுமதி அவர்களுக்கு வழங்கப்படுவதுண்டு. களநிலைச் செய்திகள் பற்றிய உண்மையின் விளக்கத்தை வழங்குகையிலே, இத்தகைய ஊடகவியலாளர்களின் அறிக்கைகள் பக்கச் சார்பானதாக இருப்பது இயல்பானதே. அதேபோலவே, குடிமக்கள் ஊடகவியலாளர்களும் அபத்தமானவர்களாக ஆகிடக்கூடும். ஒன்றில் அவர்கள் ஒரு தரப்பாரின் கொள்கைபரப்பினை ஊக்குவிப்பதாலேயோ அல்லது ஊடக விதிகள் மற்றும் தர்மங்களுக்கு ஒழுகாத பொறுப்பற்ற சமூக ஊடகப்பயன்பாடுகளாலேயோ இப்படியாகலாம். எனவே, மோசமான குற்றச்செயல்களை வெளிக்கொணர்வதற்கு எப்படியாக இலத்திரனியல் மற்றும் அச்சு ஊடகங்கள் செயற்படுமோ, அதேபோலவே அந்தக் குற்றங்களை மூடிமறைக்கவும் மேலும் குற்றங்களைச் செய்யும்படி ஊக்குவிக்கவும் ஊடகம் பயன்படுத்தப்படலாம். இதனாலேதான், சான்று இருந்தாலுங்கூட பெருமளவிலான குற்றச்செயல்கள் இடம்பெறுகின்றதையிட்டு உலகுக்கு உறுத்தியுணர்த்துவது கடினமானதாகிறது. தப்பான தகவல்களின் திரட்சியால், தீர்மானம் எடுப்பவர்களுக்கு யாரை நம்புவது என்ற குழப்பம். இலங்கையிலே, பிரதானமாகச் சர்வதேச விசாரணையைத் தவிர்க்கும் பிரகாரமாக, இராணுவமும் முன்னைய அரசும் திட்டமிட்டுப் புனையப்பட்ட தப்பான தகவல்களைச் பரப்பி வந்தது. “குடிமக்களின் இறப்பு பூச்சியம்”, “யுத்த சூனியப் பிரதேசம்”, “சகல கனரக ஆயுதங்களையும் முடிவுக்குக் கொணர்தல்”, மற்றும் “மனிதாபிமான நடவடிக்கை” போன்றவைகளைப் பற்றி அவைகள் பேசிவந்தன. இந்தப் பொய்கள் கூறப்பட்டுக் கொண்டிருக்கும் போதே குண்டுத்தாக்குதல்களால் ஆயிரக்கணக்கான அப்பாவிக் குடிமக்கள் கொலை செய்யப்பட்டனர். எனவே, சர்வதேசக் குற்றங்களையிட்டு அறிக்கையிடும் ஸ்தாபனங்களின் நம்பகத்தன்மை பற்றிய கேள்வி இங்கே எழுகிறது. பாதுகாப்பதற்கான பொறுப்புக் கோட்பாட்டின் (Responsibility to Protect Doctrine) வெளிச்சத்திலே இந்தக் கேள்விகள் பொருத்தமானவை. ஒரு நாட்டிலே சர்வதேசக் குற்றங்கள் பெருமளவிலே இடம்பெறும்போது, அவற்றைத் தவிர்ப்பதற்குக் குறிந்த அந்த நாடு நடவடிக்கைகள் எடுக்காவிட்டால், சர்வதேசச் சமூகம் குடிமக்களைப் பாதுகாப்பதற்கு ஐ.நா. பாதுகாப்புப் பேரவையின் பணிப்புரையின் கீழ் பல படிமுறைகளை எடுத்திடலாம். சர்வதேத் தீர்மானம் எடுப்போருக்கான கேள்வி தொடர்கிறது – என்ன நடக்கிறது என்பதே தெரியாவிட்டால், என்ன செய்வது என்று எமக்கு எப்படித் தெரியும்? லிபியா மற்றும் சிரியா ஆகிய நாடுகளிலே அண்மை காலங்களிலே இடம்பெற்ற பூசல்களின்போது, அவை தொடர்கையிலேயே அவற்றை விசாரிப்பதற்கு ஐ.நா. ஒரு விசாரணை மன்றத்தை அமைத்து, ஐ.நா. இற்கு எந்த நடவடிக்கைகள் எடுக்கப்படலாம் என்பதைப் பரிந்துரைத்திருந்தது. ஆயினும், இந்த விசாரணைகள் நீடிய காலம் எடுக்கும் என்பதுடன், களநிலை அறிக்கையிடுதலுக்கு அவை மாற்றீடாக அமையவே அமையாது. ஆனால், ‘களநிலை அறிக்கையிடுதல்’ வல்லமையுள்ளதாய் இருப்பதை உறுதிசெய்வதற்கு அதன் நம்பகத்தன்மை மிக முக்கியமானதாகும். அதாவது, அது தொழிலாண்மை கொண்டதாயும் நேர்மையானதாயும் நடுநிலையானதாயும் இருக்கவேண்டும். அது ஒரு தரப்புக்குப் பக்கச்சார்பானதாகக் கண்டுகொள்ளப் படக்கூடாது. முன்நகர்ந்து செல்வதற்கு நாம் கற்கவேண்டிய பாடம் இதுவாகும். நாம் நேர்மையானவராயும், நிதர்சனமானவராயும், சகல பாதிப்புற்றோரினதும் மனித உரிமைகளைப் பாதுகாத்து அதனை ஊக்குவிக்கும் நிகழ்ச்சித் திட்டத்தைக் கொண்டவராயும் இருந்தால், சர்வதேச விடங்களிலே மாற்றங்களை விளைவிப்பதற்கு அவசியமான நம்பகத்தன்மையை உலகம் தரக்கூடிய சாத்தியம் உண்டு. நான் ஏற்கெனவே பகிர்ந்துகொண்டதைப்போல, எனது பேச்சின் இரண்டாம் பகுதியிலே நான் நிலைமாற்றுக்கால நீதியும் ஊடக சுதந்திரமும் பற்றிய விடயத்தைக் கவனத்திற் கொள்ள விரும்புகிறேன். அதாவது, குற்றங்கள் இழைக்கப்பட்ட பின்பு சமூகமானது அந்தக் கடந்தகாலக் குற்றங்களைக் கையாள எத்தனிக்கையிலே ஊடகத்தினதும் ஊடக சுதந்திரத்தினதும் வகிபங்கு என்ன என்பதே. பலவிதங்களிலே போர்க்குற்றச்செயல்கள் அம்சங்களிலே அறிக்கையிடும் இந்தப் பகுதி அவ்வளவு கிளர்ச்சியான அனுபவமாய் இராவிட்டாலுங்கூட, இதுவும் அதேபோலவே முக்கியமானதாகும். நிலைமாற்றுக்கால நீதி (Transitional Justice) என்பதால் நாம் கருதுவது என்ன? கடந்த காலங்களிலே பெருமளவிலான குற்றச்செயல்கள் இழைக்கப்பட்டுள்ள இடங்களிலே கடந்த காலத்தை மேற்கொள்வதற்கும் அதைக் கையாள்வதற்கும் சமூகம் மேற்கொள்ளும் படிமுறைகளே இவை. நிலைமாற்றுக்கால நீதிக்கு நான்கு தூண்கள் உண்டு. அதாவது. உண்மை, நீதி, திருத்தியமைப்பு மற்றும் மீள இடம்பெறாது என்பதற்கான உத்தரவாதம் ஆகியவைகள். எனவே, குற்றவியல் விசாரணைகள், வழக்குகள், உண்மை அறியும் ஆணைக்குழு, நிவாரண நிகழ்ச்சித்திட்டங்கள், மற்றும் நினைவுகள் ஆகிய அனைத்துமே நிலைமாற்றுக்கால நீதியின் பகுதிகளாகும். நிலைமாற்றுக்கால நீதியின் பிரதான கோரிக்கைளுள் ஒன்றுதான் அதன் பொறிமுறைகளின் வடிவமைப்பு மற்றும் அமுலாக்கம் ஆகியவற்றிலே பாதிக்கப்பட்டோர் ஈடுபடுவது பற்றியதாகும். எனவே, பாதிக்கப்பட்டவர்களுடன் நேரடியாகத் தொடர்பாடுவதிலே பிரதானமான பொறுப்பை அரசாங்கம் கொண்டிருக்கும் அதேவேளை, இலங்கை போன்ற ஆயிரக்கணக்கான பாதிப்புற்றோர் உள்ள நிலையிலே, அவர்கள் அனைவரையும் நேரடியாக ஈடுபடுத்துவது என்பது சாத்தியமற்ற காரியமாகும். எனவே, சகல ஊடகங்களும் பல்வேறான நிலைமாற்றுக்கால நீதியின் பங்காளிகட்கிடையே நிலவும் தொடர்பாடற் பிளவைப் பாலமிடுவதிலே உதவும்பிரதான வகிபங்கை வகிக்கலாம். அது பாதிக்கப்பட்டவர்களுக்கும் அரசுக்கும் இடைப்பட்ட அல்லது பாதிகப்பட்டவர்களுக்கும் வேறு பாதிக்கப்பட்டவர்களுக்கும் இடைப்பட்ட அல்லது பாதிக்கப்பட்டவர்களுக்கும் சர்வதேச சமூகத்துக்கும் இடைப்பட்ட பிளவுகளையிட்டதாக இருக்கலாம். இந்த வகிபங்கினை வகிப்பதற்கு ஊடகம் சுயாதீனமானதாய் இருக்கவேண்டும். தொடரும் செயன்முறையினைக் கண்டித்து விமர்சிக்க இயலாத ஒரு சூழ்நிலையிலே அவர்கள் அமர்த்தப்படக்கூடாது. இரண்டாவதாக, அவர்கள் நிலைமாற்றுக்கால நீதியிலே பயிற்றப்பட்டு, அதிலே மேற்கொள்ளப்படும் செயன்முறைகளைப்பற்றிப் புரிந்துகொள்ளவேண்டும். இது மிக முக்கியம். இடம்பெறும் செயன்முறைகளின் வகைகள், அவற்றில் உள்ள குறைபாடுகள், அந்த செயன்முறைகளை மேம்படுத்துவதற்கு பரிந்துரைக்கும் வழிமுறைகள், அந்த செயன்முறைகளால் எதிர்பார்க்கப்படும் விளைவுகள் போன்றவற்றையிட்டு ஊடகவியலாளர்கள் புரிந்து கொண்டாலேயன்றி பாதிகப்பட்டவர்களும் பொதுமக்களும் அந்தச் செயன்முறைகளைப் பற்றிப்புரிந்துகொள்ள மாட்டார்கள். மிகவும் நேர்த்தியான செயன்முறைகளை நீங்கள் கொண்டிருந்தாலுங்கூட, பாதிக்கப்பட்டோர் அவற்றைப் புரிந்துகொண்டு அவற்றிலே பங்கெடுக்க இயலாதிருக்குமாயின், அதனால் பயனேதுமில்லை. எனவே, அச்சு மற்றும் ஊடகத் தொழிற்துறைத் தலைவர்கள் – குறிப்பாக வடக்கு மற்றும் கிழக்கில் உள்ளவர்கள் – அவர்களின் ஊடகவியலாளர்கள் இந்த செயன்முறைகளிலே நன்கு பயிற்றப்பட்டு பாதிக்கப்பட்டோரின் நலன்களைச் சேவிப்பதை உறுதிசெய்யும் கடப்பாட்டைக் கொண்டவர்களாவார்கள். கடந்த வருடம் மார்ச் மாதத்திலே ஜெனீவாவில் இருந்து சில தமிழ்த்தரப்பினர்கள் ஜெனீவா முறைகள் பற்றியும் மனித உரிமைகள் பேரவையின் தீர்மானம் பற்றியும் பல தப்பான தகவல்களைப் பரப்பியதை நாம் கண்டோம். தமிழர்களுக்கு அந்தத் தீர்மானத்தால் எவ்வித நன்மையும் கிட்டாது, அந்தத் தீர்மானத்திலே சர்வதேச விசாரணை எதுவுமே இல்லை, அது ஒரு பலவீனமான தீர்மானம் என்றும் கூறினார்கள். இந்தக் கூற்றுக்கள் பொய்யானவைகள் என்பது ஒருபுறமிருக்க, அவை எந்த மக்களின் நலனுக்காக நகர்த்தப்பட்டதோ அந்தக் மக்களைக் குழப்பிப்போட்டது. இதிலே நாம் கற்றுக்கொள்ளவேண்டிய பாடங்கள் உள்ளது. நிஜங்களையிட்ட எமது பதிலீடுகள் அவற்றையிட்ட சீரியஸான பகுப்பாய்விலும் தொழிற்தன்மையான அறிவிலும் தங்கியிருக்க வேண்டும்; அரசியல் விளையாட்டுக்களிலும் உணர்ச்சிப் பிரவா புக்களிலுமல்ல. தொடரும் செயன்முறைகள் பற்றிய நேர்மையான விபரிப்புகளுக்கும் நேர்மையற்ற விபரிப்புகளுக்கும் இடையே உள்ள வேறுபாட்டை இனங்கண்டுகொள்ளக்கூடிய விதத்திலே எமது ஊடவியலாளர்கள் பயிற்றுவிக்கப்படல் வேண்டும். பாதிக்கப்பட்டவர்களின் உண்மை அறிவதற்கும் நீதிக்குமான உரிமை முழுமையாக உணரப்படும் என்பதே எமது பொதுவான நம்பிக்கையாகும். அந்தச் சேவைக்காக எமது பணி அர்ப்பணிக்கப்படட்டும். ஊடக சுதந்திர தினத்தன்று யாழ். நூலக கேட்போர் கூடத்தில் நிறான் அங்கிற்றனால் நடத்தப்பட்ட பேச்சு இங்கு தரப்பட்டுள்ளது.

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