January 2019

DOWNLOAD

TJ INSIGHT

2018 will be most remembered for the coup of 26 October, where President Sirisena attempted to sack and replace the Prime Minister, and dissolve Parliament. To activists and journalists in the field, the increased surveillance and intimidation during the coup was a chilling reminder of pre-2015 Sri Lanka. It was also a warning of how easily Sri Lanka’s transition can be reversed if impunity prevails and institutions are not strengthened. The limited reforms that took place since 2015, including the adoption of the 19th Amendment to the Constitution, have proved critical to preventing a return to an authoritarian rule and possibly the recurrence of large scale human rights violations. These reforms must be strengthened in the coming year, by prioritizing constitutional reform and the Transitional Justice agenda.

Prior to the attempted coup, some limited progress was achieved on the Transitional Justice agenda. The Office on Missing Persons (OMP) was operationalized, with a board that includes several members from civil society. The Office on Reparations Bill was enacted and the draft Bill on the Truth Commission was reportedly approved by Cabinet. The Constitutional Council has called for nominations for commissioners for the Office of Reparations. The CID has also made progress on the investigation of some emblematic cases of abduction and murder, resulting in several arrests, including that of a high-ranking member of the military. However, investigations of other cases remain painstakingly slow and have seen virtually no progress.

Despite some positive steps, much remains to be addressed to achieve truth, genuine accountability and non-recurrence. The OMP is currently under-staffed and constrained by overly bureaucratic procedures. The Reparations Act was criticized by civil society for leaving decision-making on reparations policies to the Cabinet of Ministers. The Counter-terrorism Bill includes draconian provisions condemned by many. Finally, there has been no progress on incorporating international crimes into Sri Lankan law and establishing a Special Prosecutor and Special Court; on security sector vetting; or on the amendment of Victim and Witness Protection Act. Even more appalling is the total silence at policy-level and within government with respect to the commitment to establish a special accountability mechanism.

In 2019, the focus will be on upcoming elections at both the provincial and national level. In this context, it is unlikely that contentious legislation to establish the Special Court and Special Prosecutor’s Office and to incorporate international crimes into domestic law is tabled in Parliament or that significant progress is achieved on other essential accountability measures such as vetting. It is therefore essential that Sri Lanka be kept on the Human Rights Council agenda with renewed commitment to monitor progress on all aspects of the transitional justice and human rights agenda. Critical and constructive engagement with the newly created institutions such as the OMP will also be crucial to support the fulfilment of their mandate.

WHAT’S NEW

ARTICLES

REPORTS

Vetting: A new priority for Sri Lanka’s Transitional Justice Process.

 

On 9 January 2019, Major General Silva was promoted by President Sirisena to the second highest position in the military, as Chief of Defence Staff. This is despite credible allegations of being responsible for human rights and international humanitarian law violations possibly amounting to international crimes. Although his promotion has drawn intense criticism from civil society and victim groups, it is not surprising. For years, Sri Lankan institutions have allowed and contributed to a culture of impunity. Individuals who should be investigated for allegations of corruption and serious crimes, are often promoted and given increased access to power and resources. This alarming pattern of rewarding alleged criminals within the military also takes place on a lower stratum. Senior navy officers implicated in the ‘Navy 11’ case have reportedly been promoted on the recommendation of Admiral Wijeguneratne, who is himself implicated in this case.

Accountability via judicial processes is vital to ensure that those who allegedly committed crimes no longer serve in public institutions. However, a well devised and effective prosecutorial policy will have to be complemented by robust vetting measures especially in the security sector.

Vetting, like other forms of accountability, reinforces rule of law. It sends an unequivocal message that offenders will be held accountable for their actions. It is also essential for non-recurrence and instrumental to renewing trust in State institutions. In contexts where victim groups are wary and resentful of the State, the removal of alleged perpetrators from their positions signals an acknowledgement of past wrongs, and State institutions’ commitment to reform and non-recurrence.

Vetting is also vital to Sri Lanka’s Transitional Justice (TJ) process. For TJ to be successful, various State institutions - including security sector institutions - must be supportive of the process and refrain from interfering with or obstructing the implementation of TJ measures and policies. For example, with respect to truth-seeking and criminal investigations, crucial information can only be obtained from the military.  Failure to devise and implement vetting measures will not only result in such information being withheld, but also in the persistence of threats and intimidation to victims and witnesses, preventing them from participating in the Transitional Justice process.  This pattern of threats and refusals to cooperate with investigations by the military is already evident in ongoing high-profile cases including Prageeth Ekneligoda and the Navy 11, highlighting the immediate need for a vetting process.

As long as alleged perpetrators of mass atrocity crimes remain in their positions, or worse, are celebrated and promoted despite their crimes, transitional justice mechanisms will be unable to act independently and legitimately. A credible vetting process must become and remain a priority demand of diplomats, reformist policy makers, civil society, media, victim groups and the general public. Else, its absence will be a serious barrier to genuine reconciliation, rule of law or institutional reform.

 

In This Issue