OCTOBER 2016

TJ INSIGHT

Earlier this month, a leaked copy of a draft framework of a Counter Terrorism Act (CTA)--ostensibly drafted to replace the Prevention of Terrorism Act (PTA)--caused deep consternation within and outside Sri Lanka. Containing a long and vague list of offences covering a range of conduct, the CTA draft also preserves the most draconian features of the PTA such as the admissibility in trials of confessions to police officers made by persons in custody, denial of the right to consult a lawyer upon arrest prior to interrogation, long periods of executive detention without charge, and denial of regular bail provisions. The draft has, because of its frightening criminalization of all manner of activities, been rightly described as "worse than the PTA".
This CTA draft followed the public release of a draft amendment to the Criminal Procedure Code, which sought to deny those arrested of the right to consult a lawyer until after police interrogation. The draft was later withdrawn after intense criticism including from the Bar Association and Human Rights Commission.
Troublingly, reform initiatives that are left to the regular structures of the state, and which are not directly handled by either the Foreign Ministry or the informal Working Group on Transitional Justice operating under the aegis of the Prime Minister, appear to result in more regressive proposals than the repugnant laws already on the books. Even the relatively modest and non-controversial amendments necessary to ensure the independence of the Witness and Victim Protection Act are likewise being resisted.
This reality is ominous and must be arrested. In the short term, it requires that the government entrusts human rights related reform initiatives to independent lawyers outside the regular state bureaucracy. The long term resolution however requires deep reform to state institutions, including reform of the Attorney General’s Department, Police Force, Defence Ministry and Ministry of Justice.

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“THE POLITICS OF SEQUENCING: A THREAT TO JUSTICE?”

In our upcoming paper “The Politics of Sequencing: A Threat to Justice?”, we argue that Sri Lanka should eschew a ‘truth first, justice later’ approach to sequence the establishment of a Truth Commission (TRC) and a Special Court. Instead, Sri Lanka should capitalize on the existing political opportunity to establish both mechanisms concurrently and without delay.
Based on our assessment of the existing political context in Sri Lanka, we argue that it is possible to establish the TRC and the Special Court in tandem. In fact, while enacting legislation for a Special Court may be challenging, it is not beyond the ability of the government. This is because Sri Lanka does not face political barriers of the kind that forced countries to renounce justice in the short term and embark on a non-judicial truth-seeking exercise instead.
However, if Sri Lanka fails to seize this opportunity and proceeds to establish a TRC without simultaneously establishing the Special Court and the Special Prosecutor’s Unit promised by the government, this course of action is likely to hamper prospects for justice in the short as well as long term.
 

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