We have cautiously welcomed the announcement by the Presidential Media Unit about the appointment of a commission of inquiry into the recent conflict from the perspective of restorative justice.
In our second statement we have also indicated other experiences where credible attempts have been made into the study of past wrongdoings with the idea of truth and reconciliation and the overall perspective of restorative justice. We have mentioned the instances of Germany after the Second World War and the experiences of South Africa. We now have to look into the credibility of the proposed commission.
Genuine or Fake
Is this a genuine attempt to deal with the conflict and the wrongdoings that have taken place with the intention of learning the lessons and taking steps towards corrective actions? Or, will this be yet another exercise in denial and an attempt to suppress the search for truth and the possibilities of developing initiatives for dealing with the wounds suffered by society.
One way of looking into the question of credibility would be to go into the past experiences and apply the test of learning from these experiences. It has been pointed out almost universally by local sources as well as by international opinion that the attempts made so far by the Sri Lankan governments under the titles of ‘commissions’ did not have the genuine intention of achieving those aims. In fact, the experience is that these commissions were attempts at evasion and exercises in denial.
The past commissions have not helped to deal with the problems besetting the entire society of Sri Lanka. They have, in fact, created doubts about the good faith of the government and thereby diminished the possibility of attempting to fix the hopeless conditions that have arisen in the country due to the massive atrocities, massive wrongdoings and the many things that have gone wrong in society on the part of many actors. Will the past experiences of evasiveness, denial and hopelessness be repeated by this new commission? This is a question that needs to be examined with the utmost seriousness.
There are many tests by which the genuineness of a commission can be examined. First of all the most important aspect of such a measurement would be the approach to international norms and standards. The Presidential Media Unit’s communique talks about looking into the recent past from the point of view of violations of international norms of conduct. The very admission of international norms of conduct from this point of view is significant. In the past the international norms and standards were considered as matters of no significance at all. For example there was the deriding of the Geneva Convention relating to war and the treatment of prisoners of war. There was the attempt to treat these principles as alien to Sri Lanka and as having no relevance the country and this has been a particular problem in the past.
However, the communiqué mentioned above uses the words, international norms of conduct and therefore they are the terms of reference of the commission as a key component.
If international norms and standards are maintained then the very mandate and procedure and the appointments of those who are to be in charge of the process will also reflect the respect for international norms and standards. Therefore from the point of view of the scope of the inquiry there should be no limitations that should violate the international norms and standards. International norms and standards will require that all matters relating to the recent conflict be the scope of the inquiry and that all persons who are to be witnesses to whatever aspects of this conflict should be allowed to place before the commission all they know about this issue.
From this point of view we can go into the failed Presidential Commission to Investigate and Inquire Into Alleged Serious Violations of Human Rights which ended up without even publication of its reports and failed to achieve anything. One of the basic problems that came up before that commission was the issue of protection for the witnesses. Many persons were unable to come before the commission because they feared for their lives. Some attempts were made to allow persons to give evidence in camera, for example from the countries to which they had fled. However, that process did not take place with any kind of credibility.
As a part of that problem a law was created to be placed before the parliament to be called the Witness Protection Law. However, while this was done to appease the criticism that was growing against the government and the commission the law was never passed. In fact, it was deliberate swept under the carpet.
First and foremost if any type of inquiry is to be held in Sri Lanka the issue that must be addressed first is a genuine witness protection law and a witness protection programme that is able to inspire confidence. There was no such protection in the last commission and, in fact, even the few police officers who in a dedicated way attempted to provide some kind of protection to the witnesses faced threats to their own lives. Senior policemen went into hiding like fugitives because they themselves were in the list for punishment and if the commission that has now been proposed takes place under the same circumstances it will only create greater threat to the lives of people who are already suffering the losses of their loved ones. If they come forward to give evidence and reveal what they know they will face enormous risk to their personal security.
Therefore addressing this issue in a credible manner will be one of the major problems in Sri Lanka. Sri Lanka today is a country where the fear psychosis is greatly felt. The suppression of media freedoms and the repression that is organised against human rights organisations and civil society groups dealing with human rights problems is directed towards the very creation of this fear psychosis which will diminish any capacity of the victims in finding support to express their grievances. The justice system today in Sri Lanka is paralysed by this enormous crisis of confidence relating to personal security. What kind of guarantees will this new commission provide for the security of witnesses under these circumstances? If this problem is not openly and visibly answered then it could be concluded that the proposed commission will be nothing but a farce. It will bring more danger to the people who know the truth than provide any kind of solace to the people who want to engage in the exercise of a search for truth and justice in Sri Lanka.
Credibility of Commissioners
The next issue will be as to who will constitute the commission. As far as international norms in these matters are concerned it is clearly stated that the credibility of the commissioners should be above suspicion or doubt. They should have credibility from the point of view of their own proven integrity as well as institutional credibility in the sense that they will be provided with the security needed to engage in their work with complete freedom.
From the point of view of integrity we have the example of the attempt to appoint the Constitutional Council. This was one of the occasions in which the nation engaged in a serious manner to ensure that the persons appointed to the highest post of this kind of inquiry are persons who enjoy the confidence of the people. The appointment of the Constitutional Council was done in such a manner where there was representation from all sides of the political spectrum and was also held in glaring publicity before the whole nation.
On the one hand all political parties must have a say in the selections of the persons who are to be the commissioners in this all important commission. They should not be selected secretly and announced suddenly by the president or any other source. Their selection must be subjected to scrutiny and public discussion.
Already comments can be made about some of the names that have been published as possible commissioners in this latest commission. One is a former Attorney General who also has a long record in the Attorney General’s Department. His own past is connected to the exercise of denial on the part of the state. He has represented the Sri Lankan government before UN commissions with the specific purpose of denying everything and as a result there has not been an attempt to deal with the required openness of the issues of such great importance to the country. Also in the case of the killing of the Tamil prisoners in 1983 during the July riots, when the inquiries were undertaken he played a role which came under serious criticism.
There are also other names that have been mentioned none of whom really inspire the confidence that is required for a commission. What should be looked into seriously is whether in the past they have been employed for the purpose of engaging in the exercise of denial or whether they have the credentials of being able to deal with justice in the manner that is required by the norms and standards on which truth and justice is based.
At this stage of the announcement of the commission it is now the time for all Sri Lankans to get involved in the issue of the credentials and the genuineness of a commission of this sort. Will it be done in a manner which will help the country to leave the darkness it has been in for many decades now or will it sink the nation deeper into despair and trouble and hopelessness. Such is the challenge which has been placed before all Sri Lankans and those who are concerned with democracy, rule of law and human rights in Sri Lanka.
For further information please see:
SRI LANKA: The Asian Human Rights Commission cautiously welcomes the move for the appointment of a commission for truth and reconciliation, at: http://www.ahrchk.net/statements/mainfile.php/2010statements/2531/
SRI LANKA: A new commission for restorative justice to deal with difficult past practices of abuse and violence, at: http://www.ahrchk.net/statements/mainfile.php/2010statements/2533/
About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.