Neighbourhood Watch

Sri Lanka is creating a new Constitution and the people have spoken – more than 7,000 of them

Vast numbers of people have offered their views on judicial mechanisms to help the island move out of the shadow of war.

Sri Lankan activists will tell you that the island has a commission culture. In the last 15 years alone, people have stood up and testified before dozens of committees – some, such as the Udalagama Commission, investigating human rights abuses, and others, such as the Mahanama Tilakaratne and Paranagama Commissions, looking into abductions and disappearances. There have been commissions dedicated to lessons learnt (Lessons Learnt and Reconciliation Commission) and on constitutional reform (Public Representations Committee).

Thousands of Sri Lankans have testified, and thousands have been disappointed by how little has changed despite their courage. This is why when the Consultation Task Force – a government-appointed body with members from civil society – released its Final Report on Reconciliation Mechanisms on January 4, its authors admitted they were concerned that their witnesses suffered from “commission fatigue”.

But despite this, 7,306 Sri Lankans came forward to have their say on a transitional justice system and a new Constitution that would help the country address deep schisms left behind by a nearly 30-year-long war between the government and the militant separatist group Liberation Tigers of Tamil Eelam. The report collates the results of a series of district and provisional-level consultations carried out across the country, and represents a diversity of voices. In these pages are members of the military, mothers of the disappeared, CEOs, bureaucrats, Malaiyaha Tamils (originally from the plantations) and the indigenous Veddas. There are Sinhalese displaced from border villages, former Liberation Tigers of Tamil Eelam combatants, and Muslim IDPs (internally displaced persons) who have yet to return home. There are extremist, ultra-nationalist Buddhists.

The number of participants at individual public meetings varied in the zones with the highest participation being 1,190 in Batticaloa and the lowest, six in Jaffna. Overall, the poor turnout has been attributed to a variety of issues, including apathetic outreach by the government, a lack of interest from the mainstream media, and harassment and intimidation of witnesses, particularly in the north and east.

What was successful were the Zonal Task Forces that ran the consultations. These were deliberately diverse, representing every religion, ethnicity and regional language and comprising over 50% women. “This is a historic moment for Sri Lanka,” Mirak Raheem, an activist and member of the Consultation Task Force, told Scroll.in. The 11-member committee found that the public was pleased at being consulted, for the first time, by the state instead of being presented with a fait accompli, many for the first time.

Public opinion

The consultations came about when Maithripala Sirisena’s new government, elected in January 2015, chose to make a radical departure from the policies of the Mahinda Rajapaksa regime and co-sponsor a resolution at the United Nations Human Rights Council in Geneva that year.

The resolution proposed four mechanisms relating to transitional justice – an Office on Missing Persons, an Office of Reparations, Truth, Justice, Reconciliation and Non-Recurrence Commissions, and a judicial mechanism comprising a special court and an Office of a Special Counsel.

In presenting these to the public, the task force chose to encourage people to offer their opinions not just on the four mechanisms but also to freely suggest other reconciliation methods and priorities. People overwhelmingly wanted these to break out of the usual Colombo-centric set-up and instead be available to them in their areas, accessible in their language of choice. The submissions raised a wide array of issues, ranging from accountability for crimes committed during multiple conflicts in Sri Lanka, demands for truth, compensation for victims and other forms of reparations, to a political solution for the ethnic conflict and land grabs by the armed forces and other state groups, noted Raheem.

The families of the disappeared formed a large proportion of the people who became a part of these consultations. “I don’t want compensation,” a woman whose husband was abducted in 1990 told the commission in Trincomalee. “Who did this? Why? Only then will I talk about compensation.”

Many had not given up hope that their loved ones were still alive. One family in the south said they wanted a certain detention centre investigated to see if their children still lived. “Doesn’t matter if they’re disabled or without limbs,” they said. “If they’re alive, that’s enough.”

Many of the most dedicated campaigners were women. “The complexity of transitional justice has come out thanks to the engagement of women,” said Shreen Abdul Saroor, one of the founders of the Mannar Women’s Development Federation.

Government commitment

Saroor sees the real danger ahead as being in the state making showy, token efforts that do nothing to ensure justice for families. “The government just wants to ensure that Sri Lanka disappears off the agenda of the next UN Human Rights Council,” she said.

A major proposal of the Consultation Task Force – which is, the creation of a hybrid court comprising both Sri Lankan and foreign judges, prosecutors and investigators to try cases typically left uncovered by traditional penal systems such as war crimes or crimes against humanity – is also unlikely to find state support. A day before the report was released, the government reiterated its determination that foreign judges or prosecutors would not be allowed to participate in such an exercise.

The people themselves are divided on issues such as how crimes committed by the Liberation Tigers of Tamil Eelam should be prosecuted. “The people were certainly not in favour of amnesty for very serious crimes,” said Dr Paikiasothy Saravanamuttu, secretary of the Consultation Task Force. “They wanted a robust witness and victim protection unit. They wanted to make sure there was the independence of these various commissions.”

The Consultation Task Force reports that the people of Sri Lanka are united in their desire to see movement on all these issues. The call for justice was not restricted to the Tamils of the north and east, but was also made by Sinhalese and Muslims with regard to the war (1983-2009), the youth insurrection and political violence between the Janatha Vimukthi Peramuna, a communist party, and the government (1971 and 1987-’89), the anti-Tamil pogrom (1983), and violence and discrimination against minority religions in post-war Sri Lanka.

Communities who have been historically marginalised and discriminated against, such as the Malaiyaha Tamils and the indigenous Veddhas, were determined to be heard as well. “We have a 37,000-year-old history,” an Adivasi leader told the commission. “From the day King Vijaya came here until today, we have only been subjected to harassment.”

To the disappointment of many, neither Prime Minister Ranil Wickremesinghe nor President Maithripala Sirisena were on hand to receive the final report of the task force on January 3. “Critics of this process got ammunition from that,” Bhavani Fonseka, a senior researcher at the Centre for Policy Alternatives, said. When the government rushed a bill on the Office on Missing Persons through Parliament in August even as consultations were ongoing, people were left questioning whether it ever intended to heed the findings of the task force, particularly since no progress has subsequently been made on setting up the office. “It is my sense that the government has not understood the complexities and nuances involved in the transitional justice process,” Fonseka added. “For them, it’s just checking boxes.”

In 2017, it is hoped that Sri Lanka will begin drafting a new Constitution, and that progress will be made simultaneously on designing and establishing the four transitional justice mechanisms. But schedules are impossible to pin down and government commitment is lacking. “The report should serve as a warning against taking a technocratic and legalese-laden approach to transitional justice,” said Raheem, pointing to victim-centric solutions outlined in the report.

Saroor added, “We do understand that this government will face a tug of war to get these changes through Parliament. It is possible we might never see the colour of a new Constitution… But we have to take ownership of this report. It is ours.”

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