Focus on Rights

During a ten day academic session on the linkages between transitional justice and development in Cape Town, South Africa last week, Sri Lanka emerged as a classic example of a country which experimented with the latter at the cost of the former and therein, paid an expected heavy price.

To many, these two themes would appear to be widely disparate. Development seems to be on an entirely different plane to addressing questions of transitional justice which, in its current usage, means the effective delivery of justice to societies in transition from conflict to post conflict.

But some thinkers see the two as being inextricably linked. To what purpose are development efforts if the very targets of those efforts are not afforded genuine healing in terms of their loss? Can there be actual development without addressing their demands for justice?

In the post eighties for example, the Kumaratunge administration shrugged away a comprehensive reconciliation process in regard to the thousands of persons killed and disappeared during the conflict between the Janatha Vimukthi Peramuna and the then United National Party government. Commissions of Inquiry into Enforced Disappearances were sought to be used as political vehicles of vengeance. Their carefully thought out recommendations in regard to providing reparations for the affected persons were not heeded, excepting the payment of some paltry compensation. Prosecutions were not initiated against perpetrators found responsible. Both in the retributive and reconciliation sense, Sri Lanka's rulers failed their people.

In these cases, as in others, the stock excuse trotted out by state prosecutors was that witnesses were not willing to come forward or had changed their story midway through the process. Yet, in the absence of a witness protection scheme, was this something to be marveled at? Is it not the first and primary duty of the State to have put into effect such a scheme when its need was felt so long ago? It is a sad reflection that even decades after this period of terror, there is yet no witness protection scheme. This is now being used as a convenient excuse as to why similar patterns of terror cannot be deterred with the re-emergence of war in the North.

But there is more to this saga. In a column written some years back, I had occasion to examine the process leading up to what was referred to laughably, as Sri Lanka's Presidential Truth Commission on the July 1983 ethnic riots. The analysis revealed particular flaws in the process that continue to be symptomatic of the bigger malaise of non-accountability that is commonly prevalent.

For example, this Commission was not created through a collective or multi partisan process. Instead, we had a presidential appointment of three individuals who were given the herculean - and 'single' handed - task of inquiring into and reporting on ethnic violence during a particular period.

Its naming as the Truth Commission drew emotional parallels with the South African Truth Commission. The South African Truth and Reconciliation Commission (TRC) was however, quite different from its Sri Lankan namesake, both in substance and in form. First, it was created following an extensive process of discussion and consultation by all political parties in South Africa. Set up by Act of Parliament, all its Commissioners were highly reputed persons whose appointments were by political consensus. Secondly, the TRC had a detailed composition with three committees on Human Rights Violations, on Amnesty and on Reparation and Rehabilitation.

Each had distinct tasks. The Committee on Human Rights Violations collected the stories of victims while the Committee of Amnesty heard evidence on political crimes committed during this period and considered whether amnesty could be granted on a full confession by the perpetrator. Amnesty meant that they would be pardoned for the crime that they had committed and if they were on trial, the trial would be stopped. The Committee on Reparation and Rehabilitation investigated ways to help people who had suffered. Besides this, it considered the manner in which a culture of human rights could be built in the police force, the prisons and other government institutions. In addition, the TRC had an independent investigation unit, made up of lawyers, members of the police force and international experts, who were given powers to question persons and to search and seize documents.

South Africans were informed through public meetings, posters, leaflets and the media, of the purpose of the TRC which was to put together a complete picture of all the serious human rights violations that took place in the country between March 1960 and December 1993. From all these perspectives, it was ludicrous that any similarities could be found with this process and the so-called Sri Lankan Truth Commission. It was certain that its report would be tossed into the dustbin of government oblivion, which indeed, has been the case since then.

Then again, post Ceasefire Agreement (CFA) in 2002, there was another good opportunity for addressing outstanding transitional justice questions in the North East. But this too, was left to the not-so-tender vagaries of the CFA, which almost but completely lacked a rights sensitive base.

We see the consequences of these omissions when the abuses of life and liberty threaten to pull Sri Lanka back into the dark years when its disappearances were counted as being second only to Iraq in the world. Post 2002, there were extensive development efforts being initiated in the war-affected areas. What is the state of these rebuilt schools, hospitals and houses now when the renewed war has resulted in these structures being shelled into ruins once again? And what of those affected communities? Therein lies the danger of embarking on processes of development without addressing deeply important questions of accountability and justice.

Currently, the Government is said to be considering a Presidential Commission of Inquiry to look into uninvestigated killings and disappearances in recent times. Despite a reluctant concession to allow a group of 'international eminent persons" to act as observers, there can be little confidence that this process will result in anything more effective than past innumerable commissions with similar mandates. We should therefore be rigorous and unsparing in our scrutiny and monitoring of this Commission. Doubtless, the soundless anger and grief of the countless Sinhalese, Tamil and Muslim victims in this country demand that much from us.