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Sunday, April 14, 2024

OISL Report: Citizen Introspection and State Responsibility

(Foreign Minister Mangala Samaraweera addressing the General Debate of the 30th Session of the United Nations Human Rights Council in Geneva.)
by Professor Savitri Goonesekere and Ahilan Kadirgamar/ The Friday Forum.

Six valuable years were lost since the end of the war, as the previous Government undermined efforts to seek truth about the tragic past, stalled institutional reforms necessary to rebuild a divided society, and failed to deliver a political solution to ensure the dignity and co-existence of all communities. Instead an anti-democratic political culture with impunity continued. This is the context for the report of the Office of the High Commissioner for Human Rights (OHCHR) Investigation on Sri Lanka (OISL). The report, which documents patterns of grave human rights abuses by the State, State-linked actors and the Liberation Tigers of Tamil Eelam (LTTE), should be a wake-up call to all of us as citizens, and for the new Government which has promised to give political leadership in resolving outstanding national problems.

The abuses documented in the OISL Report are not unknown to us or even to state bodies. The previous commissions, including the Lessons Learned and Reconciliation Commission (LLRC), representations to various commissions, and protests by those who have lost victims to the conflict, have raised these concerns with varying intensity. Yet the worrying character of our political culture has been denial; including as evident from the discourse around human rights in the media and in many public forums.

Divisive nationalist posturing on both sides became focused on the dangers or advantages of international intervention, rather than courageously initiating a process of introspection leading to truth-seeking, investigation and punishment for such offences as are proved, and extensive institutional reform to ensure effective law enforcement as well as relief and remedy for victims.

The usefulness of the report will depend on introspection on the part of us as citizens, and on the Government’s willingness to fulfill commitments made as co-sponsors of the Resolution of the Human Rights Council (HRC). In co-sponsoring this Resolution the Government undertook important obligations to its citizens, and to the United Nations.

HRC Resolution

Some elements consider support for the HRC Resolution as undermining the status of Sri Lanka as a sovereign and independent State.

We need to remind ourselves that Sri Lanka has, from the time of independence, voluntarily become a party to international human rights treaties and global policy documents. Successive Sri Lankan parliaments have passed laws that have incorporated these international standards. Local policies have been influenced by internationally accepted standards in many areas. Some of the laws and policy initiatives have strengthened our response to common problems. Even as our government was responding to the armed conflict in the North and East, important laws like the Convention on Torture Act were passed by Parliament at the instance of the late Lakshman Kadirgamar, then Minister of Foreign Affairs. It is those engaged in adversarial politics for what they perceive as short term political advantage who wrongly use the argument of State sovereignty to reject Sri Lanka’s voluntarily undertaken responsibilities as a member of the community of nations.

HRC 30 insession
HRC 30 insession
The Resolution of the HRC imposes obligations on the government in critical areas that are vital to ensure accountability and the future of our nation. It calls for political will in introducing a system of devolution and power-sharing that will also ensure that governance and national resources are directed for the benefit of all. The resolution requires a clear and committed response by the government to address the alleged gross violations of human rights on the part of both State agencies and the LTTE. This is expected to take the form of a two-track process that incorporates investigation and prosecution in a court of law, and broader institutional arrangements through a separate Truth Reconciliation Justice and Non Re-occurence Commission.

Key public institutions

The Resolution highlights recommendations meant to revitalize and strengthen key public institutions such as the law enforcement agencies, the judiciary, and the military, which we know suffered from deep-rooted problems because of political interference and a lack of professionalism. As citizens we are aware in particular of the decline in the criminal justice system, and many groups have called for repeal of the draconian PTA that has encouraged abuses of human rights in the name of national security. These recommendations must be implemented if we are to address the problems created by the failure of public institutions and their negative impact on good governance and citizens’ rights.

The issue of prosecutions has attracted adverse comment. We have forgotten that this country has a legal system that recognizes that there is no impunity for crimes committed by those who have held or hold public office. Members of the armed forces, police and others have been prosecuted and convicted for offences they have committed. Our Constitution prohibits Parliament from passing laws that create crimes that were not recognized as crimes at the time an act was done. But there are many laws that can be implemented to make people accountable for human rights violations during time of armed conflict.

It has been suggested that obtaining expertise from outside the country in any local investigation or prosecution is an erosion of State sovereignty. Distinguished senior judges from our courts have in the past served on international tribunals. Sri Lankans with acknowledged professional experience have participated in investigations into crimes committed in other countries. The sharing of professional expertise to strengthen investigation and prosecution, particularly at a time when the credibility of our institutions has been questioned including within the country, is not an erosion of our independence. What we need is a criminal justice system that is independent and effective in ensuring competent investigation and prosecution.

The Government must now act with statesmanship and not compromise on its pledges to the people and as a member of the United Nations. We should not approach selectively the commitments undertaken, for all of them are in the public interest. It is vital that the government avoid the trap of ignoring some commitments while taking forward others considered easier to implement. Devolution and institutional reforms to move from militarisation to civilian control, a judicial process of accountability for crimes, and interventions that can develop an environment of trust and reconciliation among all communities, must be equally important national priorities for both citizens and government.

The Friday Forum consist of Professor Savitri Goonesekere, Ahilan Kadirgamar, Shanthi Dias, Priyantha Gamage, Dr. Selvy Thiruchandran, Faiz-ur Rahman, Manouri Muttetuwegama, Rev. Dr. Jayasiri Peiris, Bishop Duleep de Chickera, Dr. A.C. Visvalingam, Professor Arjuna Aluwihare, Suriya Wickremasinghe, J. C. Weliamuna, Dr. Deepika Udagama, Professor Camena Guneratne, Professor Gameela Samarasinghe, Pulasthi Hewamanna, S.C.C. Elankovan, Dr. Devanesan Nesiah, Damaris Wickremesekera, Javid Yusuf, Dr A.C. Visvalingam, Professor Ranjini Obeyesekere, Danesh Casie-Chetty, Chandra Jayaratne

(The Friday Forum is an informal group of concerned citizens pledged to uphold norms of democracy, good governance, the rule of law, human rights, media freedom and tolerance in our pluralist society.)


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