Non-implementation of recommendations of the Presidential Commissions appointed by President Mahinda Rajapaksa resulted in the erosion of trust and confidence resulting in a series of resolutions in the Human Rights Council on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka
by Mangala Samaraweera
At a Press Conference on 15 October 2019, Presidential Candidate of the SLPP, Mr. Gotabaya Rajapaksa, dismissed Sri Lanka’s commitments to our citizens on human rights, rule of law, and processes for truth-seeking, reparations, and guarantees of non-recurrence including Resolution 30/1. He also dismissed the need to address the grievances of families from all parts of our country whose loved ones including security forces personnel are missing. With the arrogance of an authoritarian regent, he remarked that the “people in the North and East have more important issues: jobs, education, etc, and we can’t hang on to old things; we have to move forward”. By saying this, he claimed that he and he alone knows what is best for each and every individual citizen in this country including how they should think and feel including in the face of personal tragedy.
Listening to this, I thought that it is my duty to remind the citizens of our country about the history of how, during the Rajapaksa-era, we erred in dealing with our conflict-ridden past, isolating our country on the international stage and how we regained our stature following the January 2015 Presidential Election by reasserting our sovereign right to deal with our own issues locally.
On 26 May 2009, President Mahinda Rajapaksa and the Secretary-General of the United Nations made a Joint Statement which said:
“Sri Lanka reiterated its strongest commitment to the promotion and protection of human rights, in keeping with international human rights standards and Sri Lanka’s international obligations. The Secretary-General underlined the importance of an accountability process for addressing violations of international humanitarian and human rights law. The Government will take measures to address those grievances.”
Further, on 27 May 2009, the Government of Sri Lanka proposed a Resolution on its own in the UN Human Rights Council in Geneva titled ‘Assistance to Sri Lanka in the promotion and protection of human rights’ which was adopted by a vote.
However, the Government failed to address the grievances of citizens of all communities in our country as undertaken in May 2009. The Government also failed to restore the honour of our security forces and police, by investigating allegations in terms of the due process of the law so that action is taken against those who have committed crimes, and others do not have to suffer in disgrace for years to come.
As you would all remember, President Rajapaksa appointed the ‘Lessons Learnt and Reconciliation Commission’. Yet, implementation of its recommendations was ignored. Then, yet another Commission titled the ‘Presidential Commission to Investigate Complaints Regarding Missing Persons’ (Paranagama Commission) was appointed. This included a foreign Advisory Council comprising, among others, Rt. Hon. Sir Desmond de Silva QC (UK) and Professor David Crane (USA). There were alsoforeign experts supporting the Council including Mr. Rodney Dixon, QC. (UK/ South Africa), Professor Michael Newton (USA) Vanderbilt University who formerly served as the Senior Advisor to the United States Ambassador-at-Large for War Crimes, Commander William Fenrick (Canada), Professor Nina Jorgensen, Major General John Holmes, and Mr. Paul Mylvaganam (UK).
Non-implementation of recommendations of the Presidential Commissions appointed by President Mahinda Rajapaksa resulted in the erosion of trust and confidence resulting in a series of resolutions in the Human Rights Council on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka in 2012, 2013, and 2014.
Although Sri Lanka refused to participate in a dialogue with the co-sponsors and dissociated itself from these resolutions, they were adopted irrespective of Sri Lanka’s disassociation, and by 2014, the Council had set up an investigation on Sri Lanka called the OHCHR Investigation on Sri Lanka (OISL). This was the first ever international investigation on a human rights situation in our country.
By December 2014, Sri Lanka had become isolated on the international stage. Our security forces were deprived of peacekeeping opportunities and training opportunities in the developed countries of the world, naval ship visits from the developed countries of the world had ceased and so had joint exercises, EU GSP+ facility had been withdrawn, there was a ban on fish exports from Sri Lanka to the EU, IMF and World Bank had stopped lending to Sri Lanka, the economy was burdened by debt taken at commercial rates for vanity projects, the judiciary was in tatters with a weakened rule of law regime and the impeachment of the Chief Justice, investor confidence was at an all time low, and Sri Lanka’s stature on the international stage had eroded, and so had confidence, credibility and trust.
The Report of the OHCHR Investigation on Sri Lanka was due in March 2015, and further strictures including targeted measures on individuals were expected following the release of the Report.
It was in this backdrop that the Government, following the Presidential Election on 08 January 2015, based on the mandate received from the voters to implement the 100 Day Programme, presented its own proposals and co-sponsored Resolution 30/1 to regain and reassert Sri Lanka’s sovereign right to solve its own problems locally, so that space for any further international action or strictures would not be open. This was the path to establish durable peace and reconciliation in our country, restore Sri Lanka’s dignity on the international stage as a state that takes responsibility to address the problems of all sections of its own citizens, renew Sri Lanka’s engagement with the international community, rebuild eroded trust and confidence, restore the dignity of our security forces, police and judiciary, and usher in the sustained stability required for investor confidence and durable prosperity for all our citizens.
It is as a result of this resolution (30/1) that prospects for international action initiated through resolution 25/1 of March 2014 and the OISL (OHCHR Investigation on Sri Lanka) that was adopted during President Rajapaksa’s regime was effectively halted. It is important to remind everyone that it is only if we as a responsible and sovereign nation fail to act that we place our citizens in grave peril by allowing space for others to step in, and international action as well as universal jurisdiction to apply.
If you look at the content of Resolution 30/1 carefully, you will understand the objective of the reconciliation agenda which contains a series of measures covering reconciliation, rule of law, security and confidence-building that is necessary for long-term development of our nation.
Many of these measures have been implemented, and in some others the progress has been partial but is ongoing. These measures include: creating institutions to ensure the rights of victims as well as the future safety, security and wellbeing of all citizens; judicial independence which even Mr. Gotabaya Rajapaksa has since acknowledged and benefitted from; constitutional reform, so that we can all live, work, and prosper together in dignity; and addressing shortcomings so that everyone can enjoy peace in their own lands and houses.
The key provisions in the resolution are:
• The establishment of an Office on Missing Persons, to undertake the humanitarian and compassionate task of determining the fate and whereabouts of the missing along the history of all our past conflicts and crises. The OMP, quite simply, restores the right of every Sri Lankan family, of any background, language or religion, to know what happened to their missing loved ones and to take measures to impress upon our nation’s soul, the non-recurrence of disappearances in future. As it has been noted, the missing in our country includes hundreds if not thousands of families of our soldiers as well as police personnel, missing in action.
• The creation of an Office for Reparations, to ensure that all the persons affected by conflict have a fair opportunity to rebuild their lives, to receive adequate reparation, to be recognized in their dignity as human beings and citizens to receive appropriate satisfaction. The Office will be a permanent mechanism that will formulate policy which can help all citizens even in unfortunate events in future.
• The establishment of a Truth and Reconciliation Commission that will clarify the events of the conflict, including those most disputed and controversial, in order to lift the veil of secrecy and speculation, and to listen to all the victims and survivors, in a compassionate and dignified way. Everyone can tell their story. This includes the military.
• The establishment, within our national legal system, of “a judicial mechanism with a special counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law”, a mechanism that the Resolution explicitly calls “aSri Lankan judicial mechanism”not an international one, in which there would be the participation of foreign jurists just like President Mahinda Rajapaksa had foreign experts in the Paranagama Commission.
Could any citizen actually say that allegations should not be investigated when we are bound by our own Constitution to provide for the equal protection of the law? Shouldn’t we do justice to all our citizens including our security forces personnel by investigating allegations so that those who may not be guilty of a crime do not have to carry the weight of an allegation with them to the grave? Should we let allegations remain without investigations and make our security forces personnel vulnerable to be subjected to universal jurisdiction?
Ten years after the end of the conflict in the North and the East, and almost thirty years after the end of the second insurrection in the South, we seem to continue fratricidal conflicts in our hearts, with the anger of the fighter, instead of the compassion of the peacemaker and peace-builder.
In 2015, Sri Lanka ceased to be the pariah nation we were in the period immediately before that where we were fighting everyone and cornering ourselves. We took control of the accountability and reconciliation agenda, and we put the world as our witness. We regained our place as a responsible sovereign nation alongside the rest of the world, because we had regained our heart, and our identity as a compassionate, proud, diverse nation, full of hope and inspiration to march forward, holding our heads up high, to be the best that we could be.
That, and not the lies and exaggerations, is what will win in the end: our love for our Mother Lanka, our freedom, our wonderful diversity, our faith, our capacity to reconcile, and our capacity to live and work together with unity of purpose – to make our country the developed country it deserves to be with no space for recurrence of conflict, working together in friendship with the international community including the United Nations.
( The writer is the Minister of Finance, Government of Sri Lanka)
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