{"id":48109,"date":"2016-08-27T19:36:12","date_gmt":"2016-08-27T23:36:12","guid":{"rendered":"http:\/\/dbsjeyaraj.com\/dbsj\/?p=48109"},"modified":"2016-08-27T19:36:12","modified_gmt":"2016-08-27T23:36:12","slug":"office-of-missing-persons-bill-and-the-interplay-between-finding-the-truth-and-securing-justice","status":"publish","type":"post","link":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=48109","title":{"rendered":"Office of Missing Persons Bill and the Interplay Between “Finding the Truth” and “Securing Justice”."},"content":{"rendered":"

By<\/p>\n

Kishali Pinto Jayawardene<\/strong><\/p>\n

The contradiction was clear if not absurd. Even at the very moment in time that I was being sent unsolicited messages by Colombo\u2019s non-governmental \u2018twitterati\u2019 delighting in self-congratulatory chest-thumping over the turbulent passing of the Office of Missing Persons (OMP) Bill, that euphoria was distinctly missing in the Northern peninsula, among the very people for whom this piece of legislation was (primarily) intended.<\/p>\n

Failure to draw in core constituencies of victims<\/strong><\/p>\n

Let us be clear about this. The fate of the South\u2019s \u2018disappeared\u2019 during the state brutalities of the eighties had not been the motivating factor for this Government\u2019s headlong rush into \u2018solutions\u2019 despite the colorful intertwining of state excesses against the Sinhalese during the eighties to justify the effort. <\/p>\n

Rather, it was the plight of the \u2018disappeared\u2019 in the North and the East which was the central international pressure point necessitating this mad scramble by the coalition Government and its allies, including the North\u2019s Tamil National Alliance (TNA).<\/p>\n

Logically therefore, the constituencies left to struggle in the face of continuing state surveillance and apathy in the former war theatre should have been directly drawn into Sri Lanka\u2019s much trumpeted exercise of \u2018transitional justice.\u2019 But that is not the case, if we leave aside the familiar spectacle of the North\u2019s political representatives claiming to \u2018speak for the people.\u2019 And the anger thereof is searing.<\/p>\n

<\/p>\n

So as the cheers resounded in Colombo\u2019s glitzy lounges, it was a different story in Jaffna with fury counter balanced by disinterest if not apathy. \u2018What will this body give us?\u2019 questioned two agitated mothers whose struggle for their \u2018disappeared\u2019 children involved traipsing despairingly from one governmental agency to another. One mother brandished a newspaper article with a photograph of a line of hopeless faces along the security perimeter of an army camp post 2009 and wailed \u2018that is my child but when I go to that camp and ask where she is, they only tell me that she was never there.\u2019 \u2018Will this Office give me answers for what happened to my child and will it give me justice when I am asked to go before it and cry all over again?\u2019 she persisted.<\/p>\n

Truth vis a vis Justice<\/strong><\/p>\n

There is a vexed interplay between finding the \u2018truth and securing \u2018justice.\u2019 This is what the convenient \u2018pigeon-holing\u2019 of separate \u2018solutions\u2019 (without the affected communities being informed of the connections between each element) into inter alia, an OMP, another of Sri Lanka\u2019s interminable Truth and Reconciliation Commissions and a Special Court ignores. And the refusal to address the issue of flawed justice institutions and pervasive systemic impunity further bedevils the legitimacy of Sri Lanka\u2019s transitional justice package.<\/p>\n

Adding to the confusion is the sudden springing up of \u2018transitional justice experts\u2019, (more or less like instant noodles), half of whose experience in academia or the solid practice of the law in the national courts can be summed up on the back of the proverbial envelope while the other half is conspicuously distinguished by their lack of a popular support base either in the North or the South. Thus, a distastefully elitist mentality predominates which treats the very idea of \u2018peoples\u2019 participation\u2019 with disdain preferring instead to maintain a fa\u00e7ade of handpicked and targeted \u2018consultations\u2019 with carefully \u2018packed\u2019 questions that have the suggested \u2018correct\u2019 answers on what \u2018the victims want.\u2019<\/p>\n

This Colombo \u2018bubble\u2019 as it were is also characterized by a disturbingly fluid ability of many to be part of numerous \u2018government\u2019 committees and task forces while professing to be \u2018non-governmental\u2019 at the same time. Hence we have anti-corruption activists defending the slow pace of corruption cases and human rights activists seeking to justify the failure to engage in substantive security sector reform. Truly this grotesque paradox can only be possible in Sri Lanka.<\/p>\n


\nThe law \u2018being lost in translation\u2019<\/strong><\/p>\n

To be brutally frank, despite the sentimental reminders that I find myself awash in with regard to South Africa\u2019s transitional justice experience, I would be hard put to find a more obvious contrast. The South African process was led by towering personalities in law, in civil rights, in religion and in social justice who hailed not from the secluded corners of \u2018white\u2019 privilege but were instead firmly situated among the South African dispossessed and who counted as honourable, the time spent in prison as punishment for that commitment. Their knowledge of constitutional law was profound. This was in fact, a major reason why their efforts stood up to rigorous scrutiny by the courts and formed a formidable body of jurisprudence which civil rights activists used extensively.<\/p>\n

In Sri Lanka however, the law appears to have been \u2018lost in translation.\u2019 Indeed, this is evidenced beyond the transitional justice sphere where legal challenges come from multiple fronts ranging from the procedural (VAT Bill) to confusion in regard to constitutional concepts (proposal that the 2006 contested Singarasa judgment of the Supreme Court may be \u2018over-ruled\u2019 by the Speaker).<\/p>\n

Reportedly there has also been a simply bizarre proposal that amendments may be entered into the OMP law after the Bill has passed the seal of Parliament and the certification of the Speaker. Meanwhile the much touted asset recovery of criminals of the former regime splutter in legal confusion, only partly owing to loyalists of the former regime. The whole exercise is characterized by what can only be referred to as the phenomenon of great incoherence in government.<\/p>\n


\nAcknowledging the irony<\/strong><\/p>\n

So those of us who throw up our hands in mortified dismay certainly have some justification. What if time was reversed and the Rajapaksa regime was in place? Would there not have been severe remonstrations in regard to the abuse of due process?<\/p>\n

The singular hypocrisy thereof is stark. And the unnerving consequences of such disarray need no elucidation. Already, the judiciary is being reminded by the Parliament of its place in the constitutional scheme of things.<\/p>\n

But for now, it is ironic that those throwing themselves into Colombo\u2019s (well funded) \u2018transitional justice\u2019 fray look down their noses when called to account if a greater participatory model should not have been used when addressing the grief of Sri Lanka\u2019s \u2018disappeared.\u2019 The sight of a \u2018consultation task force\u2019 issuing an interim report on suggestions made by affected communities in regard to the OMP Bill even as the Bill was passed during those very same days is just one of the many perplexingly obvious examples of that irony. Certainly there are many more.<\/p>\n


\nCourtesy: Sunday Times<\/em><\/p>\n

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By Kishali Pinto Jayawardene The contradiction was clear if not absurd. Even at the very moment in time that I was being sent unsolicited messages by Colombo\u2019s non-governmental \u2018twitterati\u2019 delighting in self-congratulatory chest-thumping over the turbulent passing of the Office of Missing Persons (OMP) Bill, that euphoria was distinctly missing in the Northern peninsula, among …<\/p>\n

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