{"id":83793,"date":"2024-03-19T00:45:33","date_gmt":"2024-03-19T04:45:33","guid":{"rendered":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=83793"},"modified":"2024-03-19T18:25:52","modified_gmt":"2024-03-19T22:25:52","slug":"83793","status":"publish","type":"post","link":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=83793","title":{"rendered":"The West\u2019s Double Standards and Hypocrisy is not a Justifiable reason for Sri Lanka to plead bland denial of its own responsibilities and indulge in patently superficial \u2018transitional justice\u2019 exercises. Has this charade not gone on long enough?"},"content":{"rendered":"

By<\/p>\n

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

As familiar wrangling in Geneva takes place over the review of Sri Lanka by the United Nations Human Rights Council, there is an eminently sound argument to be made, (ad nauseam until the point is acknowledged) that the country\u2019s many ineffective bodies on transitional justice established to meet \u2018international scrutiny\u2019 actually harm the Rule of Law.<\/p>\n

The State is arguing a bad brief<\/strong><\/p>\n

That harm occurs through repetitive mandates that overlap with each other with the State expending vast amounts of resources on institutions that go nowhere and do nothing other than stir scorn from the very \u2018victims\u2019 whom they are supposed to help. Indeed, it is infinitely wearisome to keep track of these mechanisms on Missing Persons, Reparations and now a proposed Truth Commission.<\/p>\n

Earlier this month, Sri Lanka\u2019s Permanent Representative in Geneva submitted to the 55th Sessions of the Council that the Government remained \u2018steadfast and unwavering\u2026in strengthening the foundations of national unity, post conflict reconciliation and human rights.\u2019 But the evidence that was put forward to establish that promise remained thin on the ground.<\/p>\n

That is, apart from the routine citation of a promised Truth Commission and that the Office of Missing Persons had \u2018met\u2019 with complainants. There was a faintly ludicrous claim that sixteen persons had been found \u2018alive\u2019 in 2023. Meanwhile, an Office for National Unity and Reconciliation had been established by statute, the Council was told.<\/p>\n

<\/p>\n

For whom are these new laws?<\/strong><\/p>\n

Of course none of these measures have the faintest tinge of credibility about them. And the Government\u2019s reassurances about the preposterous Online Safety Act being amended \u2018in good faith\u2019 must be taken with more than a pinch of salt. The upshot is that such exercises do not ring true with either the so-called \u2018international community\u2019 or the Sri Lankan people.<\/p>\n

And there is a new element that has crept into the process. Sri Lankans are used to Commissions and Committees established on Truth and Reconciliation to be uniformly ineffective. <\/p>\n

Even so, there is a singular difference in the current Bill gazetted on 1st January 2024 with certain clauses having potentially dangerous consequences for those protesting against these bodies in good conscience.<\/p>\n

For example, Clause 45 in Sri Lanka\u2019s proposed Truth Commission Bill has significantly expanded powers of contempt normally conferred on Commissions. Thus, if any person resists or obstructs an officer (of the Commission) authorised under the Act or knowingly hinders or obstructs the Commission in the fulfilment or execution of its powers, obligations and duties, the offence of contempt of the Commission is committed.<\/p>\n

Enhanced contempt powers to the proposed Truth Commission<\/strong><\/p>\n

So too if a person, \u2018without reasonable excuse\u2019 fails to comply with any other order of the Commission. The matter is then reported to the Court of Appeal whereupon the case will be tried as if the act of contempt has been committed against the Court itself.<\/p>\n

Relatively innocent by and of itself, the possibility that such powers may be wielded not for the public good is however quite real.<\/p>\n

In past years, a common feature of protests by families of the disappeared from Jaffna to Mannar was \u2018obstructing\u2019 officials and members of state bodies, including the Office of Missing Persons. <\/p>\n

That opposition has come from a deep seated anger that their collective pain has not been recognised by the State. But would this serve as a \u2018reasonable excuse\u2019 for \u2018defying\u2019 an order of the Commission in a particular instance?<\/p>\n

Clause 13 (zd) meanwhile authorizes the Commission to refer matters to the \u2018relevant law enforcement or prosecuting authorities\u2019 for further action and necessary action where it appears to the Commission that an offence punishable under the Penal Code (Cap 19) or any other law has been committed. <\/p>\n

Crucially, this power is subject to Clause 48 which states that no evidence of any statement made or given by any person to or before the Commission shall be admissible against that person in any action, prosecution or any proceedings in any civil or criminal court<\/p>\n

No practical impact in addressing impunity<\/strong><\/p>\n

Thus, this \u2018referral\u2019 is not worth very much. This is precisely the point at which each and every such Commission from the 1990\u2019s onwards have failed to make any discernible impact on impunity. Where the relevant law enforcement or prosecutorial authorities are irredeemably politicised, there is little that a Truth Commission, even with the most laudable of motives, can accomplish.<\/p>\n

Preventing the Commission\u2019s proceedings from having practical impact in emblematic cases of grave human rights violations is very well secured. Clause 16 (1) makes it perfectly clear that the Commission\u2019s recommendation shall not be determinant of civil or criminal liability of any person. That fetter read with Clause 48 puts the seal on the Commission\u2019s \u2018recommendations\u2019 potentially having any more weight than its many predecessors.<\/p>\n

Previous Commissions have also wasted state resources with no useful result bringing justice to victims. In fact, Sri Lanka can learn much in this regard from Nepal which has had far more robust discussions around what transitional justice mechanisms would help victims of a fraught internal conflict between 1996-2006 between state security forces and Maoist rebels. Both countries have similarly failed to bring accountability to the table.<\/p>\n

A serious discussion on concerns of victims<\/strong><\/p>\n

But the difference in Nepal is that the Supreme Court has intervened vigorously in responding to cries of victims. A transitional justice Bill presented to the Parliament in March 2023 was effectively a response to a Supreme Court ruling in 2015 that a 2014 law on \u2018the Commission on Investigation of Disappeared Persons, Truth and Reconciliation\u2019 did not adequately meet requisite standards under Nepal\u2019s Constitution and international norms. The 2023 Bill was an attempt to rectify some of these shortcomings.<\/p>\n

This provides for prosecution of \u2018serious crimes\u2019 including rape, torture or enforced disappearances if committed against unarmed persons and in a \u2018widespread\u2019 or \u2018systematic\u2019 manner. Prosecutions will be by the Attorney General on the recommendation of the Commission and the alleged offenders will be tried in a \u2018Special Court.\u2019 Amnesties can only be recommended through the \u2018informed consent\u2019 of victims which was a specific concern of the Court.<\/p>\n

Regardless, this Bill has also been objected to by Nepali advocates primarily on the basis that it is not clear on accountability in respect of crimes against humanity and war crimes. <\/p>\n

Primarily they raise the concern that, crimes such as torture, rape or enforced disappearances need not be committed in a \u2018systemic\u2019 or \u2018widespread\u2019 manner to be referred for prosecution. Faced by strong opposition, the Government has embarked on a \u2018continuing review\u2019 of the Bill.<\/p>\n

State responsibilities to citizens<\/strong><\/p>\n

The outcome of this process is yet uncertain. Despite these shortcomings, there is a certain seriousness in the exercise that is prominently lacking in Sri Lanka. Here, it will be advisable for the Government not to rest its defence against the \u2018evidence collecting arm\u2019 of the Office of the High Commissioner for Human Rights purely on President Ranil Wickremesinghe\u2019s gleeful articulation that the \u2018West\u2019 is guilty of double standards.<\/p>\n

Of course, the \u2018West\u2019 is guilty of double standards as well as hypocrisy.<\/p>\n

Its complicity in the dehumanization and the wiping out of the people of Gaza by the State of Israel is clear. The ability of the United Nations to put an end to these horrors despite authoritative pronouncements by the International Court of Justice is palpable.<\/p>\n

Even so, this is not a remotely justifiable reason for Sri Lanka to plead bland denial of its own responsibilities and indulge in patently superficial \u2018transitional justice\u2019 exercises.
\nHas this charade not gone on long enough?<\/p>\n

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

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By Kishali Pinto- Jayawardene As familiar wrangling in Geneva takes place over the review of Sri Lanka by the United Nations Human Rights Council, there is an eminently sound argument to be made, (ad nauseam until the point is acknowledged) that the country\u2019s many ineffective bodies on transitional justice established to meet \u2018international scrutiny\u2019 actually …<\/p>\n

Continue reading ‘The West\u2019s Double Standards and Hypocrisy is not a Justifiable reason for Sri Lanka to plead bland denial of its own responsibilities and indulge in patently superficial \u2018transitional justice\u2019 exercises. Has this charade not gone on long enough?’ »<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[12],"tags":[],"_links":{"self":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts\/83793"}],"collection":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=83793"}],"version-history":[{"count":3,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts\/83793\/revisions"}],"predecessor-version":[{"id":83796,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=\/wp\/v2\/posts\/83793\/revisions\/83796"}],"wp:attachment":[{"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=83793"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=83793"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dbsjeyaraj.com\/dbsj\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=83793"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}