Reconciliation move: potentials and liabilities

Former President Chandrika Kumaratunga

The dust may yet to settle on the second anniversary of the National Unity government. The ruling United National Party (UNP) and the mainstream faction of the Sri Lanka Freedom Party (SLFP) held a sombre ceremony to mark the event where President Maithripala Sirisena categorically stated that, despite the challenges it faced and the occasional critical comment from within the government itself, it would survive until 2020, when the next national elections are due.

The main challenge to the government comes from the Joint Opposition (JO) faction of the SLFP. Its de facto leader, former President Mahinda Rajapaksa, has already declared that 2017 will be the year in which the government will be toppled. He has also stated that he is willing to serve as Prime Minister under President Sirisena.

That is, in effect, an admission of defeat of sorts for the JO. This is because it is also an acknowledgment that, without a general or presidential election until 2020 and the Constitution now preventing a premature dissolution of Parliament, there is no way for the JO to regain power unless it demonstrates a working majority in Parliament.

Even if the JO achieves this nearly improbable target, President Maithripala Sirisena is already on record saying that he will never appoint Rajapaksa as his Prime Minister. In fact, in the lead up to the 2015 general election, he made an address to the nation to convey exactly these sentiments to the country!

Ethnic question

Nevertheless, challenges to the smooth functioning of the government remain. Although swept off the headlines now, chief among them is the resolution of the ethnic question.

There are two critical components in resolving this issue: the degree of devolution of power granted to the regions and the inquiry into alleged war time atrocities during the final phases of the Eelam war. The latter had been a constant irritant for the Rajapaksa regime, which had the United Nations Human Rights Council (UNHRC) passing successive resolutions against it in Geneva.

In trying to address the issue of accountability for alleged war time atrocities, Prime Minister Ranil Wickremesinghe appointed a Consultation Task Force on Reconciliation Mechanisms (CTF).

The Task Force consisted of eminent persons of many ideological persuasions and was chaired by Attorney at Law Manouri Muttetuwegama, the widow of late Sarath Muttetuwegama, the stalwart Communist party parliamentarian who once played a lone hand in Parliament against the steamrolling J R Jayewardene government.

Others in the Task Force were Dr. Paikiasothy Saravanamuttu (Director, Centre for Policy Alternatives), Gamini Viyangoda (columnist and social commentator), Visaka Dharmadasa (Founder of the Association of War Affected Women and Parents of Servicemen), Shantha Abhimanasingham (President of the Jaffna Bar Association), Sitralega Maunaguru (a retired professor from the Eastern University), K W Janaranjana (Attorney at Law and journalist), Daya Somasundaram (Senior Professor of Psychiatry at the Faculty of Medicine, University of Jaffna and a Consultant Psychiatrist), Dr. Farzana Haniffa (an anthropologist and Senior Lecturer in Sociology at the University of Colombo), Prof Gameela Samarasinghe (a Clinical Psychologist and an Associate Professor in the Department of Sociology, University of Colombo) and Mirak Raheem (a researcher and a human rights activist). Their credentials speak for themselves.

What created controversy was their final report. The report was presented last week to former President Chandrika Kumaratunga. This was in her capacity as the Chairperson of the Office for National Unity and Reconciliation (ONUR).

The most disputed recommendation of the Task Force was that there should be a majority of national judges and at least one international judge on every bench to try war crimes and serious violations of human rights that allegedly occurred in Sri Lanka.

It will be recalled that the issue of appointing international judges to any war crimes probe has always been a bone of contention. The international community and the UNHRC have always called for this. Conversely, the Sri Lankan government has consistently defended its right to make its own decisions in this regard. It has also been pointed out that the appointment of international judges could be potentially violating the Constitution.

Domestic mechanisms

The report of the CTF said that consultations in the North and East in particular, as well as in some areas in the rest of the country, revealed the overwhelming lack of trust in the State, its institutions and mechanisms. The belief was strongly expressed that exclusively domestic mechanisms would not be credible.

At the same time, consultations outside of the North and East and with the armed forces, revealed strong opposition to international participation in any inquiry. Many however did recognise that given the limitations of existing capabilities in specialised areas, international expertise should be engaged, the CTF noted.

The CTF recommended that changes be made to Sri Lankan law to facilitate an inquiry into war crimes. “International crimes such as war crimes and crimes against humanity must be criminalised and incorporated into Sri Lankan law immediately through legislation,” it proposed. Recommending the creation of a special court to hear such allegations, it suggested that this court “shall ensure that there will be a majority of national judges and at least one international judge on every bench”.

Reactions to these recommendations have been swift and surprisingly have come more from the government itself than from the ranks of the Opposition which will predictably condemn them. President Maithripala Sirisena is yet to publicly react to the findings of the CTF. However, addressing a hurriedly called press conference at the President’s House, State Minister of Finance Lakshman Yapa Abeywardena said he was clarifying the President’s stance on the issue.

President Sirisena’s position was very clear on this matter and he has more than once said there will be no foreign judges in the local judicial mechanism and it will not be a hybrid court as suggested by certain groups, Abeywardena explained.

The Minister said that only logistical assistance would be obtained to expedite the judicial process, when the judicial mechanism was set up to probe the alleged crimes. He also noted that Sri Lanka’s Constitution or the Criminal Procedure Code do not provide for the establishment of a judicial mechanism with foreign judges to adjudicate alleged war crimes.

Also expressing his dismay at the CTF report was Justice Minister Wijeyadasa Rajapakshe. The minister said he had no confidence in the CTF. “No one is complaining about the independence of the judiciary anymore. We have reconciliation and peace processes in place. This report, at this juncture, is totally unwarranted. Therefore, we don’t have to follow these recommendations by the CTF,” the Minister said. Having foreign judges in local tribunals is also a violation of the Constitution, he noted.

CTF’s recommendations

In comments at a public event on Tuesday, Kumaratunga acknowledged that the CTF’s recommendations had been rejected by some in the government but argued that they need discussion. “We are not opposed to them. We are not under obligation to implement all of them,” Kumaratunga observed, stating that “the government will have to decide on this”.

In the weeks and months to come, this is likely to become an even more controversial issue. The CTF was appointed under the auspices of the government by the Prime Minister. It has now emerged with a set of recommendations that may have unfavourable consequences for the government: if the government upholds them, the opposition will quite gleefully raise alarm, claiming that the government is betraying ‘war heroes’.

On the other hand, if the government chooses to ignore the recommendations of its own Task Force, it risks censure from the international community and the UNHRC at a time when a lot of hard work has gone into repairing Sri Lanka’s image and credibility on the world stage.

Perhaps more importantly, the country must still come up with a mechanism of inquiry into the alleged war crimes that would satisfy all stakeholders: the aggrieved parties, the armed forces, the Sri Lankan voter as well as the international community and the UNHRC. It is no easy task. The government will need to handle this issue which extends beyond party lines, extremely carefully. Potentially, it could also be a familiar theme heard during the campaign for the Local Government elections, the next poll that the country will face. Interesting times lie ahead.


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