Sri Lanka’s Problematic Past with Commissions of Inquiry: Are We Repeating Mistakes?

On March 21, 2018 the United Nations High Commissioner for Human Rights will provide an oral update to the United Nations Human Rights Council (UNHRC) on the human rights situation in Sri Lanka and the status on the commitments contained in UNHRC Resolution 30/1 which was adopted in October 2015 and extended by Resolution 34/1 in March 2017. While some progress has been made on these commitments, including the recent operationalisation of the OMP; the enactment of domestic legislation criminalising enforced disappearances; and some limited land releases, many commitments are yet to be fully implemented or even initiated including many on accountability.

The update comes at a time when there are considerable security issues on the ground following the recent spate of violence targeting the Muslim community. The violence in parts of Kandy District and other areas of Sri Lanka is yet another reminder of the inability of the government to control mobs inciting racial and religious hatred and violence targeting the Muslim community. Unfortunately, these are not isolated incidents but part of a pattern witnessed in recent years where numerical minorities have come under attack from mobs galvanised by the rhetoric of Sinhala Buddhist nationalism. This movement has become stronger in the absence of genuine measures to hold such perpetrators accountable by both the previous government and the current one.

In this context, several in this government are reported to have called for the appointment of a Presidential Commission of Inquiry (CoI) to investigate into the recent violence in Kandy and with unexpected efficiency, President Maithripala Sirisena announced that he will appoint a three member CoI soon. One must wonder at the efficiency of such responses by the government when even recognising and condemning the violence in Kandy took much longer. Apart from the delays, inability and inertia to effectively respond to the violence in the hours and days of the violence occurring, one really wonders whether those calling for and endorsing yet another CoI are even aware of the long list of CoIs appointed by successive governments; the significant amount of time and resources spent on them; and the little to no action successive governments have taken on the recommendations made by such CoIs.

Legacy of Past CoIs

The Lessons Learnt and Reconciliation Commission (LLRC), the Paranagama CoI and other such CoIs also had the natural consequence of raising the expectations of victims. With no real action or follow up, however, the inevitable result was disappointment and anger among victims, over and over again. None who engaged with the LLRC or other commissions saw justice served for past abuses. Similarly, many who went before the Paranagama CoI are yet to receive answers on their disappeared loved ones. Many victims who engaged with the LLRC and Paranagama CoI in their sittings in the North travelled long distances, giving up their daily livelihoods to be heard often only for a few minutes. Many also faced significant language barriers while communicating their experiences, with the more recent CoIs being ill-equipped to provide adequate translation facilities, particularly in Tamil. Some faced threats and surveillance by security forces, before, during and after engaging with these CoIs. Some were robbed of their dignity, with probing and insensitive questions by some commissioners and those assisting the CoIs; state actors repeatedly appeared to be unaware of or unconcerned about the trauma caused to victims who have either witnessed or experienced horrific violence. But the desperation of searching for answers and justice is such that victims will engage again and again, despite empty promises.

These worrying practices are likely to be evidenced again if the present proposal to appoint yet another CoI is carried through. This is particularly because the victims are of an ethno-religious minority with good reason to be distrustful of state institutions, particularly in the immediate aftermath of violence the state was complicit to varying degrees in. Sadly, Sri Lanka’s legacy of numerous commissions is not a positive one for victims or for justice. Why then is there such enthusiasm to pursue a protracted process which is most likely to re-traumatise victims, and produce voluminous reports unlikely to be read by anyone and soon be forgotten? Critically, such a CoI, like previous ones, is unlikely to lead to any indictments or prosecutions, further contributing to Sri Lanka’s endemic culture of impunity.

Addressing Impunity

The current government inherited this culture of impunity but despite the ambitious promises made in 2015 including ones to address accountability, much is yet to be realised. The 2015 agenda included the promise to tackle corruption and bring to book perpetrators. Yet many alleged perpetrators are still free, the few arrested given bail with numerous other cases delayed. Since taking office, there is no known prosecution by this government that has led to a conviction on the grounds of inciting religious and racial hatred. In the absence of genuine action holding perpetrators to account, the numbers of cases where there is incitement of religious and racial hatred has increased under the watch of this government. So have calls by concerned citizens for the Police, the Attorney General’s Department and others mandated to arrest and prosecute perpetrators and prevent the spread of violence to act within the powers provided by law.

All this is despite sufficient laws such as the Police Ordinance, Penal Code and ICCPR Act being in place and evidence easily available. Those enthusiastically advocating for the repeat of yet another CoI are best advised to channel their untapped energy to ensuring that those mandated by law to do their jobs actually deliver and not waste taxpayer money on yet another long drawn out investigation that may face the same fate as the many others before it.

Maithri_Mahinda_Monkey 2The Need for Leadership and Reform

Lest this government has chronic memory loss, we as citizens must keep reminding them of the reform agenda of 2015. The mandate of this government is for a change of political culture, for a clean government and good governance, to end nepotism and for accountability. The overwhelming support from minorities was for a political solution to the ethnic question and for accountability for past violence. Neither has seen significant progress, with prospects for both the constitutional reform process and transitional justice process fast diminishing. As evidenced by the recent spate of violence, there is increased scepticism that this government is able to prevent the further spread of violence and provide safety to minorities.

Nearly two weeks after some of the most damning violence in post-war Sri Lanka, many citizens look to strong and decisive leadership for safety, stability and non-recurrence. The government now has an opportunity to prove their critics wrong by showing leadership, taking a zero tolerance position towards such violence and taking swift action to hold perpetrators to account and to prevent recurrence. Arrests alone are insufficient; the authorities must prosecute and convict those responsible within the present law.

The Sri Lankan government delegation is likely to list out their achievements at the UNHRC this week and promise to follow through with the remaining commitments. This is mere rhetoric in a country where minorities continue to live in fear and where most perpetrators are yet to be prosecuted for serious human rights violations. The onus is on the government to deliver fully on its promises, not find excuses to subvert justice with proposals such as the present one to appoint yet another toothless CoI. Failure at this critical juncture will cement the fate of this government and miss a crucial opportunity to reckon with Sri Lanka’s past.

Editor’s Note: Also read, “The politics of organised violence against the Muslim community” and “The latest Commission of Inquiry in Sri Lanka: Another exercise in deception“.