By Harim Peiris
Recent weeks have witnessed a political debate over the presentation by the government of the enabling legislation for the enactment of the International Convention for the Protection of All Persons from Enforced Disappearances. Much of the criticisms of the proposed Act seems to stem from misinformation and a misconception about what the proposed Act is all about and what it seeks to achieve.
1. This is for the future not the past
The first point which must be noted with regard to the enabling legislation for the protection from enforced disappearances, is that it is for the future and not for the past. There is no intent or provision in the law to make it retroactive, the law will only be valid in the future. The intent of the law is to criminalize and prevent enforced disappearances in Sri Lanka as a peace dividend for our people. Accordingly, the argument that the Bill is targeting war heroes or will lead to legal jeopardy for war heroes just does not apply, since the Act will come into force more than eight years after the war is over.
2. Sri Lanka has a problem with enforced disappearances / extra judicial executions
The sad reality in Sri Lanka is that we have had in the past, a significant problem with enforced disappearances, running into the tens of thousands. The Manori Muttetuwegama Commission of the mid 1990s documented over forty thousand disappearances, mostly Sinhala people and largely from the South, in the context of the second JVP insurrection of 1988/89.
The missing in the North has not yet been documented, but all these past instances occurred during and in the context of an armed threat to and conflict with the State. Currently there is no such conflict, we are nearly a decade after the guns fell silent and we should refrain from living in peace time like we did during the war. This is not just the absence of bombs exploding, but the legal framework as well. A war oriented legal framework does not assist in the transition from a violence and war wracked society to a peaceful and prosperous one. If we don’t have change, there is no peace dividend for our people.
During the period of the conflict, enforced disappearances might have been tolerated by society and perhaps sanctioned or used by the state, or state agents, as a counterterrorism measure. However, today we are not engaged in a war against domestic terror or a civil conflict or insurrection. In the event of any such future, nascent threats, it is best to first try and deal with the problem within the context of the rule of law, both domestic and international, as a society governed by the rule of law, as befits our ancient civilization. We cannot act like a banana republic and expect and demand respect. However, our current laws must meet our current needs and our current context is post-war, and our need is a reconciliation driven, durable peace.
Prior to the advent of the current government in 2015, the white van culture and enforced disappearances devoured democratic political dissenters and media personalities, demonstrating the dangers of post war continuation of a war period ethos.
3. This is a domestic process
There has also been much debate in Sri Lanka about domestic processes and foreign judges. This Bill is not about accountability, it is about non-reoccurrence. This particular piece of proposed legislation meets all the high hurdles that detractors of international involvement have preciously made. Firstly, it is clearly and solely a domestic process, a domestic law with domestic jurisdiction. The much talked of extradition aspects is for enforced disappearance crimes committed elsewhere in the world, in other jurisdictions.
Only Sri Lanka will exercise jurisdiction for alleged crimes committed in Sri Lanka, and will investigate and try such persons in a purely domestic Sri Lankan process. The fear mongering hypothetical examples of our political or military security leadership of the past or indeed the present or future being subject to foreign jurisdiction is palpably false, and is misleading based on misinformation. One aspect of Sri Lanka’s counter to the world against any international involvement in our judicial processes is that our justice system is robust, efficient and a reasonable remedy for wrongs committed. We cannot shirk our domestic responsibilities and concurrently also claim we are taking all domestic measures required to ensure non-reoccurrence of conflict and violence.
Protection of Buddhism could include inculcating Buddhist values
Concurrent with the general debate on constitutional reform has been an animated debate about the foremost place accorded to Buddhism, as provided for in Article Nine of the present constitution. Firstly, why there is any debate on it at all is a mystery, because all Government leaders from the President, the Prime Minister and various other leaders have assured and reassured repeatedly and both publicly and privately, that there will be no arrogation or change of the said Article Nine on Buddhism.
As part of the protection of the Buddha Sassana, it would be worth exploring ways and means of also actually inculcating Buddhist values of compassion and kindness into our society and policy framework. Bhutan for instance, as a Buddhist Kingdom, seeks to measure “gross national happiness” for her citizens to be peaceful and content. In the context of the protection from enforced disappearances, it is worth noting, that the sanctity of life is a fundamental tenant of Buddhist teaching and precept and from it could flow the protection of life, including human life, as a fundamental value and would ensure that Sri Lankans are protected from enforced disappearance and extra judicial executions. The right to life is also a constitutionally enshrined basic right. It was way back in 1978 that Sri Lanka essentially adopted a moratorium on the implementation of the death penalty, the last judicial execution in Sri Lanka being, I believe in 1975, a moratorium, which has essentially lasted for four decades or for a majority of our post-independence history. It is a pity if the Sri Lankan State which, does not implement judicial execution of criminals, was to sanction and tolerate in the post war period, enforced disappearances and extra judicial executions of her citizens.