The draft resolution which is soon to be debated can be looked at within a wider perspective from the point of view of the chaos that resulted from insurgencies and counter-insurgencies in all parts of the country since 1971, and by looking more closely into the reestablishment of order within a framework of the rule of law in Sri Lanka. Petty quarrels and squabbling could be set aside for a moment when all Sri Lankans, as well as the international community have a chance to reflect on the more vital issues of stability in the country in the light of a comprehensive approach for transitional justice proposed by the draft resolution which has given rise to a worldwide debate. While the world’s premier forum on human rights matters, the United Nations Human Rights Council, debates this issue all concerned persons also have the occasion to contribute to the debate.
That the period following the JVP insurgency in 1971 has been a continuous period of internal conflict leading to intense bloodshed and the paralysis of the legal system is beyond controversy. Besides the insurgencies related situation of chaos; there was also a more fundamental factor that contributed to disorder and instability which was the meddling with the constitutional structure of the country by way of the 1972 and 1978 constitutions. Both those factors relating to the down sliding of law and discipline in Sri Lanka has been the subject matter of discussion for many decades.
Thus, the newly proposed resolution provides the scope and opportunity to address this overreaching problem. It is the considered view of the Asian Human Rights Commission (AHRC) which has continuously contributed to the debate on the rule of law and democracy in Sri Lanka that the proposed resolution has the potential to provide scope and opportunity to resolve many of the fundamental problems besetting Sri Lanka. It is on that basis that the AHRC welcomes and fully supports the draft resolution.
The draft resolution proposes a comprehensive approach to transitional justice in Sri Lanka. Going beyond the usual scope of investigations relating to alleged war crimes and alleged crimes against human rights law and international humanitarian law, the draft resolution points out the need for institutional reforms and other measures to be accompanied in order to address the issues of transitional justice. The part of the draft resolution which lengthily narrates the factors leading to the proposed actions requiring the authorization of the Human Rights Council, points to almost all the aspects that are usually discussed in the local debates on the present situation of Sri Lanka and the causes that led to this situation.
The central justification for the actions proposed in terms of an inquiry to be conducted by the United Nations High Commissioner’s office is the failure on the part of the Sri Lankan government to deal with the issues raised through the domestic legal system as directed by the Human Rights Council in its previous resolutions.
The failure of the domestic legal system to deal with the issues raised is no surprise to anyone who is familiar with the extent to which the internal legal system, particularly, the criminal justice system and the constitutional system have failed in Sri Lanka. On this, once again, there is hardly any controversy and almost everyone, including the ordinary folk in Sri Lanka, who constantly discuss the alarming lawlessness in the country agree on this analysis. No reason will be found to consider the basic assessment of the overall situation on which the draft resolution is based to be any exaggeration. As for the AHRC we have categorised the situation that has prevailed in Sri Lanka for several decades as one of an exceptional collapse of the rule of law.
Most recently the debate on the 17th Amendment to the Constitution and the 18thAmendment was on this very issue of the exceptional collapse of the rule of law in the country. The reason why the Sri Lankan parliament passed the 17th Amendment almost unanimously was the acknowledgement by all the political parties of Sri Lanka including the political parties which constitute the present ruling regime was that they were all completely in agreement on this matter. Unfortunately even the limited attempts proposed by the 17th Amendment to deal with the situation were abandoned by the adoption of the 18th Amendment. The result of the 18th Amendment was that from the point of view of law based stability people had to face the situation where they had to “abandon hope all ye who enter here”. The average citizen encounters this hopelessness on all occasions when they find that they become victims of the abuse of power and victims of the improper use of force and violence.
The improper use of force and violence in Sri Lanka directly by the state and the failure of the state to protect the citizens from the abuse of the force and violence of others is perhaps the most commonly told complaint within the country. What aggravates the situation is that the government does not agree that the use of enforced disappearances and extrajudicial killings and the threats thereof, routine use of torture and ill-treatment, the misuse of the powers of arrest and illegal detention including the improper resort to the use of detention orders to harass citizens, the most unscrupulous forms in which charges are fabricated by the law enforcement authorities with the connivance of the Attorney General’s Department which blindly follows the orders from above, the virtual impossibility to obtain a fair trial on politically motivated cases and the virtual paralysis of the legal system to deal with ordinary crimes including those affecting women such as rape and sexual abuse needs to be addressed. The abuse of the anti-terrorism laws has also come in for serious criticism. The obvious aggravating factor is the visible undermining of judicial independence.
Thus, the Sri Lankan’s are faced with the situation of having to accept one of the following alternatives. That is either living without the protection of law or believing that there must be some means to deal with the situation forthwith. It is this second alternative that has become available through the medium of the proposed resolution. If the resolution is passed and if the United Nations, with the help of the international community and the people of Sri Lanka pursue the resolution firmly an unprecedented possibility of overcoming the deadlock that Sri Lankans face will arise. What makes that possibility greater is that the resources of the international community as well as local resources could be harnessed.
The most significant opportunity has now come before the Sri Lankans to resolve the most fundamental problems they face is now within reach. To lose this opportunity is to continue to live within that same hopeless situation which can only become worse.
The Asian Human Rights Commission is hopeful that some of the most complex problems arising from the absence of the rule of law can be addressed. In that sense the draft resolution presents a moment of destiny.
