Fault-lines in the Transitional Justice Process

law-courts-2Aaranya Rajasingam.                                                            
Sri Lanka is ranked 43rd (out of 178 countries) in the 2016 annual Fragile States Index, pointing to an improving trend in the country. The country has been moved from the “Alert” category to “High Warning” – a welcome improvement for people recovering from a three-decade long war. How much of this, however, is substantial and sustainable change, is yet to be seen.
It is one of the 78 countries to show improvement and the most improved country in 2015-2016. These uplifting numbers, however, belie the actual changes taking place within the country. As demonstrated by the graphs, group grievances remain largely unchanged and political elites are still old wine in new bottles.
Given that these factors are recognised by many analysts as the main sources of the conflict, it is difficult to begin celebrating immediately. Additionally, the rising brain drain from the country will continue to have significant adverse impacts on the overall growth in Sri Lanka.
In its brief analysis, the Index does acknowledge that though political and economic stability has improved the country’s ratings, “deep schisms within society, remain perilously high.” This schism is especially relevant when observing the ongoing reconciliation process in the country. The new government has been on a fast-track for Transitional Justice. The troubling methodology and the short time frame indicate that there are many reasons to remain cautious while welcoming this process.
At the core of these doubts lies the fact the Government of Sri Lanka has so far not undertaken meaningful steps to outline a coherent policy for Transitional Justice. On the one hand, while Tamil and Muslim minorities remain doubtful regarding any tangible outcomes (given failures of past processes), the Sinhala majority community identifies the process itself as an initiative for Tamils and not a process that affects the whole country. This has serious consequences for the legitimacy of the process. While the Public Representations Committee made commendable efforts to reflect the desires of the Sri Lankan polity within a short time-frame, the subsequent rush to bring out a new constitution indicates that it may not be as inclusive as Sri Lankans would have wanted it to be.
The lack of institutional will is further revealed when critiques of the constitutional process are warned that trying to change structural issues of governance or justice will jeopardise the passing of a constitution of the country. Statements by executives in their refusal to make linkages between transitional justice mechanisms and judicial mechanisms (such as showing linkages between the Office of Missing Persons with criminal proceedings) results in the creation of a false dichotomy between justice and peace. As the Bill for the controversial Office of Missing Persons was being passed, the independent Task Force on Reconciliation Mechanisms was still in the process of getting community feedback on what they thought of the bill. These contradictions are certainly not promising. Furthermore, many submissions to the Task Force had criticised the title that refused to encompass the reality of enforced disappearances or bother to consult families of those disappeared, before it was passed. Such instances continue to alienate those most affected by the war and reveals that perhaps the process itself has become more of a foreign policy tool rather than a significant step towards reconciliation.
According to the IMF and the World Bank, Sri Lanka has recently reached the “middle-income country” status. While this may encourage investment, it cannot hide the challenges the country faces in – on one hand, providing basic services to marginalised communities and regions; and on the other, in curbing corruption and strengthening governance institutions. These are challenges that are not new in any way for the island state. While the end of military conflict provides opportunities, we certainly do not want it to be termed as “missed opportunities” after ten years.
In Sri Lanka, the drive for development, particularly the increase in infrastructure development, at the cost of forming a consensus – on how economic benefits can be equally divided between different groups and communities – is a serious problem. Additionally, Sri Lanka has still not devised a clear long term economic development strategy that takes into account the failed aspects of Western financial models (post the financial crisis in 2008). The FSI states that “weak and failing states” pose a serious challenge to the international community. Perhaps what the FSI fails to mention is that sometimes, standards imposed by the global community and financial instruments can seriously undermine small, developing states. Sri Lankans are at present only more in debt, and government deficits are continuing to increase (as more loans need to be paid back and grace periods end) – a fact that is only too apparent for its citizens in the form of growing taxation in the country.
Other than weaknesses in institutions and the prevalent political culture, another important determinant of struggles of the country is the inability to channel a wide scale grassroots movement for good governance and accountability. A meaningful, open and inclusive conversation between all parties is the first step towards this. In the Transitional Justice and Reconciliation environment, the trend towards consultations has certainly begun to provide space for this shift. More Commissions and Tasks Forces have helped bring stakeholders together to have this critical conversation.
It is now left to be seen whether the people’s voices are heard. (IPCS)

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