Tricks Or Treat? Transitional Justice For Postwar Sri Lanka
By Sanja De Silva Jayatilleka –September 20, 2016
Sanja De Silva Jayatilleka
It must surely be thought odd that I am even undertaking an effort to intervene here on a subject that requires comment by lawyers or political scientists. But as a concerned citizen-observer I have some worries and since I have not seen any debate whatsoever in the media, I want to raise some questions and hopefully contribute to an informed public discussion.
When and who decided that what Sri Lanka needed in the post-war period was ‘Transitional Justice’? Where and on what basis did they decide that?
My curiosity about this was aroused after a conversation with an overseas visitor to our home, representing a major UN related agency, who admitted that the concept of Transitional Justice (TJ) derived from a Latin American context, the criteria for its applicability had not been fully developed, and that even at the UN it had been used inappropriately and indiscriminately, and in quite a few cases to little benefit.
My other conversations with staff working for INGOs revealed that the overseas funding was earmarked and plentiful for projects that involved Transitional Justice in Sri Lanka, which does not make for the most conducive atmosphere for awkward questions of local applicability.
It became a serious issue when the UN High Commissioner for Human Rights recommended Transitional Justice mechanisms for Sri Lanka and our Ambassador in Geneva thanked the international community for their assistance with Transitional Justice at the ongoing (September) 33rd session of the UNHRC.
My concern is that, from what I can gather from the literature, Transitional Justice is applied either when military dictatorships or totalitarian regimes are overthrown by people fighting for freedom and democracy or when civil wars draw to a negotiated end after a “hurting stalemate”. In the latter case, the full package of Transitional Justice is not invoked. Transitional Justice seems to apply mainly in times of radical political transformation from a non-democratic or authoritarian political system to a democratic political order, and not merely a more liberal political culture or style of governance.
Examples given in an Oxford University Press book on Transitional Justice leaves no ambiguity as to what exactly this means: “Transition from communist rule in East and Central Europe and the former Soviet Union” and “…repressive military rule in Latin America and Africa.” (‘Transitional Justice’ by Ruti G. Teitel). It also says: “The problem of Transitional Justice arises within the distinctive context of transition- a shift in political orders.” In short, Transitional Justice is relevant to a qualitative or systemic discontinuity; a macro change.
Does a democratically held general election at which the (combined) opposition won a majority and formed a coalition government with a dissident section of the former democratically elected government, qualify? Where’s the shift in “political order”? It is the same essentially democratic multiparty political order, before and after.
There have been multiple changes of style of government and/or political culture at the general elections over the decades. There have been issues of Law and Order under each of those administrations. All those changes took place under essentially the same political order. So it was, most recently as well. There’s a new experiment in governance, a temporary coalition government with a different set of ideas and ideology, but that is hardly a change in political order or a radical political transformation.
Is it a “shift” of the political order in which we found ourselves, after the elected government of the day militarily defeated a terrorist force engaging in warfare to establish a separate state? After its victory, the democratically elected government proceeded to hold elections in the areas formerly under terrorist control and also hold general elections at which it got re-elected under the same political order as before the victory. That government was eventually voted out of office under the same political order, without any preceding rupture in it or dissolution or overthrow of it. So that doesn’t seem to qualify.
