Truth, Reconciliation and Interim Secretariat

Photo courtesy of Kumanan

A recent UN Human Rights Council session raising grave concerns about the situation in Sri Lanka, including a report by High Commissioner for Human Rights Volker Türk, was the focus of a recent article I wrote. Issues mentioned included the government’s much-criticised plans for a Commission for Truth, Unity and Reconciliation and what the Director General of the Interim Secretariat for Truth and Reconciliation Mechanism (ISTRM), Asanga Gunawansa, had reportedly said.

In his view, what I wrote was misleading. His comments are reproduced in full below, so readers can make up their own minds about this and whether, whatever the intentions of individuals, the conditions are in place for a just and effective national mechanism. These would include people with concerns to be able to raise these safely, without fear of reprisals, and, if matters end up in the courts, be confident that their testimony and other relevant evidence will be fairly considered and action to right wrongs enabled. Recent events in the Middle East have also highlighted the question of how easy or difficult it is, in divided societies and amidst powerful emotions, for police, members of the armed forces and others to recognise if laws to protect the vulnerable have been broken and when international help may be needed.

Whatever readers conclude, I would like to thank Asanga Gunawansa for making contact and his willingness to enter into dialogue about what should be done regarding the legacy of past suffering on a massive scale. Some people may believe this is no longer relevant or find the subject too painful to revisit. But until what happened is adequately addressed, wounds will go unhealed and the risks of future violence increased.

Asanga Gunawansa’s response

I have reproduced below the relevant portions of the article published by Groundviews on which I would like to comment:

“The government has been trying to cultivate support internationally by attempting to portray itself in a favourable light despite so much evidence that showed the opposite. In late August Minister of Foreign Affairs Ali Sabry had told diplomats of “several significant achievements across various fronts during the past year, including advancements in economic recovery, legal reforms and the strengthening of domestic institutions and mechanisms focused on reconciliation.” These included “concerted efforts towards the establishment of a Commission for Truth, Unity and Reconciliation,” his ministry reported.

“However this was undermined by the Interim Secretariat for Truth and Reconciliation Director General himself, Asanga Gunawansa, who “declared there was absolutely no basis for concerns that the proposed Commission for Truth, Unity and Reconciliation (CTUR) targeted the war-winning military”. Even if evidence of crime emerged which led to a prosecution, “the starting point for any criminal prosecution in Sri Lanka is the presumption of innocence. Therefore, no one could be punished for a criminal offence unless proven guilty beyond reasonable doubt.”

“On the contrary, “representatives of police and the armed forces, as well as the Defence Ministry, who appeared before ISTRM, expressed the view that a credible domestic reconciliation mechanism could help them clear their names. Dr. Gunawansa quoted them as having said that in the absence of such a credible mechanism they and in some instances their children found it difficult to obtain visas to travel overseas.” This might give the impression of a body more concerned with protecting perpetrators of atrocities by overriding evidence of offences so that they are spared inconvenience when wishing to go abroad than of rigorously seeking truth and easing the suffering of families of victims.”

My clarifications:

1. I have not undermined what Minister Sabry had said. Instead, what I have done is to provide a clarification to a question posed to me by a journalist from The Island newspaper. Part of my response the said journalist is what has been misquoted above in the article published by Groundviews.
2. As you may be aware, there is some opposition to the proposed law to establish a Commission for Truth, Unity and Reconciliation (CTUR) from a few political parties representing the Sri Lankans from the North and the East, civil society organisations, a few Sinhalese politicians such as Mr. Wimal Weerawansa and some members of the Buddhist clergy.
3. One group is opposed to the proposed law on the basis that it has no provisions for prosecuting those responsible for crimes and human rights violations during the Conflict.
4. The other group is opposed to the law on the basis that it would result in “war heroes” being prosecuted.
5. Thus, the two groups are objecting to the proposed law based on two very different understandings. This is the reason for my aforementioned clarification to the journalist from the Island newspaper.
6. In the article published by Groundviews, in fact what I had stated in the Island newspaper has been misquoted. I reproduce below the relevant parts of what I had in fact stated:

      “Dr. Gunawansa emphasized that the Bill was not meant to harm the military. In section 16 of the proposed Bill, it is specifically provided as follows:

      “16. (1) The Commission’s recommendations shall not be deemed to be a determination of civil or criminal liability of any person.”

  Even though Section 16(2) of the Bill provides as follows,

      “16 (2) Notwithstanding anything to the contrary in the Code of Criminal Procedure Act, No. 15 of 1979 or any other law, it shall be lawful for the Attorney-General to institute criminal proceedings in a designated court of law in respect of any offence based on material collected in the course of an investigation or inquiry or both, as the case may be, by the Commission established under this Act”,

    “Pointing out that the Attorney General has the power to investigate and prosecute suspects for crimes,” Dr. Gunawansa explained if evidence emerged regarding perpetration of a crime during investigations and inquiries undertaken by the proposed Commission, then prosecutions would take place based on further investigation into such matters and provided that the Attorney General is satisfied that there were sufficient grounds to issue an indictment.

     “Even if an indictment is issued, the starting point for any criminal prosecution in Sri Lanka is the presumption of innocence. Therefore, no one could be punished for a criminal offence unless proven guilty beyond reasonable doubt.

     “Dr. Gunawansa said that ISTRM conducted a spate of stakeholder meetings during December 2023 to August 2024 period. Representatives of police and the armed forces, as well as the Defence Ministry, who appeared before ISTRM, expressed the view that a credible domestic reconciliation mechanism could help them clear their names. Dr. Gunawansa quoted them as having said that in the absence of such a credible mechanism they and in some instances their children found it difficult to obtain visas to travel overseas.”

 7.  As an experienced and highly respected journalist you would appreciate that nothing of what I have stated above undermines the statement made by the Foreign Minister, nor gives the impression that crimes and/or human rights violations would go unpunished.

 8.  All what I meant to state is that there is absolutely no valid basis for the stance taken by certain politicians that the objective of the proposed law is to punish the Military. Further, what I have stated about having to establish crimes beyond reasonable doubt and presumption of innocence until proven guilty are well established legal principles found in any jurisdiction.

9.  It is pertinent to note that human rights violations and crimes were committed on both sides of the fence during the conflict. If the complaints made before the CTUR (if and when it is established) alleges that:

a. The Military and the Police have committed crimes and violated human rights during the conflict; and

b. Crimes have been committed and human rights have been violated by the LTTE and other militant groups during their attacks on civilians, including attacks on Muslim and Sinhalese border villages, such complaints have to be thoroughly investigated and if offenders are found they have to be punished in accordance with the law of the land. Section 16 of the proposed law provides for this. However, it does not provide for punishment of any person (be it a member of the Military forces or police, or a member of a militant group) based only on the complaints made to the Commission. That is to ensure that offenders are punished after thorough investigation and in accordance with the applicable principles of law. It is also pertinent to note here that a large number of youths who fought during the conflict have been rehabilitated and released. The Commission will have to take this in to consideration when making recommendations.

10.  The statement I made that “Representatives of police and the armed forces, as well as the Defence Ministry, who appeared before ISTRM, expressed the view that a credible domestic reconciliation mechanism could help them clear their names” establishes the fact that they are not opposed to the proposed law. That point was made to clarify that the military is in fact not opposed to the law, although some politicians have been criticizing the proposed law, labelling it as a law to punish the military.