Post-war reconciliation: Govt. ponders judicial powers for TRC, special court



ISTRM Chief Dr. Gunawansa, PC, says existing draft can be amended

By Shamindra Ferdinando

Director General of the Interim Secretariat for the Truth and Reconciliation Mechanism (ISTRM), Dr. Asanga Gunawansa, PC, says the draft of the law to establish a Commission for Truth, Unity and Reconciliation in Sri Lanka can be amended to enable the proposed Commission for Truth, Unity and Reconciliation (CTUR) to have prosecutorial and/or judicial powers. Otherwise, a special court could be established to address the need, Dr. Gunawansa told The Island.

The top official said so in response to our query based on President Ranil Wickremesinghe’s recent declaration at the inauguration of the Clinical Training and Research Block at the Faculty of Medicine, University of Jaffna that his government was considering whether the TRC should wield judicial authority or a separate court should be set up based on TRC recommendations.

The President’s Media Division (PMD) quoted Wickremesinghe as having said he had tasked the relevant ministers in consultation with parliamentarians and ambassadors to draft legislation for parliamentary review. The President declared that the decision on prosecutorial and/or judicial powers for CTUR or special court was of paramount importance. Among those present on the occasion were Tamil National Alliance (TNA) lawmakers, M. A. Sumanthiran, PC, and Dharmalingham Siddharthan representing the Illankai Thamil Arasu Kachchi and People’s Liberation of Organization for Tamil Eelam (PLOTE), respectively. Eelam People’s Democratic Party (EPDP) leader Douglas Devananda was also present.

Asked to explain the status of the ongoing deliberations on the issues pertaining to prosecutorial and/or judicial powers for CTUR or establishment of a special court, Dr. Gunawansa said this was a matter that should be decided by the government.

The President’s Counsel said: “As any law to come into operation required the approval of the Parliament, it is eventually up to the Parliament to decide whether the proposed law should have provisions which enabled the CTUR to wield judicial power or for that purpose or the establishment of a special court. If a special court is to be established, then the relevant articles in the Constitution as well as the Judicature Act amongst other relevant laws may have to be carefully considered.”

Dr. Gunawansa added: “The objectives of any system of transitional justice are to provide for a platform for establishing truth, reconciliation, reparation for victims, taking measures for non-recurrence of violence and abuse of human rights and enabling legal action against abusers of human rights and criminal offenders.”

Responding to another query, the ISTRM Chief disclosed that the current draft of the proposed law that has been gazetted did not go as far as establishing a separate court. However, it included provisions which enabled the relevant competent authorities such as the Attorney General and the Police to consider criminal action pursuant to investigations based on information revealed during the truth-seeking process followed by the Commission and on the recommendations made by the Commission, Dr. Gunawansa said.

 However, as the President declared in Jaffna, if pursuant to the consolations and discussions with the relevant stakeholders if it is felt that the proposed commission should have prosecutorial and/or judicial powers or in the alternative, a special court should be established for such purpose, then provisions can be introduced to the current draft of the law before it is presented to the Parliament, the official said.

Pointing out that the current draft of the proposed law had been initially developed over a period of time immensely aided by more than 7000 consultations conducted by the Consultations Task Force on Reconciliation Mechanisms (CTFRM) that was headed by the late Manouri Muttetuwegama. The CTFRM’s final report was presented in Nov 2016.

Since the establishment of the ISTRM in September 2023, under Dr. Gunawansa’s leadership the outfit has carried out approximately 65 consultations with the stakeholders and organized three discussion forums to engage with the interested parties to seek their views on the draft bill and the need for establishing a credible truth-seeking mechanism. ISTRM in line with its overall strategy has given a series of interviews to present the key features of the draft bill to the public.

Commenting on President Wickremesinghe declaration that the issues at hand were complex therefore demanded collective cooperation and engagement from all stakeholders and he discussed this matter with the members of Parliament from the North and the East, Dr. Gunawansa said that establishment of a system of transitional justice focusing inter alia on reconciliation and non-recurrence of violence required consensus amongst all stakeholders.

The armed forces brought the war to a successful conclusion in May 2009.

Dr. Gunawansa said; The ethnic issue and the related violence and civil war like situation that prevailed in the island during the period 1983 to 2009 has several root causes that needs careful consideration and they need to be addressed by implementing measures acceptable to all stakeholders. Even though we feel that there is peace in the island, especially in the north and the East since 2009, there are victims of violence and war from all races and ethnicities of our country spread out all over the island and these victims have continuing grievances which need to be addressed.

 “It is in order to address the aforesaid concerns that the Cabinet under the guidance of the President has decided to present a law to establish a Commission for Truth, Unity and Reconciliation in Sri Lanka, to the Parliament for consideration and approval by the Parliament.  This law is currently ready as a concept paper and has been Gazetted in all three languages to bring it into public domain so that all relevant stakeholders, including victims, civil society organisations, and politicians could examine it, comment on it and make suggestions.”

Referring to President Wickremesinghe reference to economic hardships and the failure on the part of successive governments to allocate required funds for the post-war reconciliation process, Dr. Gunawansa said in spite of difficulties the government established ISTRM to lay the foundation for setting up the CTUR, subject to the proposed law being approved by the Parliament.Dr. Gunawansa appreciated the support extended by President Wickremesinghe, Foreign Minister Ali Sabry, PC, and Justice Minister Dr. Wijeyadasa Rajapakshe, PC.