A/HRC/34/20
judicial mechanism involving the participation of Commonwealth and other foreign judges,
as called for by the Human Rights Council in resolution 30/1.
23.
While acknowledging the complexity of establishing such a judicial mechanism, the
High Commissioner considers that preparatory work for judicial mechanisms should
already be at an advanced stage. In particular, some of the complementary and supporting
steps in establishing the mechanism could have already been taken, such as incorporating
international crimes into domestic law to allow for their prosecution, and strengthening the
forensic, investigative and prosecutorial capacities in Sri Lanka. It would be useful for the
Government to seek support from experts and other States that have conducted similar
exercises. The Special Rapporteur on truth, justice, reparation and guarantees of nonrecurrence, following his visit in January 2016, called upon Sri Lanka to seek support on
these issues, given that the technical competencies necessary to establish a special
accountability mechanism dedicated to mass crimes, and to ensure that it perform its
functions well – in addition to crucial considerations of impartiality and independence – are
typically not widely available in countries that have not been through the corresponding
judicial procedures, which are not usually a part of the ordinary training of lawyers, but
rather specialized skills that have slowly developed over time.8
B.
Reconciliation
24.
Unlike the limited progress made with regard to transitional justice, some visible
progress has been made in the constitutional reform process, commencing in March 2016,
when Parliament adopted a resolution establishing itself as a constitutional assembly. The
inclusive public consultations on constitutional reform conducted by the Public
Representations Committee in the first quarter of 2016 were followed on 19 November by
the presentation of the reports of six subcommittees appointed by the Constitutional
Assembly to make recommendations in the areas of fundamental rights, the judiciary,
finance, law and order, public service and centre-periphery relations. Also on 19
November, the Steering Committee of the Constitutional Assembly presented its first
interim report to the Constitutional Assembly.
25.
Constitutional reform can play a critical role in addressing systemic deficiencies and
inadequate safeguards, which have facilitated past violations of human rights. In Sri Lanka,
constitutional reform, as a means of establishing (or re-establishing) guarantees of nonrecurrence, could contribute to creating the foundations for the prevention of violations and
abuses of rights. The High Commissioner is encouraged by the manner in which political
dialogue has progressed, and understands that there is a focus on political settlement and
devolution.
26.
Constitutional reform is the appropriate vehicle for addressing other structural issues
that have an impact on the protection of human rights. As pointed out by the High
Commissioner in his oral update to the Human Rights Council in June 2016, a more
comprehensive bill of rights, stronger institutional checks and balances, enhanced
constitutional review of legislation, more effective guarantees for the independence of the
judiciary, effective individual complaints mechanisms and greater direct enforceability of
international human rights treaties are some of the most important elements to be included
in constitutional reform.
8
OHCHR, “Observations of the Special Rapporteur on the conclusion of his second advisory visit to
Sri Lanka (26 January to 1 February 2016)”, press release, 10 February 2016.
7
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