Comment: Liam Clarke: There can be no peace and reconciliation without the truth

 It is hard to believe that the Irish and British governments’ proposals to grant an amnesty to “on-the-run” terrorist suspects are not intended to demean the victims of terrorism and deny them the truth.

The regulations, if passed in their present form, will mean the millions spent on the Bloody Sunday tribunal, the Barron reports into the Dublin and Monaghan bombings, the murder of Seamus Ludlow, the PSNI’s cold-cases review and the welter of forthcoming public inquiries north and south will be poured down the drain.

One of their weaknesses is the absence of a time limit for the amnesty that is being offered. Such a limit, say, six months or a year, would provide an incentive for offenders to come forward and confess their crimes. Those who failed to meet this deadline, if caught, would face the threat of prosecution, conviction and imprisonment.

This is a system that worked well in South Africa, when it introduced the Truth and Reconciliation Commission. Offenders who did not come forward to the commission faced jail. Those who failed to admit all their crimes could be prosecuted for any others uncovered by the commission.

In the case of the Irish and British proposals, the absence of an end date provides offenders with an opportunity to wait and see if they are caught before then playing their “get out of jail free” card.

The second flaw in both governments’ proposals is that offenders face no questioning and need never meet their victims. In South Africa, those seeking an amnesty had to make a full public confession in front of those they had wronged and answer questions put on behalf of the victims.

It’s a toss-up between the two but, if anything, the Irish government’s proposals are more inept, slapping the faces of victims in an even more studied way than the British legislation. Fortunately, like many other attempts by the Irish government to adopt quick-fix solutions, this one is open to a constitutional court challenge. Human rights lawyers such as Greg O’Neill, who represents the families of the Dublin and Monaghan bomb victims, argue that President Mary McAleese’s power to pardon offenders or remit a sentence, as proposed by the Irish government, was never meant to be used in cases where guilt is not in doubt.

If the proposals survive a court challenge, we will be left in a situation where the public is kept in the dark about a series of crimes committed against Irish citizens.

Naturally, the Irish government will reject such charges. Indeed, last week it gave the impression that its own proposals for dealing with on-the-run terrorists were tougher than those being considered by the British. The statement announcing details of the scheme highlighted the fact that anyone involved in the murder of Garda Jerry McCabe was specifically excluded, an astute piece of spin designed to mollify public opinion. The story circulated after the announcement was that only five or six IRA members, most of them robbers, would benefit.

The reality is different. For instance, the loyalists suspected of the Dublin and Monaghan bombings in which 33 people died, as well as the loyalist paramilitaries who killed Seamus Ludlow and Martin Doherty — murdered by the UVF at the Widow Scallan’s pub in Dublin — will be able to take advantage of the provisions.

Only this month Justice Barron published a report into the 1976 murder of Ludlow near Dundalk and named four men as his abductors. Under the Irish proposals, the four need only apply to an eligibility commission to be granted an automatic presidential pardon that may leave them with no criminal record. They will certainly never have to answer questions from the public or their victims.

The same facility will be offered to members of the British forces suspected of collusion in a number of crimes in the republic. If any of them fear arrest, they need only apply to the eligibility body to escape all questioning and all punishment.

The legislation proposed by the British government to cover Northern Ireland is preferable, but only marginally. In some respects, it will lead to a greater injustice because it will apply to far more murders and will deny many more victims the truth that they deserve. While 113 people were killed in the republic during the course of the Troubles, the loss of life in Northern Ireland totalled 3,267, with a further 125 murdered in Britain.

In the north, suspects will apply to an eligibility body and their cases will be heard by a tribunal with the power to find them guilty or innocent. If guilty they will immediately be released on licence, leaving them subject to recall to serve the sentence if they are suspected of further crime. Unlike the Irish proposals, this offers some sanction against future bad behaviour. The rub is that the person applying to this scheme need never appear in front of the tribunal. They need only send a letter and if they want a lawyer to plead their case, they will qualify for full legal aid.

Offenders who send a letter pleading “not guilty” will have a legal team to work on their behalf in their absence. They can subpoena police officers and other witnesses to plead their case, demand discovery of sensitive documents and they will be entitled to full disclosure of any evidence against them, even if it is not made public. They can question victims and witnesses, but need face no questions themselves.

There will be no downside, no cost and no incentive not to waste the court’s time. Even if they are convicted, they will walk free on licence. As a result, it is almost inevitable that prosecuting authorities will often seek to limit the damage of disclosure and the expense of proceeding by offering no evidence and the result will be an acquittal.

The same system will apply to members of the security forces involved in unlawful killings. The smart move for Freddie Scappaticci, suspected of being the British agent within the IRA who was codenamed Stakeknife, is to apply to be considered by the special tribunal, then plead innocent and refuse to put in an appearance. The same will apply to the military intelligence officers who controlled him and the other agents named in the Dail by Pat Rabbitte last month.

These provisions are a mess and they will need drastic reform if they are not to do serious damage to the rights of victims and the integrity of the legal system. The most basic requirements are a time limit on the scheme and an open public tribunal at which the suspected offender is compelled to attend in order to avail of the scheme. A special right of audience, backed by full legal aid, should be given to the victims so that the perpetrators can be cross-examined in detail. Refusal to answer questions should be treated as contempt of court and should carry an automatic prison sentence.

The least we should demand is the truth. It’s not too much to ask in return for government-sanctioned forgiveness for some of the most heinous crimes of the past 35 years.