[This article was compiled from a series of statements issued by the Asian Human Rights Commission: AHRC-STM-075-2010; AHRC-STM-072-2010; AHRC-STM-071-2010]
A communiqué from the Presidential Media Unit on 6 May 2010 announced a probe into the violations of internationally accepted norms of conduct during Sri Lanka’s recent conflict, incorporating unfamiliar terms and phrases such as restorative justice, rehabilitation and reconciliation.
For a long period the Sri Lankan government considered burying the past as the best policy to avoid any surfacing of unhealed wounds. Such a view is not sustainable however; at a certain point, it becomes necessary to deal with the past. How boldly such a task will be undertaken, depends of course, on the political will of the country’s leaders and civil society of the time. If the country is blessed with an enlightened political and intellectual leadership it is possible to take far reaching action to address past atrocities and human rights violations.
The BBC Sinhala Service reported of a press conference on May 12 held by the Minister of Media, Keheliya Rambukwella, regarding the possible ‘Commission on Lessons Learnt and Reconciliation’. Questioned as to whether the commission will be similar to the well known Truth and Reconciliation Commission of South Africa, the Minister responded that the South African experience, the bringing of Norway as mediators, and the like are all alien experiences to Sri Lanka. According to him, the government will look to an indigenous approach, something home grown, to address the issue of reconciliation and lessons learned in terms of the country’s recent conflict.
This being the position of the government, it is worth examining the indigenous approaches to truth and reconciliation within the Sri Lankan context. There is overwhelming agreement that all the commissions appointed in Sri Lanka to date have failed to address the serious questions affecting Sri Lanka from recent past conflicts. These commissions have been condemned by international organizations such as Amnesty International, as well as by local human rights groups who have published extensive reports and analysis on the commissions’ workings.
From the mandate, the selection of the commissioners and the work they have carried out, it is not difficult to grasp that these commissions were not meant to engage in any genuine truth seeking, or to address concerned problems of law and morality. They also did not deal with ways to avoid the recurrence of similar incidents in the future.
In fact, all such commissions have been exercises of denial. At the times people were expressing concerns about problems resulting from these conflicts, such as forced disappearances, extrajudicial killings, torture, abuse of power, illegal arrest and detention, these commissions created confusion and doubts about the good faith of the government. Thereby, they diminished the possibility of resolving the hopeless conditions prevalent in the country.
Will the past experiences of evasiveness, denial and hopelessness be repeated by this new commission? To avoid this, we should go back and ask whether any local traditions of truth telling in the midst of conflicts exist. Sri Lanka’s ancient tradition is set on a caste based social structure. Political scientists and sociologists agree that centuries of social organization in Sri Lanka was based on the hierarchical model of caste. Caste does not recognize the equality of human beings and is based on the legal premise of disproportionate punishment for different categories of persons. While any crime against the upper layer is considered the most heinous, any violence to the lower layers of society are not considered crimes at all. Such was the caste doctrine in India, and so was it entrenched in the Sri Lankan psyche. The country has no tradition of truth telling and reconciliation after periods of crises.
Some may argue Buddhism, the official religion of Sri Lanka, has a rich tradition of truth and reconciliation. This is undeniable; it is one of the greatest traditions in terms of seeking truth and reconciliation. However, this is not the living tradition of Sri Lanka in terms of social relationships. The country’s monks themselves are divided into castes, and this tradition remains entrenched in the Sinhala and Tamil communities. In the living reality of Sri Lanka, there has never been a time since the Polonnaruwa period at least, when there was a tradition of truth seeking and reconciliation.
With this background, talking of a commission in indigenous terms is clearly dangerous. The first time this was introduced into the political discussion in Sri Lanka was in the 1972 Constitution, which was called an autochthonous constitution. What was this indigenous, autochthonous constitution? It displaced the supremacy of the parliament and destroyed all that had been built with regards to freedom of expression and the duty of the judiciary to protect the individual from arbitrary actions of the state.
That indigenous tradition was continued in the 1978 Constitution, which created the indigenous dictator. At this time Sri Lanka abandoned the liberal democratic constitutional model altogether. Separation of powers was given up in favor of absolute power of an executive president. After that came the undermining of the judiciary on an unprecedented scale, as well as the undermining of the parliament. These are all well documented and discussed elements of Sri Lanka’s political history, saving the necessity for greater detail at present. The purpose here, is to simply underline the country’s tradition of dictatorship, authoritarianism and the suppression of individual rights.
Sri Lanka’s problem is an indigenous tradition of suppressing people, which is the cause of the violations seen today. The development of this tradition of suppression provoked indigenous rebel movements, which also resorted to barbaric modes of violence. Both the south (JVP rebellions) and the north (Tamil movements) have seen such violence.
Therefore, the Minister’s statement regarding an indigenous commission can only be taken to mean that the commission will be a farce, a repetition of the traditions of denial, suppression of truth and repression of people.
Were this not to be the case, were the commission to follow some of the world’s better practices regarding truth, reconciliation and restorative justice, there are a few key elements that must be focused on.
Witness protection
One of the basic problems that came up before Sri Lanka’s failed Presidential Commission of Inquiry (November 2006-9), set up to investigate into alleged serious violations of human rights by both the LTTE and the state forces, was the issue of witness protection. Many persons were unable to come before the commission because they feared for their lives. Some attempts were made to allow persons to give evidence in camera from the countries to which they had fled. However, the process did not take place with any credibility.
Subsequently, a draft Witness Protection Law was placed before the parliament, largely to appease criticism against the government and the commission; the law was never actually passed.
For this reason, it is essential that before any effective inquiry can be held in Sri Lanka, a genuine witness protection law and programme must be put in place. During the last commission, the few dedicated police officers who attempted to provide some kind of protection to the witnesses faced threats themselves. In the meantime, senior policemen went into hiding like fugitives because they were in line for punishment. If the proposed commission is set up under the same circumstances, it will only create greater threat to the lives of people already suffering the losses of their loved ones. Without a proper protection scheme, they will face enormous risk in coming forward to reveal the truth.
Sri Lanka today is a country where fear is the norm. The suppression of media freedoms and the repression against groups dealing with human rights issues is directed towards the creation and maintenance of such a fear psychosis, which will diminish victims’ capacity of finding support and expressing their grievances. The country’s justice system is paralyzed by this crisis of confidence relating to personal security. What kind of guarantees then will this new commission provide for the security of witnesses? The absence of guarantees will simply bring more danger to people knowing the truth than provide solace to those wanting to engage in the search for truth and justice.
Credibility of commissioners
Another element to be addressed is the members making up the commission. International norms require that the credibility of such commissioners should be above suspicion or doubt. They should have both personal and institutional credibility—proven integrity and institutional security to engage in their work.
The appointment of the Constitutional Council is a useful example of ensuring integrity. On that occasion, the nation engaged in a serious manner to ensure that persons appointed to this highest of posts enjoyed public confidence. To this end, there was representation from all sides of the political spectrum, and glaring publicity.
Therefore, in the case of the new commissioners as well, all political parties should have a say. They should not be selected secretly and announced suddenly by the president or any other source. Their selection must be subjected to scrutiny and public discussion.
Some of the names put forth as possible commissioners do not inspire confidence however. One is a former Attorney General, whose past is connected to the government’s exercise of denial. He has represented the Sri Lankan government before UN commissions with the specific purpose of denying allegations of human rights violations. His role in the inquiries of the killing of Tamil prisoners during the July riots of 1983 also came under serious criticism.
The other proposed names similarly do not inspire much confidence. It is necessary to examine whether they were previously employed to engage in exercises of denial, or whether they in fact have the credentials to deal with justice in a manner required by the norms and standards on which truth and justice is based.
World experience
Perhaps in the situation that Sri Lanka is currently facing, it would be useful to recall attempts by other countries in a similar direction. In the years following the Second World War, the German society was faced with a period of severe psychological and social problems. For many Germans it became a problem to realize they were capable of supporting a terrible dictator as their leader. Many would recall that their own families followed Adolf Hitler with admiration at some point in time. For others, the fact that their own children became soldiers in the Nazi army and were capable of carrying out atrocities towards the Jews, and people of other countries was severely traumatic. The sheer incapacity to deal with these problems led to the thought that it was better to simply forget about such things and to begin a new way of living. However, the past that people are involved in is not something that can be forgotten so easily.
An extremely talented psychologist, Alexander Mitscherlich realized that many people who came to him for treatment were not really suffering from any identifiable illness. After long years of clinical work he realized that their illnesses were a product of their inability to mourn their past. Mitscherlich and his wife Margarete, wrote a famous book which was translated into English under the title ‘Principles of Collective Behaviour—the Inability to Mourn’, based on their experiences of this time. This book, which later became a household item, deals with the enormous need for humans to mourn the social wrongs that people commit collectively, as much as people need to mourn in the face of personal tragedies.
The book’s approach was later developed throughout the world in dealing with similar problems facing societies. Dealing with past wrongs is not just a political matter, but rather a process of social reflection by which society comes to terms with its past. One of the best known examples in this direction is the experience of South Africa. The country’s Truth and Reconciliation Commission was set up after the defeat of apartheid, and in the process of developing new political strategies for a new South African society.
Grave atrocities had been committed by the apartheid regimes, and in retaliation, considerable violence was undertaken by black groups against the whites, with everyone caught up in this cycle of violence. Merely bringing perpetrators to court was not enough to resolve the deep social and political problems faced by the South African society. The truth and reconciliation commission adopted the concept of restorative justice; an attempt to restore the dignity of the people and social relationships that were destroyed by societal violence.
Despite the various controversies surrounding the extent of the commission’s achievements, the concept is recognized as an important component of dealing with such problems. Other countries such as Chile and Argentina have also developed similar methodologies in dealing with their past. The questions relating to Augusto Pinochet and the various trials that evolved against him for the use of his office as President of Chile to authorize atrocities is well known. That was possible only because of public involvement within Chile to address the country’s past violence.
The question is how seriously and in how much depth will all sectors of Sri Lankan society utilize this approach of truth and reconciliation to deal with the problems resulting from its own recent period of atrocities.
