By P.K.Balachandran/Ceylon Today
Colombo, March 28: At a meeting in Pretoria on Wednesday, the Sri Lankan Minister of Justice Wijedasa Rajapakshe and the Minister of Foreign Affairs Ali Sabry discussed with Rolf Meyer and Ivor Jenkins, the contours of the proposed Truth and Reconciliation Commission (TRC) in Sri Lanka inspired by the South African TRC that functioned between 1995 and 2003.
Sabry tweeted to say that he got “some very insightful inputs,” and added that “a credible and transparent domestic TRC could be the solution to deal with intrusive and agenda-driven attempts.” He was decrying the UNHRC’s attempts to impose on Sri Lanka mechanisms for achieving ethnic reconciliation based on retributive justice dispensed by a judicial process with foreign participation.
This is not the first time that Sri Lanka is trying to set up a TRC. It has been attempted before, but only to be abandoned because Sri Lankan society is too divided to make it work. A TRC would be mooted when there is a temporary need to mollify the international human rights lobby and abandoned after the threat recedes. It was mooted in 2015 and 2022 because of pressure from the UNHRC, but it was not followed up. It is mooted now primarily to please the IMF, but with no intention to actually set it up.
However, on October 16, 2018, a conceptual framework was submitted to the Lankan cabinet. It decided to refer it to the Ministry of Defense. But it went no further. In March 2020, the UNHRC reported that the TRC proposal had not made any progress.
The concept paper had said that the TRC of Sri Lanka (TRCSL) will be established by an Act of Parliament. Justifying this, the concept paper said: “Despite the appointment of numerous ad hoc commissions of inquiry during the past (like the Paranagama Commission, the Lessons Learnt and Reconciliation Commission, the Udalagama Commission, Mahanama Tillekeratne Commission) due to failure to implement recommendations made by those Commissions, it has not been possible to successfully prevent recurrence of conflict, or build confidence amongst all the people of Sri Lanka in the efficacy of measures to ensure non-recurrence, advance national unity and reconciliation or identify and undertake administrative reform interventions that may be necessary.”
The concept paper further said that the proposed Act of Parliament would, inter alia, incorporate statutory provisions to appoint a Monitoring Committee which will “enable all Sri Lankan citizens, irrespective of race or religion, including families of police and security forces personnel, civilians in villages that came under attack by terrorists, security forces personnel and police personnel, and all affected persons in all parts of the country, to submit their grievances suffered during any phase of civil disturbances, political unrest or armed conflict that has occurred in the past, to the proposed TRCSL.”
“The proposed TRCSL should have sufficient administrative and investigative powers, including those granted to Commissions of Inquiry. This includes powers to compel the cooperation of persons, State institutions, and public officers in the course of its work. While the TRCSL will not engage in prosecutions, it should be vested with sufficient investigative powers. But the TRCSL’s recommendations shall not be deemed to be a determination of civil or criminal liability of any person.”
However, nothing was done till March 2023, when, at the invitation of the South African High Commissioner in Sri Lanka, Ministers Wijedasa Rajapakshe and Ali Sabry flew to South Africa to study its TRC.
Impediments
Would the ministerial mission bear fruit? The political and ethnic conditions in Sri Lanka do not appear to be conducive for the setting up of a TRC or for getting a favorable result from it. Lankan society is sharply divided ethnically on what was right and wrong during the 30-year armed conflict. Unlike the majority Sinhala-Buddhists, the minorities, especially the Tamils, are hell-bent on retributive justice, not restorative justice which the TRC in South Africa attempted and the Lankan variant would follow.
One of the major disadvantages in Sri Lanka in comparison with South Africa is the absence of an over-arching and towering national leader to move the masses in any particular direction. From 1995 to 2003, when the TRC was functioning in South Africa, it was overseen by icons like President Nelson Mandela and TRC chairman Bishop Desmond Tutu.
However, even under favorable conditions, the South African TRC (TRCSA) was only a partial success, says Samara Auger, author of Healing the Wounds of a Nation: The Truth and Reconciliation Commission of South Africa.
Key takeaways from Auger’s paper:
The TRCSA collected over 21,298 victim statements. Over 7000 offenders applied for amnesty. Of these 7000, 1167 were granted full amnesty and 145 partial amnesty. The TRCSA released an interim report in 1998 and a final report on March 21, 2003.
The fundamental principle informing the TRCSA’s efforts was encapsulated in the indigenous African concept of Ubuntu. As per Ubuntu, jurisprudence is restorative rather than retributive. Ubuntu says: “I am human only because you are human. If I undermine your humanity, I dehumanize myself. You must do what you can to maintain this great harmony, which is perpetually undermined by resentment, anger, and desire for vengeance.”
In the final report of the TRCSA, Ubuntu is reflected. Justice is defined not as punishment, but as “reparations to victims and rehabilitation to perpetrators.”
The Ubuntu approach rests on the acceptance of the concept that the sufferings undergone were “collective”, that everyone suffered equally, regardless of class, race or religion and that people should seek collective redemption, forsaking revenge in exchange for peaceful alternatives. In the “collective approach” society or the nation is placed above the “individual”. The individual victim is expected to subordinate his victimhood to the larger interest of the society or country in securing peace and reconciliation. This is based on the theory that the needs of society are greater than those of individuals because once society is healed, individuals will be healed too.
However, the Ubuntu was met with resistance from the Blacks who thought that equating them with the Whites was grossly unfair. Another drawback in the collectivistic approach was that society (typically represented by the government) sought closure before the concerned individuals were ready.
Despite its outstanding leaders, South African society was ethnically divided. A survey of 3700 South Africans conducted in 2000 and 2001 found that 68% of all races found it hard to understand one another and 56% found the other race untrustworthy. Less than one-fifth wanted to be friends with members of another race.
But, among the races, more Blacks than Whites accepted that the TRCSA promoted reconciliation. A public opinion poll that asked the question: “Did the TRC promote reconciliation?” found 70% of Blacks, 59% of Asians, and 26% of Whites answering ‘Yes’. Similarly, a 2002 survey done by Jeremy Sarkin-Hughes found 70% Blacks, 61% Asians, and 37% Whites providing moderate to strong approval of the TRC’s work. However, the White-Black gap was cause for concern,
In Sri Lanka, ethnic differences are wide and entrenched. There are sharp differences between what is right and wrong. A TRC under these conditions will only help sustain differences. Additionally, there is no leader to bridge the gulf, even partially.
Alternatives
The more practical alternative would be to take the following non- abrasive steps which had been suggested but not implemented: (1) release those Tamils incarcerated for years without cases being filed against them; (2) punish perpetrators of atrocities who are facing credible charges; (3) release public lands acquired by the Security Forces and prevent encroachments on lands by government departments on specious grounds (4) boost the economies of the war-effected areas North and East and motivate the minority youth to stay in the country and develop it and not flee the country.
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