Photo courtesy of Kumanan
The last few weeks have seen increased media coverage in a relation to a government proposal to establish a Truth and Reconciliation Commission (TRC) for Sri Lanka. At face value, this seems a bold move by the government to address long-standing issues that continue to directly impact the lives of citizens in different parts of the country. Across July we saw at least four different statements by civil society organizations and activists primarily based in the North and East on this proposed mechanism. All four raise serious questions about the purpose of this new mechanism and the participation of victims in its design. While two explicitly rejected the proposal, the other two statements expressed serious skepticism and asked for proof of political commitment through implementing key confidence building measures.
For anyone who has joined the discussions on post-war transitional justice yesterday these statements may seem presumptuous as the draft bill has not yet been made public. These statements are not a repudiation of the need to deal with the past, but a challenge to the government’s approach. These statements also confront the state with its past efforts and failings in dealing with the island’s post-war legacy. It is impossible to deal with the past in Sri Lanka without confronting the legacy of past commissions. In an article I wrote last year I addressed the question what purpose a TRC would serve. Here I reflect on the problematic legacy of successive state commissions established by the Sri Lankan state to inquire into issues of human rights and conflict.
TRCs have become a popular tool for countries emerging from conflict and authoritarian rule to grapple with complex histories to give recognition to victims’ suffering and the wrongs committed against them; to acknowledge marginalized histories, patterns of brutal violence and other forms of injustice and state responsibility; and to provide recommendations to further the pursuit of justice, reparations and institutional reform. TRCs can play a crucial role in the transition of political societies to a more stable and fairer country, and better ensure opportunities for peace and development. As a model, the TRC has become a central element of the transitional justice tool kit, which has gained increased international acceptance and emerged as a norm.
A significant body of literature has emerged mapping these different efforts, assessing their strengths and limitations, and questioning the foundational assumptions, mandates and wider impact. A principal lesson from this literature is the importance of engaging with the specificity of each context, rather than adopt the TRC as a cookie-cutter model. Dealing with the past usually involves examining specific aspects of a country’s past, most often large scale violence and conflict, the root causes and consequences. The legacy of commissions in Sri Lanka, however, presents an added complicating layer to our past.
Sri Lanka has a commission addiction. Both during and after large scale conflicts, governments appointed a succession of commissions, largely temporary commissions of inquiry (COIs), mandated to inquire into both specific human rights cases and the widespread phenomena of large scale violence and violations. Since the 1990s at least ten different commissions were established by the state to address the war and the JVP insurrection 1988-1990. Many of these commissions, some of which exhibited functions of a TRC, had mandates to examine specific patterns of violence and abuses, conducted public sittings and compiled reports (most often not made public immediately) with broad sets of recommendations.
Specific commissions offered searing testimonies of how victims suffered, chastised the state for its failings and transgressions, and set out critical reforms to be undertaken. In a country where the authorities sought to publicly deny and aggressively reject claims of human rights violations, these reports provided vital counter narratives to acknowledge victims’ claims and their suffering and to highlight key reforms.
But the succession of commissions has also compounded problems with and within the state. Commentaries by local civil society institutions, especially Kishali Pinto Jayawardena’s A Legacy to Remember: Sri Lanka’s Commissions of Inquiry, drew attention to the problematic legacy of unimplemented recommendations. Given that these temporary commissions were themselves created to address a systemic problem where state institutions mandated to record complaints, conduct investigations and undertake prosecutions were unable or even unwilling to function, the marginalization of these commissions aggravated a pre-existing problem of impunity. As noted in Jayawardena’s Preface “Presidential commissions of inquiry have become part of the impunity apparatus, an expedient mechanism, to divert unwanted attention by providing a veneer of accountability.”
Despite a growing norm that truth seeking mechanisms are not an alternative to justice, there are fears that they are being used as such as states seeking to avoid any accountability for past violations. Commissions as non-judicial bodies can serve as a foil for justice rather than strengthening the rule of law and accountability. Responding to news about yet another COI, the report of the UN High Commissioner for Human Rights on Sri Lanka noted in January 2021 “numerous commissions of inquiry appointed by successive governments failed to credibly establish truth and ensure accountability.” Thus the proposed TRC can end up adding another layer to the culture of impunity. Furthermore, there are concerns that the establishment of the TRC will serve as an excuse to avoid implementing the justice mechanism proposed under UN HRC Resolution 30/1. The exhaustion and trauma of commissions
The statements by groups in the North and East highlight long standing demands and complaints made by affected persons, victims’ groups and civil society repeatedly over the years. In 2016 the yahapalanaya government appointed the Consultation Task Force for Reconciliation Mechanisms (CTF) to ascertain the public’s views and recommendations on transitional justice. As victims spoke of the violations they suffered, they also detailed how they had been treated in their efforts to seek redress and their experiences of past commissions.
Some victims spoke of how some state officials had refused to note their complaints down, others had demanded bribes while some were even harassed or threatened for trying to complain and advocate on behalf of victims. Even after these experiences some families appeared before temporary commissions in the hope that the State would listen to them and respond. Some victims listed out to the CTF the different commissions that they had approached; an elderly man from Killinochchi referenced the successive submissions he had made from the Sansoni Commission in 1977 to the Lessons Learned Reconciliation Commission in 2009, and asked what impact they had.
An overwhelming and repeated response from those who came before the CTF was their expression of exhaustion of dealing with multiple state agencies for redress, the CTF included. As noted by the CTF “People throughout the country expressed considerable frustration, bitterness and anger at yet another initiative, despite the inconclusive nature and abysmal failure of past efforts to provide any relief or redress.” In the case of many families of the missing and disappeared, there were added emotions of desperation and urgency as they wanted answers as to the fate of their loved one.
For anyone canvassing the cause of the TRC it is important to first reflect on what exactly we are asking from victims. The families face the unenviable and grueling task of proving, yet again, that they have indeed been victimized before detailing their experience, its consequences and what they want done. In calling them to come and make submissions, the TRC risks causing distress or even re-traumatizing victims. Two of the recent statements from activists and victims from the North and East have drawn attention to their experiences of dealing with past commissions and the emotional distress that it could cause for victims called on to make submissions.
The CTF final report, particularly its chapter on the TRC, offers a series of practical recommendations (in addition to highlighting a range of views on how a TRC should be designed and whether it is required at all) on ensuring that those coming forward are treated with respect and dignity, including to offer psychosocial support and officers who can speak in their language of choice and are gender sensitive. Yet, there is something more fundamental at stake: the sheer unfairness of asking victims to perform on demand.
Deliberately forgotten commission recommendations and records
Even as the government will try to make the case to the public that the TRC is a new institution, so needs to be given a fair chance, it needs to recognize that the commission cannot be divorced from the past. The TRC will be the latest manifestation in a series of commissions that have largely failed the many thousands of victims in their efforts to find truth, justice and fair reparations. As such, a question it will face from victims is “What is being done with the work of past commissions?”
This is not just a question for the commissioners of the TRC but also those drafting the legislation. Some victims and activists who came before the CTF asked the question “Why can’t the state compile the records of previous commissions, conduct investigations and then approach victims with specific questions as follow up?”. This triggers a logical next question “Is the proposed TRC designed to compile existing records within the state as a starting point for its work, if not why not?”.
The statement from groups in Batticaloa draws specific attention to the records of human rights violations, from both COIs and other state mechanisms and the need to grant victims access. Another demand made by victims’ groups, including before the CTF, was for the state to commence inquiries through reviewing previous complaints. This is a challenging task that needs to be undertaken by the state in order to avoid calling victims to submit yet another round of complaints as this has been done by victims several times to multiple permanent and temporary state institutions. This requires the state to engage in a comprehensive process of compilation, which requires careful consideration of issues such as the security of victims and witnesses who gave testimonies, the protection and integrity of the physical records, and importance of archival standards in the process.
A simple reading of the history of past commissions demonstrates state failure to comprehensively review and implement the vast volume of recommendations. So why would we as a country willfully repeat this history and ignore the past? If the Sri Lankan state is serious about a TRC, it needs to take a long, hard look at itself. If it wants to convince the public, a simple straightforward measure would be to set out a process for reviewing and implementing recommendations. This demand has also been reiterated in two of the recent statements.
This task shouldn’t take too long as the state already established yet another commission to execute this exact task. In January 2021, a new three member COI, headed by former Supreme Court Justice Nawaz, was created by the previous government to examine the findings of previous domestic inquiries. It has already presented “a synopsis of recommendations of the draft final report” to the current government (neither the synopsis nor the final report have yet been made public). So does the government find these recommendations lacking and is that why yet another commission is being created to submit more recommendations?
Building trust through actions, not commissions
If the government is serious about establishing a credible mechanism it needs to confront this legacy of commissions. If it ignores the cumulative experiences of victims in dealing with the state, it risks setting up the latest version of state impunity disguised as reconciliation rather than take steps towards rebuilding public, especially victims’ trust, which itself would be an important stride towards achieving peace.
July marked 40 years since the pogrom of 1983 against Tamils. The government chose to be largely silent and the only notable move was its attempts to crack down on those attempting to commemorate this horrific event in Colombo. The government’s failure to confront its past and express remorse about the past while restricting space for public acknowledgement and memorialization has only served to undermine the public’s, and especially the victims’, trust in a truth telling mechanism.
Setting up a mechanism is relatively easy; what is difficult to implement required measures to address the past. The government will need to go beyond its knee jerk reaction of announcing a high level committee to review implementation. Unless the government confronts the record thus far of the Sri Lankan state in how it has chosen to deal with the past and failed to do so, we will not find a meaningful and practical way forward.
Mirak Raheem served as a Commissioner with the Office on Missing Persons (2018-2021) and as a member of the Consultation Task Force on Reconciliation Mechanisms (2015)North East Coordinating Committee, ‘Sri Lanka’s Proposed National Unity and Reconciliation Commission Amidst the State Sponsored Oppression in Northern and Eastern Provinces,’ 20 July 2023; (Six civil society institutions), On the Inadequacy of a ‘Truth and Reconciliation Mechanism to Achieve Post-War Transitional Justice,’ 17 July 2023; Batticaloa Peace Committee, Batticaloa Justice Walkers and Family Members of the Disappeared, ‘Statement on the proposal to establish a Truth and Reconciliation Commission by the Sri Lankan government with the support of the International Community,’ 18 July 2023; (Sixteen civil society institutions), ‘Statement by Civil Society on Proposed Truth-Telling Mechanism,’ July 2023.
 Kishali Pinto-Jayawarena, A Legacy to Remember: Sri Lanka’s Commissions of Inquiry 1963-2002, A Reference Guide to Commission Reports with a Tabulated List of Recommendations, The Law & Society Trust, 2010, p. xvi.
Final Report of the Consultation Task Force on Reconciliation Mechanisms, November 2016, p. ix.