By Austin Fernando –

Just after the Commonwealth Heads of Governments Meeting (CHOGM), South African President Jacob Zuma had proposed a Truth and Reconciliation Commission (TRC) for Sri Lanka. He was to discuss it with the Tamil National Alliance (TNA). Though there had been several Truth Commissions globally, the South African TRC is the best mind-booster when post-conflict justice and reconciliation are considered.

Already there are some who project the Government of Sri Lanka (GOSL) grabbing this proposal in good faith. Another presents GOSL’s ulterior motives as one way out of the United Nations Human Rights Council (UNHRC) quagmire in March 2014.

Motivation for TRC

Mentioning of TRC before the Lessons Learnt and Reconciliation Commission (LLRC), I quoted the preamble of the South African Act No. 34 of 1995 Promotion of National Unity and Reconciliation. It read as:

“To provide for the investigation and the establishment of as complete a picture as possible of the nature, committed during the period from March 1, 1960 to the cutoff date contemplated in the Constitution, within or outside the Republic, emanating from the conflicts of the past, and the fate or whereabouts of the victims of such violations; the granting of amnesty to persons who will make full disclosure of all the relevant facts relating to acts associated with the political objective committed in the course of the conflict of the past during the said period; affording victims an opportunity to relate the violations they suffered; the taking of measures aimed at the granting of reparation to, and the rehabilitation and the restoration of the human and the civil dignity of victims of violation of human rights; reporting to the nation about such violations and victims; the making of recommendations aimed at the prevention of the Commission of gross violations of human rights; and for the said purposes to provide for the establishment of a Truth and Reconciliation Commission, a Committee on Human Rights Violations, a Committee on Amnesty and a Committee on Reparation and Rehabilitation; and to confer certain powers on assigned certain functions to and impose certain duties upon that Commission and those Committees; and to provide for matters connected therewith.”

TRC objectives in Sri Lankan context

preamble guides us on how it would fit with reconciliatory demands made from Sri Lanka. If listed, a Sri Lankan TRC would observe:
“Causes and extent of gross violations of human rights,” which have been partially addressed by the LLRC.

The creation of a complete picture on nature, causes and extent of gross violations of human rights committed during a specified period. This “period” runs from 1960 to ’90s for South Africa. The demand from Sri Lanka is for final weeks before May 19, 2009. GOSL spokespersons expand the “period” to mid-seventies and after, also including LTTE’s atrocities. Darusman and LLRC Reports have addressed the “picture”.

TRC’s inquiry arena is unlimited, i.e. “within or outside the Republic”. The predominant demand from GOSL is limited to final battle ground, causing GOSL spokespersons querying on Diaspora activities.

Query on “the fate or whereabouts of the victims” equates the “disappeared” / “missing” mostly raised by internationals, Diaspora, TNA and Tamilnadu. GOSL without bearing accountability, question LTTE atrocities and has arranged for a census on these victims and a Torture Commission.

If granting amnesty to persons on the basis of the above preamble is to be achieved, it will definitely require psychological overhauling to match restorative justice. It is because many Tamils (e.g. demanding inquiry on “Mullavaikkal/Nandikadaal massacres”) and Sinhalese (e.g. reminding “Kebithigollewa, Aranthalawa massacres”) prefer demanding punitive justice. This psychological and attitudinal status is negative for a successful TRC.

May be that “affording victims an opportunity to relate the violations” have worked in South Africa. But will it be applicable here? Will ‘Karmic’ beliefs influence against such thinking? Will such be rekindling violence?

In my LLRC evidence, to elucidate measures to grant reparation and normalization I proposed the use of Pineheiro Principles and distributed summary copies of these principles among LLRC Commissioners. Though the LLRC’s Chairman appreciated it as of “immense value to the Commission in formulating” recommendations, the Pineheiro Principles are never mentioned in the LLRC Report!

Had it been incorporated it might have motivated the GOSL to adhere and the affected/their representatives would have refrained from clamouring for the impossible, because these were UN endorsed methodologies.

South African reconciliation exercise was reinforced with the appointment of Committees on Human Rights Violations, Amnesty and Reparation and Rehabilitation along with the TRC, conferring certain powers on assigned functions and imposing certain duties upon that Commission and those Committees. In Sri Lanka the LLRC Report has covered some such areas, but the UNHRC processes are demanding much more on less focused issues.

Hence, President Zuma’s proposition though appropriate has to be taken with caution. It is double-edged. It could conflict with already taken security stances, cultural or political scenarios. However, we need not photocopy the South African TRC because our society, culture, approaches and the conflict is dissimilar.

Effects of the background for TRC

One may consider these differences with simple reference to the TRC establishment process. For instance, the South African negotiators and former enemies jointly drafted an Interim Constitution. In Sri Lanka this is to be achieved through a Parliamentary Select Committee (PSC), where the leading Opposition parties are absent. O tempora! O mores! (Oh, the times! Oh, the customs!)
Unfortunately, there are no Mandelas or de Klerks in Sri Lankan politics!

The African National Congress which won power wanted “justice.” They had alternative means to deal with issues, e.g. prosecutions, reparations, rehabilitation. The Apartheid Government wanted “collective amnesty”. The TRC had to address both. In the Sri Lankan context only the GOSL exists to demand trend-setting since LTTE is wiped out; and, the TNA is criticized as “LTTE proxies”, though invited by the GOSL to the PSC!

If President Zuma wished the Sri Lankan TRC to offer amnesty for acts, omissions and offences associated with the conflict, it will require ‘pure rehabilitated minds.’ The Tamil Diaspora had been demanding the punitive pound of flesh of the President and Secretary Defense for violations, while the GOSL totally denied any complicity. How to balance this partiality has to be considered before nodding the TRC.

Nevertheless, under a TRC the events that had led to suffering and violations of rights, life and properties can be addressed on the basis that there is a need for understanding, not for vengeance; a need for reparation but not for retaliation; a need for compassion but not for victimisation. Are these aspirations understood by both sides of the divide, even 4 1/2 years after annihilating LTTE?

Even South Africa faced this problem. Due to similar complications Dr. Alex Boraine, a former Opposition Parliamentarian (unlike Sri Lankans!) hosted seminars that allowed political leaders, civil society representatives and victims of apartheid to explore a Truth Commission approach. GOSL has not tried duplicating such preliminaries, probably because TRC proposal is still an embryo.

Due to these contradictory effects the Sri Lankan TRC process differs. However, in pursuit of national unity and well-being and sustainable peace, reconciliation demands proper processes. In this, partiality will not take the country anywhere. Can TRC build impartiality?

It is said that the TRC dealt with gross crimes against humanity and focused on the specified period. Perpetrators had the opportunity to apply for amnesty for crimes committed during that period. TRC was unique as it allowed amnesty in lieu of truth. Can this be achieved in Sri Lanka where no one admits perpetration or accountability to violations and extremist allegations are leveled?

Understanding of “understanding”

I quote an episode from “Call Me David” by John McSweeney to clearly understand the “understanding” required for reconciliation through a TRC.

“A frail black woman stands slowly to her feet. She is over 70 years of age. Facing her across the court room are several white security officers, one of them, Mr. Van de Broek, has just been tried and found implicated in the murders of both the woman’s son and husband some years before.

It was indeed Mr. Van de Broek, it has been established, who had come into the woman’s home many years back, had taken her son, shot him at point-blank range and then burned the young man’s body on a fire while he and his officers held a party. Seven years later Van de Broek and his cohorts had returned to take away her husband as well. For many months she heard nothing of his whereabouts. Then almost two years after her husband’s disappearance, Van de Broek came back to fetch the woman herself. How vividly she remembers that evening, going to a place beside a river, where she was shown her husband, bound and beaten, but still strong in spirit, lying on a pile of wood. The last words she heard from his lips, as the officer poured gasoline over his body and set him aflame, were `Father, forgive them.’

And now the woman stands in the courtroom and listens to the confession offered by Mr. Van de Broek. A member of the commission turns to her and asks, `So, what do you want? How can justice be done to this man who has so brutally destroyed your family?’ ‘I want three things” began the woman, calmly but confidently. `I want first to be taken to the place where my husband’s body was burned so that I can gather the dust and give his remains a decent burial.’ She pauses, and then continues, `My husband and son were my only family. I want secondly, therefore, for Mr. Van de Broek to become my son. I would like him to come twice a month to the ghetto and spend time with me so that I can pour out on him whatever love I have remaining within me.

‘And finally,’ she says, `I want a third thing. I would like Mr. Van de Broek to know that I offer him my forgiveness because Jesus Christ died to forgive. This was also the wish of my husband. And so, I would kindly ask someone to come to my side and lead me across the courtroom so that I can take Mr. Van de Broek in my arms, embrace him and let him know he is truly forgiven. As the court assistant comes to lead the elderly woman across the room, Mr. Van de Broek, overwhelmed by what he has just heard, faints. And as he does those in the courtroom – friends, family and neighbours, who were all victims of decades of oppression and injustice – begin to sing softly the great hymn, `Amazing grace, how sweet the sound, that saved a wretch like me…’

Are Sri Lankans, whether here or abroad, Sinhalese or Tamil, in the military or with LTTE convictions, in the mood to emulate this black woman, at a local TRC? If our psyche is narrow, forget what President Zuma proposed, because the success of TRC in South Africa is not only because of an institution, but due to the respect people had to solemn sympathetic understanding.

Dan Sinh Nguyen Vo says that “reconciliation, at its core, is about restoring the right relationship between people who have been enemies.” Since the “enemy” is non-existent, can GOSL observe the “relationship between people” as Sri Lankan citizens? Is it achievable by amnesty, speaking the truth, hugging a perpetrator like the African woman who embraced the killer of her husband and son, or, by crying for raw blood of unknown perpetrators, as it occasionally happens here? Has GOSL initiated mental conversion of officials, politicians and supporters to do the same with regard to the affected? Has media or clergy commenced new thinking? Have Tamil politicians and the remnants of the LTTE changed themselves? Not much.

A quote from Grace Mandela on Robert Mugabe is appropriate here. While urging African leaders to learn from Mugabe’s mistakes she said “We came together to liberate ourselves but now we show that power and the way you exercise power can pervert you to become precisely the opposite of what led you to became a freedom fighter.” In this regard, Mandela – de Klerk relationship could be guidance to Sri Lankan politicians – Government/Opposition, high and low.

Forces opposing reconciliation blur understanding. In a previous writing when I quoted the black African lady in support of reconciliation, a response quoted another African case record: “We are saying Justice must be done especially when we’ve got a government waited for more than 10 years to take action against the criminals.” Do not we Sri Lankans here similar sentiment with 30 years replacing 10 years proving that Sri Lanka is not short of such revenge enthusiasts. It is the same for those LTTE remnants protesting over age old historic declarations and events too. We must disagree with continuing mutual and reciprocal hatred and revenge, meaning that guillotining will not end. It is frankly because sinners can be with both.

legal academic Eugenia Zorbas, writing on post-genocide Rwanda said ‘National reconciliation is a vague and messy process.’ The current reconciliation dialogue here also confirms this status. Sometimes hard choices have to be selected on reconciliation. Emotional and biased outbursts on such selection will not help the Victor or Vanquished, but a TRC can soothe.

TRCs are a popular vehicle for reconciliation. It aims at truthfulness, creating space for people to feel safe and talk of fears and hopes, hurts and responsibilities. Archbishop Desmond Tutu has argued in favour of a TRC as the most appropriate mechanism to reconcile South Africans. Whether it would repeat in Sri Lanka is worth watching.

Whether outcomes would satisfy the victims’ expectations and dispense justice will depend on the TRC’s processes from preparation of the Terms of Reference, operational genuineness and publicising the unbiased truth from inquiry. Even if all five volumes of African TRC reporting is not read, if the fifth volume that contains the conclusions reached by the TRC, including analyses, findings and recommendations are read by authorities, it would enlighten on how a TRC could be made useful for sustainable reconciliation. President Zuma can assist GOSL, as promised.

Hope for eternity

A quote from Hadis Tirmidi says: “On the day of Makkah Victory, some Sahabas (close associates) said while entering Makkah, “Al-yamu Yamul Marhama” (Today is the Day of Revenge). As the Prophet heard this He said, “Al-yawmu Yamul Marhama” (Today is the Day of Showing Love). It means the Day of Forgetting and Forgiving.” Can a TRC bring us to the Day of Forgetting and Forgiving?