On the 31st of March a small gathering at the Bar Association Auditorium in Colombo, heard a wise and timely presentation on restorative justice and constitutionalism by a visiting lawyer from South Africa. On that occasion Mr Howard Varney, a guest of the Centre for Policy Analysis (CPA), solemnly offered several helpful insights from his own country as well as Kenya and Tunisia, on how a violated and wounded society could best ensure that the ghosts of the past would ‘never again’ return to haunt its people.
This reflection is on two of his disclosures on truth commissions. These are;
1. That the TRC failed to deal with the violations of several of the more culpable perpetrators in South Africa
In-spite of the TRC functioning after the shift in power these perpetrators, were yet able to evade the mechanisms for justice and reconciliation through truth telling. Most were never heard or called to defend themselves against the evidence of victims and witnesses.
There is a lesson here for us; called to address violations of human rights, during our recent past. The mere ‘setting up’ of structures and mechanisms for reconciliation with justice is no guarantee that this will happen. In fact the way investigations are proceeding on several serious allegations of corruption and violence, that have little direct connection with the thirty year civil conflict, indicates that powerful perpetrators will not be held accountable and justice will not be done by those harmed and humiliated. This is because with some notable exceptions, politicians have a way of closing ranks when in crises, to trump the national conscience by cleverly neutralising their populist public pronouncements.
Similarly the powerful States that speak for the ‘International Community’, familiar with the rules of this game, know how to go along with the rituals of accountability and shift gears at the right time. The real hard task of post conflict communities coming to terms with the truth just once in their histories is of secondary importance to these internal and external forces, for whom the pursuit of wealth and power (markets and militarisation) matter most, all the time.
One way of preventing pacts among the powerful wealthy here and elsewhere will however be for the Government to be pressurised to do what it is mandated to do; take full responsibility to initiate investigative action when violations occur among its own and within its borders. The ability of a people to sense the distinction between hollow mechanisms and the statutory application of the rule of law is crucial for this task of advocacy.
2. Most of the truth revealed was from encounters beyond the formal proceedings of the TRC
In this sense all Truth Commissions that follow a protracted conflict are an anti-climax. This is because there is already a reservoir of peoples (public) memory that ironically judges and outlives formal hearings. This memory is kept alive in whispers within trusted circles around almost every, abduction, unlawful detention, act of intimidation and torture, assassination and so on. Somewhere out there, are relations and colleagues in whom anxious victims confided, and who will not easily disclose the truth in formal structures, and somewhere out there, are clusters of perpetrators and accomplices, who are desperate to hide their sinister secrets from the public eye. Consequently, the challenge to truth discovery centres on how these narratives could be facilitated to complete a fuller understanding of the truth.
One way forward in this quest would be to initiate a process that would initially hear such concealed truth in a less formal, culturally compatible ethos, and then pass these tentative findings on to the more ‘intimidating’ judicial process for formal hearings. In doing so, narratives privy to victims will have to be dealt with mindful of the trauma experienced in reliving these experiences.
Such an integrated shift will require visionary courage by the judiciary, whose task it is to ensure a safe and just society for all, through impartial and consistent mechanisms of protection and investigation in challenging circumstances. The delicate balance between amnesty and prosecutions can only be addressed thereafter; once the truth is known.
Our recent political history records that those in civil governance seek to enhance the lives of the people only after their own interests are safeguarded. What can reverse this order are alert peoples movements and institutional reform. In this swing between decline and advancement we are called to avoid the extremes of disillusionment and idealism and strive without ceasing for the common good.
With Peace and Blessings to all