Photo courtesy Daily Maverick

“How do we keep the past alive without becoming its prisoner? How do we forget it without risking its repetition in the future?”

Ariel Dorfman, ‘Death and the Maiden’

The Chilean playwright Ariel Dorfman poses these questions in his play Death and the Maiden after witnessing massive human rights violations in his home country and alludes to a delicate balance needed in terms of the past, present and future. The Chilean National Commission on Truth and Reconciliation documented violations and published a report which recognised past events. Subsequent action in Chile held to account perpetrators and introduced much needed reform. The delicate balance was achieved in Chile through several state and non-state initiatives. Truth telling was a critical part of it.

Diverse memories and perceptions of the past lead to a rich mosaic of narratives, complex and sometimes at odds with each other. Such diversity should have space in a multi ethnic and multi religious society. More than five years after the end of the war, Sri Lanka is facing one of its biggest challenges in making space for multiple narratives. State sanctioned initiatives and extremist majoritarian groups are aggressively working towards creating what Chimamanda Adichie calls the danger of the single story. In such a contested setting, is it possible to achieve the delicate balance referred to by Dorfman?

With mounting national and international pressure to address past and ongoing violations, the Government of Sri Lanka has resorted to establishing commissions of inquiry as its chosen path towards truth and justice. The most well known state initiative in post war Sri Lanka was the Lessons Learnt and Reconciliation Commission (LLRC). In 2013 the Presidential Commission to Investigate into Complaints Regarding Missing Persons (COI) was established, seemingly to address the issue of disappearances. Although not directly termed a truth and reconciliation commission, statements by Government officials indicate a preference towards a restorative justice model over a retributive one, coupled with a passionate appeal for a ‘home grown’ solution. In the absence of information indicative as to what the State sees as its preferred restorative justice model, it is to be assumed that the present COI fits its model of truth telling.

This article briefly looks at the recent developments with the COI, the importance of truth telling and its implications towards justice, accountability and reconciliation in Sri Lanka. The Government’s notion of a truth telling process vis-à-vis the LLRC and now the COI reflects attempts at shaping a single narrative within the veneer of investigations and inquiries. The dangers faced with this notion of truth and the tools used for this purpose are attempts to legitimise a flawed process. This has also kept at bay calls for independent investigations and created confusion among the larger public reliant on the limited public information as to the real implications of such processes. Furthermore, such attempts will only exacerbate the culture of impunity and the spiral of silence.

Problems with the Most Recent Truth Telling Initiative in Sri Lanka

Recent discourse surrounding the present COI highlights several issues related to its expanded mandate and the inclusion of an ‘Advisory Council’ consisting of international legal experts. The COI appointed by President Mahinda Rajapaksa on 15 August 2013 was mandated to investigate and inquire into disappearances from 1990-2009 in the North and East area, which later expanded to cases between 1983-2009. The overwhelming number of complaints made by affected communities who continue to search for their loved ones resulted in the COI receiving two extensions with the new term extended till February 2015. Gazette No. 1878/18 dated 15 July 2014 which expanded the COI’s existing mandate on disappearances to one that include violations of international humanitarian law (IHL) and international human rights law (IHRL) requires attention. It also established an ‘Advisory Council’ naming three internationally known lawyers as advisers with the prospect of expanding the number of advisers at a late date. Unknown at the time of writing are the terms of reference for the advisers and what role they are to play in the COI process.

A closer reading of the gazette expanding the mandate poses several questions:

  1. Would the momentous task of investigating and inquiring into over 19,000 complaints of disappearances be side-lined at the expense of the expansion of the mandate? This is in the context when the number of complaints has increased and the already high number of complaints of disappearances cases is likely to increase with the mandate being extended to February 2015. Would the COI be able to continue to investigate disappearances when the expanded mandate includes other key issues?
  2.  Do the commissioners and their staff have the expertise and resources to handle issues covered by the expanded mandate? The expanded mandate requires specific expertise into IHL and IHRL violations and conducting investigations into allegations of war crimes and crimes against humanity. Going by the public sittings, much more is required if the COI in its present form is to thoroughly examine issues likely to come before them.
  3.  What is the role of the advisers in the work of the COI and would they have an independent role? This is relevant with the recent experience of the International Independent Group of Eminent Persons (IIGEP) who were also appointed by the same Government in 2007 but left within a year of operation citing inability to work in a context of state interference and a lack of political will to support a search for the truth. Media reports indicate funding for the Advisory Council will be from the Presidential Secretariat, raising the question of independence and whether the advisers will be held hostage by their paymaster.

The timing of these developments is hardly a coincidence. The international investigation established in accordance with the United Nations Human Rights Council Resolution A/HRC/RES/25/1recently commenced operations. The investigation which is headed by a panel of three eminent internationals, Mr. Martti Ahtisaari, former President of Finland, Ms. Silvia Cartwright, former High Court judge of New Zealand, and Ms. Asma Jahangir, former President of the Human Rights Commission of Pakistan. As provided for in the resolution, the investigation will also be able to obtain the assistance of specific special procedures mandate holders. The terms of reference to the investigations spelling out their framework was issued recently and will be a guide for those observing and/or engaging with the process. It is yet to be seen how/if victims and affected parties in Sri Lanka will be able send submissions to the investigations. This in the context of potential security threats in Sri Lanka, especially when Government ministers, officials and those enjoying state support threaten violence and possible prison time against anyone sharing information with the international investigation. It seems truth telling is only allowed if it is before a mechanism approved and provided for by the Government and no other.

The choice of yet another commission to address violations and to seemingly detract from the international investigations comes as no surprise. The expanded mandate and the shift from its original purpose to a broader mandate leads to concerns of attempting to undermine the gravity of disappearances in Sri Lanka for political and possibly other purposes. The fact that many families from across Sri Lanka sent in complaints and some travelled considerable distance for a brief moment to be heard, yet again, is a reminder of the thousands whose whereabouts are unknown and the many questions that require answers.

Is Genuine Truth Telling Possible in Post War Sri Lanka?

Many who complained to the COI have gone before numerous state initiatives introduced to address disappearances including previous commissions and committees. The present COI is perceived by many as yet another state initiative which is unlikely to give any genuine response, similar to the countless before it, but families continue to go before such entities with the hope of finding their loved ones. This is captured by one catholic priest who stated “We do not have any hope now but we want to know if our loved ones are alive or dead”. The high number of complaints received so far by the COI and the perseverance shown by the affected communities in their search for loved ones provide a glimpse into a large number of people still searching for answers. The families who came before the COI had one simple ask which was captured by a mother who came for the Mannar sitting: “I don’t want any government assistance. I only want my son back”. The search for answers was a single uniform thread in the complaints made to the COI and highlights the importance of truth for many affected by violence.

The COI recently held sittings in Mannar District on 8-11 August with as many as 225 invited to make submissions and the COI hearing over 150 complaints in the four days of sittings. Although information about the COI was available to many in Colombo, limited information was available in Mannar. Several in the area when first contacted were unaware of the COI sittings with some stating that information was received only through media and the church. The fact that limited information was available in the areas begs the question whether that in itself deprives families of a basic right to know and to be heard.

Many recounted to the COI how family members disappeared and the cases ranged from those during the war to a few post war incidents. Many recounted of disappearances during the last stage of the war: forcibly recruited by the Liberation Tigers of Tamil Eelam (LTTE) or surrendered family members to the security forces who are still missing. A father recounted of how he left his daughter at the Valaignarmadam church as a safety measure during the last stage of the war and how the LTTE had taken all the children at the church amounting to over 400 children being disappeared. He has yet to see his daughter since that day. A woman recounted of her search for her sister, brother-in-law and four year old nephew who disappeared in 2009. The sister’s complaint of the disappeared family is not a unique case. Many families disappeared in their entirety during the war and a critical question to ask is how/if this specific group will be examined. Others recounted of the horrors of war. One informed of attempts to surrender to the security forces during the last days of the war and being fired at by the security forces. Another mother recounted how she had to leave her injured daughter due to continuous shelling, a heart wrenching decision for any parent to make. Another mother recounted of losing her two children, aged seven years and two years in May 2009 when they were fleeing the shelling. Her statement to the COI alleged shelling by the security forces and a chilling reminder of the brutality of war.

Statements by families were emotional with several breaking down before the COI. During their submissions, they were reliving, yet again, the trauma of losing a loved one and the few minutes provided to them hardly do justice to what they have endeavoured. In addition, the questions posed to the families so far lack empathy in the context of deep trauma. Furthermore, statements made by some of the commissioners to the families insinuate the disappeared and/or the families themselves were at fault. This raises the question whether the COI and the Government’s version of truth telling is more damaging than helpful to the families with little evidence to show there is genuine concern to hear grievances of affected communities. And it raises the larger question whether the official narrative has already taken shape with no space for any other.

The Search for the Truth Within a Flawed Framework

The choice of commissions must be examined in the context of the structural framework in place in Sri Lanka and the failure to act on the findings of previous commissions. The framework used to appoint commissions is the Commissions of Inquiry Act No 17 of 1948, providing the Executive with broad powers in the appointment and financing of a commission and deciding next steps in terms of its findings. Most of the reports of past commissions are yet to be made public. One notable exception is the LLRC. The interim and final reports of the LLRC are public but questions remain whether there is substantial progress with the full implementation of its recommendations. These are some of the structural flaws within the present system that require reform. The preference towards commissions and the possibility of their continued use in the future is a good reason to introduce reform, unless the structural framework providing for broad oversight by the Executive and for state interference are the very reasons for its preference.

It is a damning statement on the motives of a Government that promotes a model that is fundamental flawed and with little evidence of reform. The fact that the COI, which previously had a specific mandate, is to now investigate on questions of IHL & IHRL violations can have a devastating impact on the integrity required for the overwhelming numbers of disappearances. The Mannar sittings were the first since the expanded mandate and demonstrated a lack of planning and preparation needed if the broader scope is to be adopted. Immediate reform is needed if the Government is genuinely interested in a truth telling process that leads to truth and justice including a framework that provides for independent mechanisms and processes that give voice to people’s grievances and identify remedial action that is acted upon.

Truth Telling & Lessons for Sri Lanka

Truth telling is an essential tool in a society that witnessed decades of violence. It is fundamental to remember that we cannot black out a chapter of our history, however painful or unpleasant it is. For reconciliation and coexistence to be possible, the whole truth must be known. Unfortunately but unsurprisingly, the official version of what amounts to the truth seems to differ from that of affected communities. In such a context, would the whole truth be possible? Or would it be a partial truth, something that is convenient for the Government but fails the grievances of people?

Attempts at truth telling within a flawed framework, as is the present case, is extremely worrying and will continue to force affected communities to relive their trauma. Furthermore, such a process will be used, as seen with recent practices, to weaken calls for independent investigations and legitimise a flawed process. The fact that many still go before commissions is not a sign of their effectiveness but an indicator of the sheer desperation to find answers when all else has failed. This, if nothing else, should prompt a responsible Government to introduce much needed reform and to initiate an independent mechanism needed in the search for truth and justice. Truth alone cannot dispense justice but it is a critical tool to start a process to end the silence.