Image Courtesy of Colombo Gazette
In Sri Lanka, the challenge to achieve transitional justice lies not in the process alone but also in coming to terms with the ultimate goal. In a post-war context, what is the ideal? As a multi-ethnic society where do we aspire to be? If we do not embrace reconciliation, is the dream to remain as we are now, deeply and destructively divided?
For transition to be successful, the people must trust and accept the process. However, a history of systematic discrimination, majoritarianism, and ethnic conflict has resulted in hostilities, prejudice, and diminishing tolerance between communities in Sri Lanka. The way different groups perceive each other (along ethnic/ nationalist lines) has also impacted their perception of the best way forward.
On one end are nationalist elements who view the concept as international conspiracy, a threat to sovereignty and a dishonour to the war effort. For the majority community, reconciliation and accountability are one sided. The argument is that with the LTTE disbanded and no LTTE leaders to hold accountable, justice mechanisms will be used to target war heroes, impacting only one community.
On the other end are sections of the Tamil polity (including civil society who remain divided along ethnic lines) who disregard local efforts as a political sham and local accountability mechanisms as a weak alternative to an international tribunal. The goal for the latter extends to further devolution of power guaranteed by a new constitution. It would prove then that the Sri Lankan polity is divided not only on their perceptions of ‘how to get there from here’ or the route society should take to achieve post-war justice but also on what they view as the end goal.
This divided perspective makes certain ideals of transitional justice undesirable for some. Memorialisation for instance is a key aspect of transitional justice. While monuments commemorating soldiers and suffering civilians have been set up along the South coast, there has been little to no effort to memorialise victims of the North and East. Decades after the war, remembrance days and memorial ceremonies of the Tamil community are deliberately obstructed. This resistance reflects social perceptions of the 30-year civil war which took place primarily in the North and East. The Tamil population in these areas are seen as the enemy, drawing resistance to development or reconciliation efforts in these regions.
This does not imply an outright neglect of these communities. The North and East has benefitted from development projects, even under the Rajapaksa government which was hostile to the concept of transitional justice. However, not all efforts can be considered means of transitional justice. To be recognised as reparations, services must first be identified as redress for violations. For this, the type and nature of violation must be specified and publicly acknowledged. This is not desirable for a government that denies human rights violations and pushes a triumphalist political narrative, neither is it desirable for the majority community who view fellow citizens in the North and East as their enemy.
Evidently, social and political conditions not only impact the nature of transition but also how transitional efforts are portrayed to the public. Yet the very core of transitional justice relies on acknowledgement and apology than retribution. Portrayal is vital and the message matters.
Efforts were made by the 2015 government to bridge this social gap, and to engage all communities in the transitional justice process. Island wide consultations via the CTF is an example. The aim was to consolidate public opinion on the proposed mechanisms and understand public sentiment on the best way forward. The CTF report highlighted the lack of trust among Sri Lankans (of all religions, ethnicities, and regions) in a credible justice system that would address violations of human rights. The CTF called upon the government to restore public confidence and establish victim-centric mechanisms. However, co-sponsoring UN resolution 30/1 and the proposed mechanisms sparked outrage among the majority population.
Feeding off social hostility and fears, the TJ process has been capitalized for political advantage to promote divided political ideologies. The overall approach by the Rajapaksa government following the end of the war was one of victor’s justice. The then UN Secretary General visited Sri Lanka on the invitation of former President Mahinda Rajapaksa, and in a joint statement released following the visit, Sri Lanka committed to promoting and protecting human rights. However, appeasing the majority, political leaders denied past abuses and showed hostility to international interference. Ultimately, the government did not follow through with its commitments, leading to further investigative reports and a series of UN resolutions being brought against Sri Lanka.
A shift in political ideologies was seen under the new government in 2015. There was an acknowledgement of past abuses and the view that Sri Lanka needs to protect human rights and investigate allegations. Although implementation of Resolution 30/1 was slow, there was a visible effort to set up the proposed mechanisms, in stark contrast to the unwillingness of the former government to implement LLRC recommendations.
The nature of mechanisms proposed by the two political factions also differed. While the Rajapaksa government proposed home-grown solutions, the 2015 government indicated a shift, collaborating with the international community. From the public backlash the government received, it was evident that these efforts fueled majority resentment and deepened the existing social divide.
Political leadership, government championing and effective communication campaigns can impact social perceptions and drive forward the transitional justice agenda. However, even the 2015 government showed an inability/ unwillingness to do so, allowing opposition arguments to remain unchallenged.
A history of nationalist policies and majoritarian politics have led to a breakdown of pluralism and a culture of political corruption in Sri Lanka.
A report by Amnesty International stated that:
‘Sri Lanka’s criminal justice system has critical shortcomings that obstruct justice (…) The system is so degraded that the vast majority of human rights violations over the past 20 years have never been investigated, let alone heard in court. (…) This is not simply a problem of inadequate resources or institutional capacity (…); it is a problem of political will.’
It is due to the failure of the formal justice system that international mechanisms have been proposed, to which Sri Lanka has responded by appointing ad hoc commissions of inquiry and committees which have faced many criticisms in relation to their mandate, commissioners appointed, and work carried out. Amnesty International charges that Commissions of Inquiry have not brought justice and ‘Presidential Commissions have proved to be little more than tools to launch partisan attacks against opponents or to deflect criticism when the state has been faced with overwhelming evidence of its complicity in human rights violations.’
Even today, Sri Lanka’s transitional justice narrative is caught between the demands for accountability by victims and their families and the patriotism of the government in honoring the war victory and resisting Western interference. In such a polarised context, the key question remains whether there is sufficient political will and public trust for any transitional justice effort to succeed. The result has been the disillusionment of the public in the entire process and Sri Lanka’s democratic potential remains elusive.