Eastern CM And The Post-Conflict Sri Lanka

In my opinion, however, the key issue in post-war Sri Lanka is ‘Reconciliation,’ because without building a true, peaceful relationship between Sinhalese, Tamils, and Muslims etc., no other post-war issue will be satisfactorily addressed.  Proposing the issue of ‘Reconciliation’ with the issue of ‘Accountability’ that proposes a ‘punitive’ justice model is a mistake when evaluating it against the post-war context in Sri Lanka.

by Dinesh D. Dodamgoda

( June 5, 2016, Colombo, Sri Lanka Guardian) The incident that took place in Sampur a few days ago between the Chief Minister- Eastern Province and a Naval officer caused an uproar. The majority Sinhala – Buddhist people expressly viewed it as a threat posed against ‘war heroes’ by a Chief Minister belonging to the country’s Muslim minority. Some Muslims viewed it as an unnecessary act by the CM.

Despite the ‘controlled views’ expressed publically, some Sinhala-Buddhists think that they are losing ‘control’ that they had over minority groups. This was orchestrated, however, in publically by a group of Buddhist Monks who went to the CM’s residence and scolded him in front of cameras. The implicit message of the said effort was to ‘regain control’. On the other hand, some Muslims are proud of the CM’s behaviour and told me that the Chief Minister had ‘balls’ to severely reprimand a Naval officer publically (the US Ambassador to Colombo was also on the stage when the incident took place). Some minority groups, especially some Muslims think that the incident reminded them again the bitter truth – they are second class citizens of Sri Lanka.

The above explained situation is a typical post-conflict scenario in a divided society like Sri Lanka. The level of socio-ethnic polarisation in Sri Lanka is still high, though there are efforts to minimise it. The war that  was fought between divided ethnic lines and lasted for more than two decades has deepened the socio-ethnic polarisation. Therefore, the situation even after the war is that the majority rules and the minority co-operates. The war that lasted for more than two decades only drew national and international attention to the ethnic problem, yet complicated it furthermore.

Process of Reconciliation

The situation again emphasises the need for having a sustainable-reconciliation process, the most important issue that should be addressed in the post-conflict Sri Lanka. However, some pundits think that the ‘Justice’ should be served before reconciling the society. Yet, their proposed mechanism so far is to adopt a kind of a punitive justice model that addresses the ‘accountability’ issue. In my opinion, any punitive model will further deepen the socio-ethnic polarisation as it will again create a context of ‘winners and losers’.

As evident in many post-conflict theatres, deeply divided post-conflict societies do not want more winners and losers. What those societies need is a sustainable process of rebuilding broken relationships. This will require ‘top-down’, ‘bottom-up’ and ‘middle-range’ approaches to reconciliation. However, a truth finding mechanism not with a ‘punitive model’ yet with a ‘restorative justice model’ similar to the South African Truth Commission also can be complementary model for both sides.

A Truth Commission?

A model similar to the South African Truth & Reconciliation model is a viable option for Sri Lanka. However, at least five points were raised by the Global Tamil Forum, Amnesty International, the Government of Sri Lanka and the authors of the draft of the National Policy on Reconciliation in arguing against adopting a mechanism similar to the South African TRC model for Sri Lanka. They stated that,

1.   An inquiry should be based on the principle of punishment but not forgiveness.

2.   An inquiry should set up two moral status for the LTTE and the government forces.

3.   An inquiry should consider only the final phase of the War against the LTTE.

4.   An inquiry should be based on a trial, a conviction and punishment.

5.   An inquiry is to punish perpetrators as confession and forgiveness is not part of the Sri Lankan culture.

When evaluating arguments raised against Sri Lanka adopting a TRC style mechanism, it is worth inquiring the South African experience with regard to the five points noted above.

1. An inquiry should be based on the principle of punishment but not forgiveness

The South African mechanism was based on the principle of ‘forgiveness’ – not the principle of ‘punishment.’ The TRC in SA had no power of prosecution, or any judicial function. However, it could summon witnesses and had search powers and has access to all documents. According to the process that was adopted by the TRC, a perpetrator could apply for seeking amnesty and after a detailed confession about crimes he/she committed in achieving political objectives, his/her name would be published in the Government Gazette with acts for which the amnesty apply. It was a public hearing, yet the Committee could decide on a private hearing.

2.   An inquiry should set up two moral status for the LTTE and the government forces

Only a single moral status was set up in the South African context. The National Party (NP) negotiator, a member of the last white cabinet, Danie Schutte cautioned that ‘any instance on separate moral status for apartheid soldiers and guerrillas of the African National Congress’ (ANC’s) armed wing could undermine reconciliation. A South African reporter noted that the Commission should focus not just on the apartheid regime but also on crimes committed by the liberation movement such as the ANC atrocities in Angolan detention camps. Therefore, a single moral status should be set up for the GOSL and the LTTE.

3.   An inquiry should consider only the final phase of the War against the LTTE

The South African Commission had a mandate to cover crimes committed with a political objectives from 1 March 1960 to May 1994. This was to cover almost all the possible politically motivated gross human rights violations during the apartheid in SA. However, only the final phase of the War against the LTTE is to be considered in the Sri Lankan case and it would be the period from 1 January 2009 to May 2009. This is incorrect and the total period of more than two decades should be covered by the proposed inquiry.

4.   An inquiry should be based on a trial, a conviction and punishment

Human Rights organisations are the main propagators of the above argument. Even in the South African context, Amnesty International itself had suggested that pardon be granted only after trial and conviction. However, arguing against human rights organisations, Professor Kader Asmal, a Professor of human rights at the University of the Western Cape and a politician, stated in a speech prepared for the TRC in SA that,

‘The Nuremburg approach would probably enjoy the support of most human rights organisations’ but this would not be conducive to reconciliation ‘and could be considered as a witch hunt.’

5.   An inquiry is to punish perpetrators as confession and forgiveness are not parts of the Sri Lankan culture

Foreign Minister Mangala Samaraweera expressed ideas last year and indicated that confession and forgiveness are not parts of the Sri Lankan culture. Even in the South African context, some people argued that the culture and the moral code of the South African society is to punish perpetrators. For example, the very first interviewee, a Professor, who applied to become a TRC Commissioner said in the interview that he believed in retribution as part of the process, because ‘it is part and parcel of our moral code, our legal system and our theological belief, and I feel that the public embarrassment that would come with revelation to the Commission is a form of punishment.’ Even the families of Steve Biko also disagreed with the TRC and tested the Legality of the Commission in the Constitutional Court, saying they want ‘justice.’ Yet, the confessed perpetrators who admitted to killing Biko were not prosecuted.

Archbishop Desmond Tutu believed that reconciliation is not cheap and was based ultimately on forgiveness and repentance, which depend on confession. Archbishop Tutu favoured as broad a process of forgiveness as possible, provided those who perpetrated murders or torture could prove they acted politically. Therefore, the SA government refused the argument raised against the TRC on the basis of cultural and moral codes of the society and went ahead with the TRC mechanism.

The guiding principle

In my opinion, however, the key issue in post-war Sri Lanka is ‘Reconciliation,’ because without building a true, peaceful relationship between Sinhalese, Tamils, and Muslims etc., no other post-war issue will be satisfactorily addressed.  Proposing the issue of ‘Reconciliation’ with the issue of ‘Accountability’ that proposes a ‘punitive’ justice model is a mistake when evaluating it against the post-war context in Sri Lanka.

The reason is that such an approach generates counterproductive effects on initiating a process of sustainable reconciliation, because bringing the war-crime accountability issue forward ignites the flare of  the Sinhalese anger over international actors, human rights groups and the Tamil Diaspora as the majority of Sinhalese hail the military victory over LTTE and see contributors to the victory as ‘heroes’.

However, if the United Nations Human Rights Council (UNHRC) wants to initiate a domestic inquiry in SL as proposed by the USA, a mechanism similar to the South African TRC should be adopted and ‘forgiveness’ should be used as the guiding principle.

(The writer is an Attorney-at-Law and a former Member of Parliament)