In defence of a truth and reconciliation Commission in Sri Lanka

By Jehan Perera, Executive Director at the National Peace Council of Sri Lanka

(This article is based on a speech delivered at the 57th Meezan Journal launch of the Law Students' Muslim Majlis at the Sri Lanka Law College on February 19, 2025)

Honourable Justice A.H.M.D. Nawaz, esteemed faculty members, distinguished guests, and students,

I am honoured to address you today at the 57th Meezan Journal Launch, an event that epitomises the intellectual vigour and commitment of the Law Students' Muslim Majlis at the Sri Lanka Law College.

At the outset, I extend my gratitude to Justice A.H.M.D. Nawaz for having recommended my name to you to invite me to speak to you. Justice Nawaz's illustrious career, has been marked by unwavering dedication to justice and profound legal acumen. It serves as an inspiration to all of us. His recent leadership as the Chairman of the Presidential Commission to Investigate Findings of Previous Commissions of Inquiry on Human Rights and Their Implementation underscores his commitment to addressing the complex issues that have long troubled our country.

Today, I wish to discuss a matter of paramount importance: the necessity of establishing a Truth and Reconciliation Commission (TRC) in Sri Lanka. I believe this initiative is a crucial step towards healing the wounds of our past, fostering national unity, and ensuring a harmonious future for all Sri Lankans.

The Nawaz Commission Report provides a clear answer—Sri Lanka must establish a Truth and Reconciliation Commission to formally address past injustices, provide justice for victims, and prevent future conflict. This commission would be a crucial step toward national healing, legal accountability, and long-term peacebuilding.

The Imperative for a Truth and Reconciliation Commission in Sri Lanka

Sri Lanka's post-Independence history has been marred by significant periods of conflict and strife, most notably the nearly three-decade-long civil war that commenced in 1979. The deployment of the Sri Lankan Army to the North and the enactment of the Prevention of Terrorism Act as a temporary measure in that year marked the beginning of a tumultuous era. The tragic anti-Tamil riots of July 1983 and other momentous events such as the expulsion of all Muslim residents of the North in October 1990 further exacerbated ethnic tensions, propelling the country into a cycle of violence and human rights violations.

The aftermath of such prolonged conflict has left deep scars on our society. Families mourn the loss of loved ones, communities grapple with displacement, and the country as a whole bears the weight of unresolved grievances. Traditional judicial mechanisms, constrained by procedural limitations and overwhelmed by the sheer volume of cases cannot address these issues. This observation is not limited to Sri Lanka alone, but can be seen in other countries as well. There have been over 50 truth and reconciliation commissions worldwide. It underscores the pressing need for a transitional justice system, of which a TRC is a cornerstone.

Understanding Transitional Justice

Transitional justice refers to the array of processes and mechanisms employed by societies to reckon with legacies of extensive human rights abuses. Its primary objectives are to ensure accountability, deliver justice, and achieve reconciliation. As outlined in the United Nations Secretary-General's 2004 report on the Rule of Law and Transitional Justice, cited in the Nawaz Commission report these mechanisms encompass both judicial and non-judicial approaches, including:

1. Truth-Seeking: Uncovering and acknowledging the facts about past atrocities.
2. Accountability: Holding perpetrators responsible for their actions.
3. Reparations: Providing compensation and support to victims.
4. Institutional Reforms: Transforming institutions to prevent the recurrence of abuses.

The establishment of a TRC embodies these pillars, offering a platform for victims to voice their experiences, facilitating the pursuit of justice, and promoting societal healing.

Insights from the Nawaz Commission Report

The Presidential Commission, chaired by Justice Nawaz, was entrusted with the formidable task of evaluating the findings of previous human rights inquiries and assessing their implementation. The Commission's interim reports, published in 2022, and its final report, submitted in January 2024, provide a comprehensive analysis of Sri Lanka's human rights landscape.

A pivotal recommendation from the Commission is the formation of a TRC. As articulated in paragraph 1043 of the report:

"Undoubtedly, the Truth and Reconciliation Commission can provide a historical record of serious violations of human rights and international humanitarian law, and influence institutional reforms in law and practice to promote and protect human rights. Critically, they assist in ensuring accountability for serious violations, which is fundamental in order to prevent potential violations, promote compliance with the law, and provide avenues of justice and redress for victims."

This assertion underscores the multifaceted role a TRC can play in Sri Lanka's journey towards reconciliation. By establishing an authoritative historical record, the TRC can dispel misinformation, acknowledge the suffering of victims, and pave the way for meaningful reforms.

Learning from Previous Commissions

Sri Lanka's history is replete with numerous commissions of inquiry, each established with the intent to investigate specific incidents or periods of unrest. The Nawaz report goes painstakingly into them. Notable among these are:

Some key past commissions include:

1. The Three Presidential Commissions of 1994, which investigated violations from 1987 to 1990 but were prematurely halted.
2. The All-Island Presidential Commission of 1998, which built on the earlier inquiries and issued a report in 2002, calling for judicial action.
3. The 2001 Presidential Truth Commission on Ethnic Violence (1981-84), which investigated the 1983 riots. While some victims received compensation in 2004, there was no accountability for perpetrators.
4. The 2006 Udalagama Commission, which investigated cases like the Trincomalee five students and the 17 ACF humanitarian workers but lacked follow-through.
5. The 2010 Lessons Learnt and Reconciliation Commission (LLRC), which reviewed events from 2002 to 2009 and made many recommendations that were not implemented.
6. The 2013 Paranagama Commission, which examined missing persons and civilian casualties during the final years of the war and led to the setting up of the Office on Missing Persons (OMP) in 2016.

The recurring theme across these commissions is a pervasive sense of disillusionment among victims and the broader populace. As the Nawaz Commission which went through them in detail poignantly observes:

"Our island nation has had a surfeit of commissions. Many witnesses who testified before this commission narrated their disappointment of going before previous commissions and achieving nothing in return."

This sentiment highlights the critical need for a TRC that not only investigates but also ensures the implementation of its recommendations, thereby restoring public trust in transitional justice mechanisms.

Major Findings of the Nawaz Commission:

1. Truth-Seeking Must Be the First Step

 - Paragraph 1043 of the report states:

  - "Undoubtedly, the Truth and Reconciliation Commission can provide a historical record of serious violations of human rights and international humanitarian law and influence institutional reforms in law and practice to promote and protect human rights."

2. Past Commissions Have Failed Due to Lack of Implementation

 - The report acknowledges that Sri Lanka has seen multiple commissions (such as the LLRC) that made strong recommendations, but most were ignored or politically manipulated.

 - A TRC must have enforcement powers to ensure its findings lead to action.

3. Institutional Reforms Are Necessary

 - The commission highlights the failure of Sri Lanka’s legal system to process human rights cases.

 - Reforms in law enforcement, the judiciary, and security sectors are required to ensure non-recurrence of violations.

4. Victims Must Be the Focus of Reconciliation

 - The report stresses that a TRC must prioritize victim reparations, psychological support, and public acknowledgment of suffering.

The Role of the United Nations Human Rights Council (UNHRC) Resolutions

International engagement, particularly through the UNHRC, has significantly influenced Sri Lanka's approach to human rights and reconciliation. Key resolutions include:

• Resolution 25/1 (March 2014): This resolution called for a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka during the period covered by the Lessons Learnt and Reconciliation Commission (LLRC).
• Resolution 30/1 (October 2015): Co-sponsored by Sri Lanka, this resolution outlined 36 commitments encompassing human rights, accountability, and transitional justice. It became the blueprint for Sri Lanka's reconciliation efforts.
• Resolution 51/1 (September 2022): This resolution extended the mandate of mechanisms aimed at collecting evidence of alleged war crimes in Sri Lanka. The government, however, rejected this resolution, reflecting ongoing tensions between domestic and international perspectives on accountability.

International Precedents for TRCs

Sri Lanka can learn from successful TRCs worldwide. The most celebrated example is the South African Truth and Reconciliation Commission, chaired by Archbishop Desmond Tutu. It played a crucial role in addressing apartheid-era injustices and promoting national healing through public testimony, acknowledgment of past crimes, and a balance of amnesty and accountability.

Key Lessons from Other Countries:

1. South Africa’s TRC (1995-2002)

 - Document apartheid-era crimes committed by both the government and resistance movements.

 - Provide amnesty to perpetrators who fully disclosed their crimes.

 -Gave victims a voice through public testimonies.

 - Recommended reparations and institutional reforms.

Successes:

- Public hearings humanized victims’ suffering, making reconciliation possible.

- Institutional reforms led to more inclusive governance structures.

- The TRC created a permanent historical record of apartheid-era crimes.

Challenges:

- Many perpetrators who received amnesty never faced criminal justice.

- Reparations for victims were delayed, causing frustration.

- Some communities felt that reconciliation favored perpetrators over victims.

2. Canada’s Truth and Reconciliation Commission (2008-2015): Addressing Indigenous Rights Violations

For over a century, Canada’s Indigenous children were forcibly taken to residential schools, where they faced abuse, forced assimilation, and neglect. In 2008, Canada established a Truth and Reconciliation Commission to document the atrocities and provide recommendations for reparations.

- Public testimonies helped expose the abuse Indigenous children faced.

- The government formally apologized and provided financial compensation to survivors.

- Truth-seeking led to the creation of reconciliation programs in education, healthcare, and governance.

Successes:

- Canada’s TRC recognized systemic oppression and racism against Indigenous people.

- Government policies were reformed to include Indigenous representation.

- National acknowledgment of past crimes created a foundation for reconciliation.

Challenges:

- Many Indigenous communities felt reparations were insufficient.

- Some perpetrators of abuse were never prosecuted.

- The psychological impact on survivors continues today.

Each of these commissions has demonstrated that acknowledging past atrocities is an essential step toward building sustainable peace and trust among communities.

A National Effort Beyond International Influence

While the United States was a key proponent of these resolutions, it has since withdrawn from the UNHRC. However, Sri Lanka’s pursuit of transitional justice should not be dictated by international pressures alone. Justice should be pursued because it is necessary for our society—for our people, our victims, and our future.

The Importance of a TRC in Sri Lanka

A Truth and Reconciliation Commission is essential for:

1. Giving victims a voice – Many have suffered in silence, and a TRC would provide them a platform to share their stories.
2. Promoting national unity – Acknowledging past injustices is crucial for healing divisions.
3. Ensuring non-recurrence – Institutional reforms stemming from a TRC can prevent future violations.
4. Establishing an objective historical record – Documenting the past is key to learning from it.

Conclusion

As future lawyers, you will be at the forefront of upholding justice and human rights in Sri Lanka. It may be said that the establishment of a Truth and Reconciliation Commission is not just a legal necessity—it is a moral imperative. The Nawaz Commission Report has laid the groundwork for this vital initiative, and it is now up to us to ensure its implementation.

Thank you.