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The truth commission is one of the most popular transitional justice devices implemented by states in the aftermath of mass crimes or government repression. These commissions are, however, incredibly diverse.
While all truth commissions make arrangements to hear witnesses, the ways in which witnesses engage the investigating body vary. Thus, hearings for the Chilean commission were held almost entirely behind closed doors, while a large number of other commissions have included public sittings. Many commissions including those in Argentina, South Africa, Peru and East-Timor painstakingly collected thousands – and in some cases, tens of thousands – of witness and victims’ statements through researchers working on the ground.
Some commissions – like in South Africa and East-Timor – actively seek out the voices of perpetrators, while others do not. There is also wide diversity in terms of the nexus between truth commissions and prosecutions: some commissions and their reports – such as in Guatemala – were used directly as evidence in subsequent trials; whilst other commissions were not designed to feed into prosecutorial processes. Clearly, discussions on the kind of truth seeking mechanism suited for Sri Lanka will have to grapple a number of knotty institutional design questions, in respect of which there are numerous comparative experiences from which to draw inspiration.
It is important to note, however, that the issues raised above – the institutional design questions – are second order questions. That is, to answer those issues, a set of more fundamental questions must first be answered. These first order questions go to the kind of truth that needs pursuing, and how truth-seeking is conceived within a broader transitional justice strategy.
The pursuit of truth is applicable at the personal, institutional, and societal levels. By the personal dimension, I refer to individual victims’ and survivors’ right to know the circumstances surrounding the violation of their rights, and where relevant, information relating to the fate of their loved ones.
The institutional dimension concerns the right of victims and broader society to know the patterns of behaviour, policies and practices within institutions such as the police and military responsible for the commission of gross human rights violations. Finally, the broader societal dimension of truth telling refers to the need for society to embark on a difficult and introspective journey in which the deep social cleavages that sustained brutality and violence are exposed and explored.
In this piece, I attempt to identify the types of truth-telling most urgently needed in Sri Lanka, and accordingly, the types of institutional arrangements that ought to follow. The article represents an initial contribution to what will hopefully be a long and rich conversation in Sri Lanka on the types of truth telling necessary, as well as the institutional designs needed to chart a meaningful course towards reconciliation.
Truth telling for victims and survivors
At the personal level of ensuring the right of victims and survivors to truth, there is a desperate and urgent need to ensure that the truth about the disappeared and missing persons is unearthed; with a view to discovering and releasing persons in unauthorised detention, or where the person is dead, identifying the way in which the death occurred and the location of the remains, if any.
To meet international standards, such a process must be independent, effective, professional, keep family members informed as to the progress of investigations, and be empowered to conduct on-site and forensic investigations. In this regard, it is clear that the ongoing Paranagama Commission on Missing Persons is utterly inadequate to provide answers on the fate of the disappeared.
The lack of a coherent basis for inviting selected complainants to provide evidence in public sittings; the shockingly flippant and perfunctory nature of the questioning by the commission; the failure to exercise its limited quasi-judicial powers effectively by frequently summoning state officers; the lack of any relevant expertise in forensics among commission members and their staff; and structural flaws in the Commissions of Inquiry Act doomed the commission from the outset.
However, given that the Commission has received over 20,000 complaint letters and heard some of these complainants at public and in-camera hearings, the records of the Paranagama Commission could help build a useful archive to guide the efforts of a reconstituted investigative body. Such a body must be fundamentally different to past commissions of inquiry, which have treated public hearings as an end rather than a means to reaching the truth. It should be vested with broad investigative powers: to search premises, summon witnesses and suspects, and seize relevant evidence.
Ideally, such a body will involve, but not be limited to, the participation of experienced law enforcement officers with a track record of independence. To ensure credibility with the public and victims, the body must also be staffed by civil servants, human rights activists and relevant forensic experts, including international experts where necessary. This body must deploy investigators across the country but particularly in the north and east to pursue evidence.
The process may also contribute to prosecutions through evidence collected, whilst low level perpetrators collaborating with the investigation may be considered for prosecutorial immunity deals and plea bargains.1 Because victims must be central to the process, a victims and witnesses section responsible for liaising and protecting victims and witnesses will be necessary.
The unwavering focus of the investigation must remain on finding the missing, and where the person is dead, providing an account to the families of the circumstances surrounding their death in a way that enables closure.
Truth telling about institutions
At the institutional level, truth-telling can be useful in exploring the role of state institutions in perpetuating violent repression and committing mass atrocities. The short experience of the Maithripala Sirisena-Ranil Wickremesinghe Government demonstrates that political change does not necessarily result in changes in police and military attitudes, practices or patterns of repressive conduct.
Sri Lanka’s State institutions – particularly those involved in counter-insurgency activity over the last three decades – have grown accustomed to a level of everyday brutality that this country cannot afford to live with. This brutality has been on display in the north and east, but also in tragic ways in the south.
To ensure long lasting change, it is vital that the Sri Lankan populace – but particularly members of the Sinhala community – are exposed to the ways in which systematic crimes were committed and brutalities unleashed by State institutions that have been valourised to the point that the public is unable to accept that they were responsible for mass scale abuses.
This process must be a deeply ‘domestic’ or ‘internal’ one, in that it is seen as part of the democratic change for which the country voted in January. To paraphrase Michael Ignatieff, this truth seeking must be aimed at narrowing the range of permissible lies told about the conduct of State institutions. But what would such a process look like?
A truth commission may be one option, but it may also take the form of a parliamentary committee or executive working group. Whatever institutional form it takes, it must aim to creatively change perspectives by shining a light on the abuse of authority and human cost of unfettered impunity. This truth-telling process must be distinct from a formal inquiry into the violations that occurred during a temporally defined period. 
In my view, yet another formal inquiry that is solely mandated to investigate and report on the facts surrounding crimes committed during the last stages of the war is unnecessary at best, but will also likely be harmful. The upcoming UN investigation’s report on Sri Lanka will, in the form of other UN inquiry reports, delineate the scope of violations committed by both sides and classify those violations under international criminal law.
Further, in the event criminal prosecutions are conducted in respect of international crimes – as they should – investigations for the purposes of those trials will also need to be undertaken. Thus, there does not appear to be a need for yet another fact-finding investigation for the purposes of yet another report that deals with the same allegations. Instead, the next logical step is an effective prosecution strategy that utilises evidence already collected by prior domestic and UN investigations, and a complementary truth-telling strategy that creatively addresses Sri Lanka’s unique social and political challenges.
Truth telling about society
Finally, at the societal level, there is a need for a process of deep introspection in which all the sides in Sri Lanka’s ethnic conflict come to terms with the violence and crimes committed in their respective names. Such a process must focus on the root causes for the conflict, the factors perpetuating it, and ways in which conflict transformation must occur. Since the focus is on systemic and underlying issues, this type of truth-telling process could be much broader in temporal scope, and in Sri Lanka’s context, even go back as far as the early ’70s, or even the independence era.
The goals outlined above certainly require a national process of reckoning, but there is also a need for processes within each community that provide time and space within which we soul-search, struggle, debate and overcome the past. This requires deep and reflective work on the rise of competing violent forms of nationalism within our communities, the debasing of our cultural traditions that teach tolerance and non-violence, the breakdown of social checks and balances, and the coarsening of the social fabric.
An additional benefit of a devolved process of truth-telling is that it may, as Will Kymlicka argues of transitional justice processes in divided societies, ‘provide lessons for citizens in a newly democratic multination state in how to learn to live with the ambiguities of contested nationhood.’
Again, a truth commission may play a role in achieving societal truth telling, but the process must be much broader and extend beyond formal processes. It will ideally involve a combination of artistic introspections, social scientific study, faith-based initiatives, revision of school curricula and official pronouncements including apologies.
Conclusion
The pursuit of truth in Sri Lanka must, as this article contends, be tailored to the specific social and political context in the country. This requires a broad and honest conversation on the types of truths that need unearthing in Sri Lanka, with a view to solving the chronic political and social problems that gave rise to and perpetuated the conflict. In doing, so the voices of victims and their needs must be heard, understood and factored.
Many governments have resorted to truth commissions as a central plank of their transitional justice strategies, with varying degrees of success. As I have attempted to clarify in this piece, there is no ideal model design of a truth commission. Instead, the institution’s design must be primarily be contingent on some prior consensus on the types of truth-telling a society needs and wishes to pursue.
In my view, the important and urgent truth-telling needs that we face are with respect to the fate of the disappeared and missing; the role of State institutions in mass scale human rights violations and atrocities; and our collective responsibilities as members of community and ethnic groups for fostering – and indeed supporting – the commission of unspeakable atrocities on ourselves and on each other.
Once we reach some consensus on the types of truth-telling we need, the work of designing institutions to reflect those needs can begin in earnest. Thus, there can be no easy routes and quick fixes. The process of debating, designing and implementing truth initiatives will require patient consensus building, dedicated activism, visionary political leadership and the stamina to overcome inevitable roadblocks. It will be difficult, but it is a process for which we are in desperate need.
(This article is the second in a series by the author that focuses on the set of measures that together form the core of Transitional Justice. This article deals with truth telling initiatives including truth and reconciliation commissions. Click here to read the first article.)
Footnotes
i Prosecutorial non-prosecution arrangements for those collaborating with investigations into international crimes are distinct from blanket amnesties, which are illegal under international law and violate states’ duty to prosecute and victims’ right to justice.
