TRC, Hybrid Courts and transparency GOSL’s options regarding
Posted on September 18th, 2015

By Uditha Devapriya Courtesy The Nation

Processes are rarely perfect. They have their champions. They have their critics. Very rarely do mechanisms and structures created to address reconciliation achieve everything and anything they want to achieve. Those who commend one mechanism over another, then, are either myopic or silent to this truth. This is the case whatever the context is and whatever the aims of such structures are.

The Government of Sri Lanka (GOSL) has over the years expressed its opinion of reconciliation. The Lessons Learnt and Reconciliation Commission (LLRC), its critics used to say, went beyond that mandate. Reconciliation was however not an end-all, but a means to that end, and no amount of pilfering with it could hide one salient fact: that if we did not want outside agency to demand for accountability, we had to deliver and deliver fast. That didn’t happen.

Mangala Samaraweera knows his words. He is not a yes-man as his predecessor was and for this reason he is capable to achieving what the LLRC could have achieved, but didn’t. Read his speech at Geneva, for instance, and you will realise that for all his flowery commendation of the current government’s stance on inter-ethnic amity he subtly hints at what the previous administration used to rant and rave about: that domestic mechanisms to address grievances from a 30 year-old war cannot and will not survive with outside intrusion.

Words however are easy. Action is not. So when Prince Zeid Ra’ad Zeid Al-Hussein (who seems to have a gripe with Sri Lanka just as his predecessor Navaneethan Pillay did) demands for a hybrid court, structured on the Nuremberg trials and hence focused on retributive justice, the reply from the government was less than satisfying. Gone was Samaraweera’s subtle chiding of international community; the letter was more concerned with commending the Prince’s remarks and reassuring him to wait, wait, and wait for more.”

First of all, if the government wants to achieve reconciliation through a National Plan and Mechanism, the Nuremberg trials (achieved through hybrid courts) is the last benchmark it must base itself on.

Secondly, as pointed out earlier, these processes are not perfect. The rift between retributive and restorative justice, reflected in the gap between Nuremberg and South Africa, is not so great when factoring in what failed in both instances.

That’s just one part of the story though. Among the TRC’s failures was its gross mishandling of outcome, that is the granting of amnesty to many key figures considered to have committed and sanctioned acts of hatred against the Black community.

The point is that we have been playing around with our version(s) of what TRCs should really represent. Let’s not forget, after all, that inasmuch as the likes of Navi Pillay and Darusman were genuflecting to pro-Eelam mythmakers (silently of course), the government of the day refused to listen to them and challenge their myths, thus leading to a no-win, Cold War-like situation where irrational nationalism rather than rational internationalism was privileged.

So what’s the road ahead? It is clear (starkly so) that no TRC is going to make everyone and anyone happy. Self-styled intellectuals who trash Sinhala Buddhism will have to be included in it as well, but don’t expect fairness to come from their side. As regrettable will be the tendency of anti-devolutionists and anti-13A howlers to inject rhetoric rather than reason to their submissions. Neither side gets off the hook here, therefore.

Golden rules cannot be applied to suit every context. In the case of our to-be TRC, what needs to be pointed out is this. Firstly, getting rid of the victor’s justice syndrome” which visits and revisits Commissions like this cannot duplicate privileging the other side”. Equality has as much to do with affirmative action as the UNP’s brand of capitalism has with that of the Republican Party in the US. The one does not mean, or lead to, the other. This will not make some people, particularly those Buddha-bashing moderates”, happy. That can’t be helped.

Secondly, the process should be open and transparent enough to convince people like Hussein to lower his demands. There was a time when he and his ilk wanted an international probe. If with US support (for us), he still wants a hybrid court, then achieving his targets with a domestic approach (that is, justice without amnesty, albeit this should NOT license the finding of war crimes”), then (who knows?) he may lower his demands even more, crushing the fantasies of the pro-LTTE Diaspora and shutting them up for good.

Processes need miracles to be perfect. They don’t make everyone happy, but then again they don’t have to. Perfection on this count will be judged on how far the local mechanism to handle reconciliation achieves its outcome(s). If this is what matters, then both local and foreign players may find that miracles are not long in coming.

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