Legal Study: Reconciling Truth and Gender – Lessons for Sri Lanka

Law & Society Trust Review, 2011

This legal study [download here] explores the scope of the discrimination facing Sri Lanka’s largest group of war-affected survivors – Tamil women in the North and East of the country – and the need for gender-sensitive truth commissioning following the country’s three-decades of conflict. It assesses key legal and practical obstacles to achieving this according to the international legal framework on non-discrimination, and briefly proposes ways to place Tamil women more centrally, and therefore legally, within the transitional narrative.

The paper occupied the full December 2011 volume of Sri Lanka’s Law and Society Trust Review, a monthly legal journal edited by renowned human rights lawyer, Kishali Pinto-Jayawardena (please see Editor’s Note, below), but was featured in various potted forms, such as for popular Sri Lankan media site, Groundviews, and on Open Democracy. The former was cited, as a sound analysis, in the response of the Tamil National Alliance to Sri Lanka’s Reconciliation Commission report in 2011.

The original topic was researched as part of an MA degree in Human Rights Law at the School of Oriental and African Studies, London.


Editor’s Note

Sri Lanka’s past lessons with Commissions of Inquiry, some of which have been positive but most, overwhelmingly negative, are applicable and relevant without adoubt to victims of all ethnicities and all communities in the country. This is a fact that must be understood in all its complexity though the perception may be that their relevance is limited to the minority communities.

Many of these bodies have been extremely politicized in their composition and functioning. Evenwhere a Commission of Inquiry functioned reasonably well, its recommendationswere routinely ignored by the administration of the day, despite the considerable benefits that may have accrued to citizens through full implementation. This is a reality not limited to a particular government or a particular executive, which again may not reflect the common perception.

The LST Review in its concluding Issue for the year 2011 publishes a reflection on truth telling and gender by researcher Jo Baker which examines the manner inwhich the critique of Sri Lanka’s Commission of Inquiry may be expanded, by taking into account the failure by such bodies to address gender discrimination issues. As she points out, though Commissions of Inquiry within Sri Lanka’s specific legal context cannot strictly be defined as truth telling mechanisms, nevertheless, they retain some relevant elements, such as gathering a credible picture of human rights violations.

Using international best practice, she looks at a gendered experience of conflict and displacement regarding women belonging to the ethnic Tamil minority from the broader viewpoint of discriminatory practices as well as their treatment by Commissions of Inquiry. While her analysis is therefore limited in terms of its subjects, it may well be opportune to reflect that the key areas identified by her for change in future experiments of this nature in truth telling, apply across the board to women of all ethnicities. As Sri Lanka has learnt from past experience, nominal representation of womenwhether in commissions, in politics, in administration or in the judiciary does not ensure that the needs and concerns of women, which demand specific and specialtreatment, are addressed.

Insofar as Commissions of Inquiry are concerned, their mandates must reflect this, their resources must allow for this and the general environment in which they function must embody this quite apart from the superficial and nominal inclusion of a woman as part of the composition of the body.  Sri Lanka has yet to see this type of sensitivity in the establishment and functioningof inquiry bodies of this nature and the writer is quite correct in making the point that the critique of a commission process must embrace questions of gender inclusivity as well as the commonly emphasized focus on independence and effectiveness. Comparative experience has shown that these exercises may be structured verydifferently from what Sri Lanka has known.

As she comments: Recently designed truth commissions in Sierra Leone and Timor Leste have begun to build an explicit reference to gender into the legal instrument that creates them, ensuring dedicated staff, resources and guidelines, and more comprehensiveinvolvement by female survivors. This has allowed for more consistent investigation into the privatized and structural harms that come from conflict, for the proper cross distribution of these findings in the report and – essentially – in any follow up action.

And ideally, the mandate must include not only violations in the public sphere but also violations in the private sphere, as this is where violence against women is centered, particularly in the context of conflict and displacement. Commissioners themselves who are appointed to these bodies must realize the importance of these concerns. Gender sensitive procedures of protection are imperative for such efforts. This paper is a substantial contribution to the existing debates of truth telling in Sri Lanka and it is hoped, will provoke a more extensive study across ethnicities inorder to better inform the public mind.

– Kishali Pinto-Jayawardena