Part III: Would reconciliation process work in post-war Sri Lanka?
By Satheesan Kumarasamy
Aug 7, 2015

The African National Congress (ANC) fought for freedom but their struggles were met with violence of the government led by the British Empire that took the lives of thousands of people. Even F.W. de Klerk, president of South Africa in 1989, admitted the failure of apartheid policies.

After South Africa emerged from the long period of totalitarian rule (aka apartheid) into a democracy, there was urgent need for reconciliation. The creation of the TRC in 1995 was crucial because it was aimed at promoting national unity and reconciliation in the soul of understanding and coexistence, to transcend the conflicts and divisions of the past. This commission was a milestone compromise between the ruling National Party and the ANC for sustainable peace in the country.

The objectives are soft in nature because they were not meant to punish the perpetrators of the crimes; rather, they were meant to cool down the sentiments of the victims and bring them into society so everyone could live peacefully. The uniqueness of the commission was that it included experts from various political backgrounds, human rights activists and others, including lawyers, theologians, historians, social workers and psychologists.

The positive thing was that the community engagement created a sense that community members could directly take part in telling their stories so they could get justice. The commission was able to facilitate reconciliation meetings where different elements found common ground, which led to reconciliation between victims and perpetrators, reconciliation at the community level and promoted national unity to some extent. The truth telling often led to people seeing each other in a different light. These gestures, coupled with the restoration of dignity that the public acknowledgement of victims represents, were fundamental to ensuring that people began to own the new culture of democracy and human rights and restore credibility to state structures. People have the tendency to forget, but their pain should be relieved by speaking out, as this is common in normal life. The case of South Africa is a good example.

Restorative justice is a promising theory, so it is important to see how it panned out in South Africa's crime prevention and criminal justice efforts. Baitley (2002) argues it is necessary to consider the charges against this approach. He argues that "restorative justice does not fit the thinking of legal practitioners" and says that "restorative justice is a soft option that ignores the need for punishment."

Baitley further says that "restorative justice leads to net widening in that more offenders get drawn into the system than would otherwise be the case." He explains that "restorative justice has generally not been creative and sophisticated enough in its application to address the issues it claims to" and he further says that "many individual victims are not prepared to participate in restorative justice processes but are prepared to settle for compensation directly-victims want retribution, not restoration." His argument is well taken because he says "the level of anger in South African communities at present is so high that people are not ready for restorative justice processes-they want quick fixes," so he says "restorative justice is not appropriate for dealing with more serious cases such as rape, murder and domestic violence."

Finally, Baitley says that "restorative justice overlooks and minimizes the seriousness of crime". South Africa's situation was different because the minority ruled the majority, and justice was provided by the successor regime that came to power. This was led by the majority of the people and the ANC did not want to alienate the minority that once ruled the country. Also, the ANC did not want to antagonize the minority by punishing them through the criminal legal system, as that would further deepen conflicts. So the soft method, the restorative method, is a good one and was a great tactical tool to calm down all the communities. The restitution approach is a new phenomenon.

As Baitley (2002) points out, the restitution approach has economic and political schools of thought committed to a strong view of the minimalist state, adding that government should intervene as little as possible in society, unlike the restorative approach where the government should be as heavily involved as the public. So Baitley (2002) argues that the restitution approach essentially reduces criminal law to civil law and removes the moral concept of wrong.

(To be continued)

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