By Nigel Nugawela

“The records are crucial to hold us accountable. They are indispensable as deterrents against a repetition of this ghastliness and they are a powerful incentive for us to say, “Never again”. They are a potent bulwark against human rights violations. We must remember our past so that we do not repeat it.” Archbishop Desmond Tutu, October 21, 2003

The Bill on the Commission for Truth, Unity and Reconciliation (CTUR) in Sri Lanka was finally issued in the Gazette on January 1, 2024, after months of announcements by the government and the holding of a few tokenistic consultations. A number of civil society organizations and various collectives responded to these announcements, issuing statements on the futility of establishing another commission, its inadequacy in terms of meeting the demands of affected persons, the importance of confidence-building measures, and on other issues. In July of 2023, I wrote to President Ranil Wickremesinghe with specific recommendations related to the management of records by the proposed CTUR and the establishment of a nexus with the Sri Lanka National Archives (SLNA). Unsurprisingly, none of these recommendations have been addressed by the Drafting Committee. Despite the snub, it is worth recounting some of them since this is a matter of public interest, specifically to affected persons, and, at some point, someone will perhaps inquire as to why these issues weren’t thought of before.

Before I do go into the substance of the recommendations, I reproduce below an extract from the letter that stresses the responsibility of the government, as a first step, to deal with the layers of information and evidence created over several decades.

“During the public consultations conducted by the Consultation Task Force on Reconciliation Mechanisms (CTF), a number of submissions dealt with the issue of ‘commission fatigue’ and of the re-traumatization of tens of thousands of affected family members who made repeated submissions to CoIs, some over a period of two decades. One submission to the CTF stated, “…we have faced a number of presidential commissions…But still, nothing has come out of it…All this information is already there.

“The Government of Sri Lanka must recognize the continuing utility of the records of previous commissions of inquiry and develop systems to ensure their accessibility and usability for any future processes. A more systematic approach is required to prevent the wastage of resources and further inconvenience as well as harm to affected persons and communities.”

July’s recommendations

Due to space constraints, I will summarize some of, in my opinion, the most important points in the letter. These should ideally be addressed through follow-up consultations or in Parliament if any sitting member is interested enough to take it up. The commentary below each recommendation includes some additional thoughts and points.

1. Transfer all records created, received and maintained by the proposed CTUR to the SLNA

The Bill does not indicate what happens to the records of the CTUR once its mandate ends after five or six or seven years. Where do the records go? The worst thing that can ensue is that the records end up in the bowels of the Presidential Secretariat or the Republic Building. Since s. 11 of the National Archives Law will not apply to the CTUR, explicit provision will need to be made to ensure the transfer of all records to the SLNA.

The absence of language on the fate of the CTUR’s records is indicative of a half-baked political project. Louis Joinet and Diane Orentlicher’s thinking on the Duty to Preserve Memory (Principle 3) should, ideally, be upheld more substantively and the government should show more respect for the records of affected persons.

“A people’s knowledge of the history of its oppression is part of its heritage and, as such, must be ensured by appropriate measures in fulfilment of the State’s duty to preserve archives and other evidence concerning violations of human rights and humanitarian law and to facilitate knowledge of those violations. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against the development of revisionist and negationist arguments.”

One option would be to allow the CTUR to fold into an archival centre. This could be independently managed and privately resourced but supported by the SLNA. An independent space would allow human rights archiving approaches to be adopted and ensure that the centre is mandated to process and enable access to, over time, the records of affected persons who engaged with the CTUR. The records of previous CoIs could be transferred from the SLNA to this centre. To get to this stage would, however, involve a vision for the future of the records and an understanding that – beyond its temporary structures and mandate – the CTUR’s records will continue to have utility for specific purposes, other mechanisms, communities, spaces, and temporalities.

2. Establish a Records Management Unit to ensure the systematic management of all records created, received and maintained by the proposed CTUR

South Africa’s Truth and Reconciliation Commission (TRC) established a Records Management Department and an Information Management Department, respectively. The database of the TRC was managed by the Information Management Department whilst the Records Management Department was tasked with managing “confidential documents such as amnesty applications and gross human rights violation statement forms, to Commission newsletters, posters and pamphlets… research and special reports, transcripts of the Commission’s hearings, confidential, secret and top secret records.” The very clear divisions of labour should be read as an acknowledgement of and respect for what each field of management brings to the table.

The Bill on the CTUR prioritises the establishment of a Data Management Unit and, quite alarmingly, assigns it the responsibility of “archiving of materials” and the “preservation of records”. In general, s. 29 (1) and (2) and s. 13 (p) appear to have been influenced by an information technology perspective, which, if true, is a red flag. CTUR won’t be ‘archiving’ its records but rather managing the records created and received during the exercise of its functions. The use of the term “archiving” in the Bill is conflated with ‘storage’, which is a narrow view adopted by professions extraneous to archives and records management. All records of enduring (and probative) value must eventually be archived – appraised and selected, arranged and described, and preserved – when they are transferred to an archival repository – to be processed as archives – following the conclusion of the CTUR’s mandate.

Nevertheless, the proposed CTUR must preserve the records in its custody. But that work should be done by trained archivists and records managers. In the case of born-digital records, very few professionals in the country are aware of digital preservation workflows. CTUR will require advice on file formats, technological obsolescence, integrity checks, backups and other digital preservation activities. Taking the above into account, the overall management of the CTUR’s records must be explicitly assigned to a Records Management Unit. The government needs to do better in recognising the very specific body of knowledge represented by archives and records management. This is not something that can be made up on the fly. An intellectual history spanning centuries, professional associations, standards, codes of ethics, policy-making and law-making on archives and records, varied areas of practice and established as well as emerging fields of study make and remake the discipline. Sri Lanka is poorer for disregarding and disrespecting archives and records management.

Following on from the Office on Missing Persons and Office for Reparations Acts, the inclusion of provisions on creating databases has always been a strange imposition in terms of prominence in legislation. As a means to organise, structure and analyse information, databases are important tools. But I would contend that, on the one hand, the inclusion of database creation in legislation constrains the institution by implying that the database is one of the ultimate products of a mechanism’s work and, on the other, it comes at the expense of more foundational labour, such as systematic records management. The development and use of descriptive systems, which is a fundamental part of the processing work that archivists and records managers perform, will make it far easier to build a database and support the classification of violations. Unfortunately, the way in which this has been approached is a clear case of putting the cart before the horse. If one reads between the lines of the OMP’s annual reports, there is a sense of an inability, perhaps due to a lack of expertise, to develop an approach to working with the records of previous CoIs. CTUR will face the same challenges if the above issues aren’t rectified at this stage.

3. Work with SLNA and other bodies, public or private, to receive direct technical assistance and to develop systems, frameworks, policies and procedures in relation to the use of the records of previous CoIs

The Bill provides for the CTUR to “draw on the work” of previous CoIs [s. 13 (l)], receive technical assistance from any “persons or institution or organisation” [s. 13 (k)] and appoint advisors (s. 30). But it isn’t quite clear, other than for s. 13 (s), which provides for CTUR gathering “…any information…through access to archival material”, whether this will explicitly involve working with the records of CoIs. And even if the CTUR does decide to work in that way, I don’t think the scale of the task at hand is really understood. It’s a bit more complicated than just ‘gathering information’. Any attempt to deal with existing information and evidence would require a working arrangement with the SLNA, which should ideally be explicitly provided for in the Bill in addition to s. 13 (s) and (w) and s. 40 (6). The OMP’s annual reports highlight an administrative quagmire in relation to accessing the records of CoIs, which would have to happen in line with s. 23 of the National Archives Law, No. 48 of 1973 (as amended). To be clear though, this is not only about access but also actual processing work that still needs to be done to ensure the interpretability and efficient retrievability of the records. This ranges from trying to understand how previous CoIs have gone about arranging their records, including compiling case files, to redescription processes to develop more comprehensive finding aids that facilitate access and use. As extensive inventories or guides, finding aids provide information about the content, context, structure, and other elements of archival collections. The mess of multiple CoIs duplicating case files and inadequately organising as well as classifying records must be addressed through archival labour.

4. Right of affected persons to access their records

Notwithstanding Article 14A of the Constitution, it would be beneficial to provide a clear pathway of access (devoid of overbroad restrictions) specifically for affected persons who submit their own records, who provide testimony to the CTUR and who require archives and records relevant to their cases. There must be some provision that affirms their right to freely and securely access these records whilst in the custody of the mechanism, the Sri Lanka National Archives or of any other public authority. I do not think it is superfluous to include this language in the Bill, even with the Right to Information Act in force, since information, whether it is provided in confidence or in a public setting, must still be accessible to those who provided it or need it in the first place. This isn’t, unfortunately, always the case. And it shouldn’t be discretionary. In other contexts, struggles over access scupper the potentialities of truth mechanisms. According to Section 6 of the Principles of Access to Archives developed by the International Council on Archives (ICA), “Institutions holding archives ensure that victims of serious crimes under international law have access to archives that provide evidence needed to assert their human rights and to document violations of them, even if those archives are closed to the general public.

Archbishop Tutu to Thabo Mbeki, “We dealt with as much of the evidence as we could.”

Other recommendations and concerns

Firstly, assigning responsibility for “maintaining custody and preserving all records, documents and materials” [s. 26 (3)(b)] to the Director General, as Chief Executive Officer of the Secretariat, is important. It means decision-making on the matter can happen at a high level and there can be accountability for serious lapses. But the Director General will probably not be a trained archivist and records manager. This means that expertise will need to be sought to establish a records management policy and other relevant guidelines very quickly to avoid any arbitrary decision-making on records management. This should ideally happen in consultation with the SLNA, which functions as the apex body for archives and records management.

Secondly, the CTUR must inquire into any alleged destruction and concealment of records by public authorities since this has an implication for the CTUR’s mandate and its ability to access evidence required for investigations and inquiries. This was, for example, included as one of the functions of South Africa’s TRC under the Promotion of National Unity and Reconciliation Act 34 of 1995 (as amended): “determine what articles have been destroyed by any person in order to conceal violations of human rights or acts associated with a political objective” [s. 4 (d)].

Finally, limiting the CTUR’s scope to exclude violence connected to other conflicts, such as both JVP insurrections, and further to a period explicitly after 1983 is an injustice in and of itself. If we take the Embilipitiya case as an example, there are over 48 families who still want to know the truth about what happened to their sons. Despite the convictions of seven perpetrators (one of whom was later acquitted by the Court of Appeal), the fate of the schoolchildren was never established, and their remains were never discovered. Some of the convicted perpetrators still live today with the knowledge of what transpired between July 1989 and January 1990 in Embilipitiya. So, I ask the government: Do the families in Embilipitiya not deserve a “truthful, accurate…complete record” of the violations perpetrated against their sons? Any serious attempt to deal with our painful pasts must account as far as possible for all legacies of violence and violation.

A damp squib

Archives and records “…form the evidentiary infrastructure…” of a country. The kick in the teeth here to state-maintained human rights archives and records, which is very much part of that infrastructure, comes in the form of an absence of a position about what happens to them—extant over decades and imbricated with the record-making labour and struggles of affected persons.

If the role of archives and records management is not taken seriously (in addition to the other aspects of the Bill that will be critiqued over the coming days and weeks), the CTUR’s designers guarantee a blinkered approach to making this truth mechanism. Moreover, the proposed CTUR will repeat the mistakes of those established before it. And this is precisely why the Bill on the CTUR is a damp squib for human rights archives and records. In its current formulation, there is no grasp of how archives and records impact the lives of affected persons; no substantiative commitment to deal with the records of previous CoIs; no acknowledgement that state institutions may have potentially destroyed records to impede any future processes of truth-telling and accountability; no sympathy for the oppressive ways in which the state has historically taken records from and recorded experiences of affected persons and then restricted them under laws and regulations; and absolutely no vision for how archives and records related to human rights violations can be continually used to make sense of, reconstruct, redress and prevent the recurrence of past wrongs.

-Nigel Nugawela is the Archivist and Manager of the Access to Information, Memory and Evidence (AIME) programme at the Collective for Historical Dialogue & Memory (CHDM). This article was originally featured on groundviews.org