Confronting the Complexity of Loss

programmes have also explained the interrelationship between restoration of victims and
the accountability of perpetrators. 130 Meanwhile, the UN’s Basic Principles do not
explicitly rule out such interplay. They only suggest that restorative justice programmes
include the voluntary participation of victims and offenders, and that restorative justice
processes take the form of mediation, conciliation, conferencing or sentencing circles. 131
The latter form—used by First Nations people in Canada—in fact reflects the potential
for the integration of retributive elements such as sentencing into restorative justice
programmes and vice versa. 132 Accordingly, any attempt to automatically dichotomise
justice into ‘restorative’ and ‘retributive’ forms is normatively problematic.
The third concern relates to the claim that restorative justice is a uniquely indigenous
form of justice. Notwithstanding the precise definition of restorative justice, scholars
including Kathleen Daly have sought to challenge its claim to indigenous authenticity.
She effectively dispels what she terms the ‘myth’ that ‘restorative justice uses indigenous
justice practices and was the dominant form of pre-modern justice’. 133 Such an
observation is entirely relevant to Sri Lanka. A glimpse into the historical penal practices
of Sri Lanka during pre-colonial times reveals a distinct punitive focus. 134 The idea that
restorative justice resonates with pre-modern justice practices in Sri Lanka is therefore
unconvincing.
The narrative on the so-called ‘Sri Lankan approach’ is accordingly based on a limited—
perhaps overly simplistic—understanding of restorative justice. The narrative prioritises
the leniency of punishment, downplays the preferences of victims and survivors, and
exaggerates the indigenous authenticity of its claims. Therefore, at the very outset, the
narrative appears to be normatively incompatible with a contemporary understanding of
restorative justice.
Scholars have already called into question the empirical validity of this narrative. Niran
Anketell argues that there is a ‘wide consensus amongst Sri Lankan Tamils that full
accountability ought to be pursued.’ 135 He opines that recent election results in the
Northern Province consistently demonstrate the desire amongst Tamils for an
independent accountability mechanism to investigate international crimes. 136 Thus the
fact that not all Sri Lankans share the former government’s views on restorative justice is
repeatedly demonstrated in certain election results. For instance, the election statement of
the Tamil National Alliance prior to the 2013 Northern Provincial Council elections
130 See Lawrence W. Sherman & Heather Strang, Restorative Justice: The Evidence (2007).
131 UN Basic Principles, op. cit. at Operative Clause 2.
132 Sherman & Strang, op. cit. at 32.
133 Daly, op. cit.
134 For example, see Robert Knox, An Historical Relation of the Island Ceylon in the East-Indies (1681),
Chapters V and IX. The author discusses crime, punishment and the legal system in Sri Lanka particularly
in the Kandyan Kingdom, which was not colonised at the time.
135 Niran Anketell, ‘Sri Lanka and the Urgent Need for Accountability’ [April 2012] Oxford Transitional
Justice Research Working Paper Series.
136 Ibid.
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