LLRC: Evidence given by Mr. Austin Fernando, Former Secretary of Defense on 18th August 2010

September 30th 2010

Editor, Groundviews

Dear Sir,

Evidence given before LLRC on August 18th 2010

I gave evidence before the LLRC which became very problematic. My evidence was inaccurately or partially reported, which resulted in many unwanted and underserved comments appearing in the public domain.

Having waited a month after bringing this issue to the notice of the Commission, and not hearing of any response, I thought it is time to tell what I really said at the inquiry and also to note that the biased reporting against me was both undeserved and unprofessional. I am basing my submission on the transcript and recording kindly provided by the LLRC.

I am sending this content to two English newspapers and Ada Derana in the hope that they will be gracious enough to publish it.

I am sending this to you for publication because I have seen similar testimonies of other key witnesses published on the site.

I thank in advance for your cooperation in this matter.

Yours sincerely,

Austin Fernando

Cc
Secretary LLRC- Reference my letter to Chairman LLRC dated August 27th” 2010- For information please.
Editor, Island – For information and necessary action, please.
Editor, Daily Mirror- For information and necessary action, please.
Web Administrator- Ada Derana- For information and necessary action, please.

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Lessons Learnt and Reconciliation Commission: Evidence given by Mr. Austin Fernando- Former Secretary of Defense on 18th August 2010

Chairman LLRC

Before we commence your representations I wish to outline the procedure that we adopt at this Commission of Inquiry. Any person who is making representations could make representations either in public or in camera. The choice is with that person. Thereafter, at the conclusion of your representations the Members of the Commission are entitled to ask you questions to clarify any matter that arises in the course of your evidence or any matter that is relevant to the warrant. But nobody else can ask you questions, and you can respond either in public or in camera. The choice is yours.  So this is the procedure which I wanted to outline before you commence your representations.  So I think you are giving your evidence not in camera but in public?

Mr. Austin Fernando

In Public. I thank the Commission for having called me to give evidence.

Basically I must start by saying that there are many reasons that could be adduced for the failure of the CFA and about people who are responsible or institutions or organizations, which are responsible for being that.  At the same time I must say that there were successes also, which have been derived from the CFA, but since your warrant is only to look at failures I do not want to be dealing with the successes. The successes and failures both are intertwined.

I have made a summary of what I have to say. It will take a little time, but anyway I have prepared some documents also to be given to you while in the process of giving certain things. Probably Commissioner Palihakkara knows about my book, which I have written. I have lot of references and Commissioner Rohan Perera also knows about it. Therefore, I will be quoting from that whenever it is required and I hope time will permit me to do all that.

When you take the failures, I thought that there are several headings under which you can address this.   One is the political situation, political reasons of this.  The weaknesses in the CFA as a tool have to be accepted. I don’t say that the whole document is faulty but there are certain aspects, which I will mention while we are going on. For example, clauses 2-2, 2-3, 2-4 and rest of it like that, if you see the ceasefire agreement, those are very good examples.  Now for example, 2-2 talks about vacating the places of worship  within 30 days of D-Day; and the schools within 160 days; and, the release of  public buildings- not release really, but to give a list  of names of places, but, that is in anticipation of release. Those are things which could not be done so quickly, because if you are taking the Forces out of those places, definitely you have to find alternative accommodation, which was not clearly available for us. So these are some of the things, which I think the draftsmen of the document should have thought much more in-depth before they did that. So like that there are weaknesses in that.

And then if you read Dr. John Gooneratne’s book where he says- I have referred to page 134 of my book –“It appears that on the sensitive subject of induction of weapons Mr. Balasingham had informed Mr. Solheim that the LTTE had sufficient military hardware, and were prepared to give an undertaking to the Norwegians that they would not be bringing in arms by sea.  They did not however want on to put this down in writing.  They have gone further and said they have no objection to the Government of Sri Lanka making a statement that it would take action to prevent such activities.” Having known LTTE for such a long time, I think in my book I have said, “However, if such promise was accepted by the authorities as reliable, I would call it- with all due apologies for harsh wording “total foolhardiness”. That is how I will feel about the weaknesses in maintaining peace in that particular area and to be having a ceasefire.

But, of course at the same time I must say that there are certain things where you have to compromise, not to this extent as it is. So I could say that type of weakness- going away from temples, going away from schools, that’s correct, going away from public buildings- but timing of it had to be thought of.

Then the second political weakness I find is non-inclusiveness in content to favor peace. Take one simple example due to time constraints. I take the case of conscription- conscription or de-commissioning for that. There is no mention about conscription whereas it is a big problem; humanitarian problem and a military problem. And if you take the de-commissioning, one day or other this had to happen and there should have been some basic initial work that could have been done at the time, because you are binding people- the LTTE- for some sort of a thing. They may have asked for certain, certain things, OK agree to that having discussed matters. So that was not there.

Then I find one weakness which is not even mentioned in my book. In hindsight, this was a problem of the youth, because it started with youth, and it’s the youth who were fighting for LTTE and it’s the youth who were fighting for the Government of Sri Lanka. So I consider it as a youth problem, related to youth, but there is no concern, which had been shown by both parties for that. I think, of course, it is in hindsight. You can come out with lot of corrections, I know. But, this is one thing which I find about inclusiveness.

But the inclusiveness is much worse when it comes to political groups. You take the Tamil political parties. We are getting into a ‘sole representative’ business. And therefore, we had a different way of looking at the whole problem.  And the Muslims: they were mentioned in the CFA. But they were, shall I say, (if you permit me to use that) ‘a secondary type group’ and this was not liked by the Muslims at all. So therefore, that type of weakness was there – the Muslim factor.

The undermining of the CFA’s good intentions: of course, that was while the CFA said that certain things should not be done to undermine the good intentions of the spirit of the CFA. There were incidents which we have seen, which were undermining that.  Take the sea affairs a little bit further away, where Commissioner Rohan Perera and I had been working together on certain things when we were having that. Take the simple thing like Pongu Thamil or putting up a Tiger flag in the heart of Vavuniya town, which is under government mandate/ government control. Those are very minor things when you look at, but they were creating problems in the minds of the military, the police and the public officers. And therefore, there would have been- I won’t say there were- definitely some sort of restraint in their own minds to handle their jobs in the proper way to run with the CFA. And that would have ultimately, finally in accumulation of those things would have mattered much to the support we received from them.

One of the biggest problems we had was the co-habitation or the political jealousies in the center. We had a President from the Sri Lanka Freedom Party; we had a Head of a Government from the UNF headed by UNP, and they were more or less fighting to get hold of the situation. Co-habitation was spoken of. Some people were trying to help them, but of course, I don’t think co-habitation took place seriously. They were trying to outwit each other. Of course, I know Minister Milinda Moragoda used to go and meet the President and speak about the matters that were taking place. That type of a thing wouldn’t have made much of a difference.

So much so, you will be surprised to hear that we met at the National Security Council -which was usually meeting once in a week or once in a fortnight under usual, normal circumstances- we would have met seven eight times for the whole of two years when the CFA was managed.  And that was also -I can’t tell you / the Commission what we discussed because of the secrecy I have to maintain- but as a general term I can say that was more or less a day to day affair, routine type of a meeting like. It was not a very serious meeting. I am sure Mr. Gotabhaya Rajapaksa who came here would have been meeting-of course that was the war times- many more times a week sometimes.  But then, when you have a CFA it is much worse than having a war situation, because to get the military who wants to fight, not to fight, in a way is a very difficult thing. To be keeping peace, to be concentrating on peace is a difficult thing. You should have meetings more often.  But that was that.

So the benefits- There were no killings, the freedom of moment, economic revival, Diaspora returns. We wouldn’t have had all those apartment complexes in Wellawatta if not for the CFA, I must say. Those are things which people don’t consider as important; the re-settlement of IDP’s to some extent, rehabilitation activities,  then world opinion changed towards Sri Lanka, international financing in 4.5 Billion dollars were ultimately pledged after two years. All those good things- I think most likely there would have been political jealousy. I can’t say, because I can’t speak on behalf of Madam Chandrika Kumaratunga, but there would have been, I could say, some political jealousy in her mind; that if this goes on for some more time there would have been- with all the weaknesses- certain problems. I think even Mr. Prabhakaran would have thought of the same way because when the Tamil youth, the Tamil people were welcoming this type of behavior from that end, he would have thought ‘I may not have the support’, and even the Diaspora would have turned around. Now the Diaspora is turning around according to the media reports, and if they are true, well that could have happened even on that.  Ultimately, we can say that national interest of having peace was overtaken by political interest.  That was one reason for the unsuccessful end of the CFA implementation.

Even the attitudes of the two parties- the LTTE and the Government- were not going in parallel. Prime Minister thought that he should be going on a step by step approach, which he stated publicly and I don’t know what he had in his mind, but he would have had lot of political manipulations, political ideas and political approaches in his mind.  At the same time, Prabhakaran I think wanted things to happen much quicker.

I quote from War and Peace of Anton Balasingham, who has said, “I could foresee the two major obstacles the government might confront in the future in seeking a reasonable solution to the Tamil issue.  The first is the Sri Lankan constitution and the second is the Presidency. I wondered if it would ever be possible for Ranil Wickremesinghe and his team of negotiators to resolve the intractable ethnic conflict within the parameters of an entrenched majoritarian constitution and without the consensus of a single minded, authoritarian President.”

So that is what the LTTE‘s point of view had been. Probably he was writing it in 2006 or so, but definitely he would have been looking at the past and he would have come to this conclusion. So LTTE wanted to get everything as quick as possible because they were not very sure of the stance of Prime Minister Wickremesinghe’s Government and the facilities they have with the President sitting on him. So therefore, I believe that this particular attitude of one step at a time and everything at the quickest time wouldn’t have clicked and that this attitudinal difficulty would have helped the crash of the CFA.

There were technical defects also. You have I think about five lawyers amongst the Commissioners. You know for a document like this there should have been some interpretations. Take a very good example- ‘political work’. But what ‘political work’ was not mentioned/interpreted in this particular CFA. So therefore, LTTE thought they can have offices, they can have this, they can have that, they can go to the Government Agents’ offices and they can do various, various  things like that, and when people went and crossed them, they always said ‘No, no. We have the right to do political work.”  This is a simple example. This is a word – political work. There is no interpretation given in the document; so these types of weaknesses were there.

The second point I take is the Military actions. I think there was limited consultation with the military authorities. So much so, I think, I can remember the Navy Commander and the Army Commander coming and telling me, having heard that there was something happening. They came and told me and these are not secrets. I put the whole thing in this book also.  Then I told them “OK, I will speak to the Minister” and I spoke to Mr. Tilak Marapana and we met Prof. G.L. Peiris at his residence with Mr. Tilak Marapana, myself, and Army Commander and Navy Commander. They were given a copy of the draft of the document and they said “We have problems.” What I earlier mentioned about schools and things like that. They were very positive about getting some good relief, I think. We were promised something, but I don’t think they got anything out of that. To that extent there was a consultation, but people just say, ‘There was no consultation’. But, I think it was not the consultation, but the output of the consultation that was more important for the military and they had their difficulties in managing this.                                     

Suspicion was always there, although the parties were saying that we want to be very friendly and having a political solution in mind and things like that. All that was said, but they were suspicious. I can remember under 1.10 when we wanted the military- we asked the military- “Are you willing to use the A9 Road and come across?” The military was never listening. I asked them twice, and the second time I can still remember General Balagalle said “No Sir. We have had very bad experiences” and came out with the experiences in Ampara, in 1990, I think.   I was thinking whether this Army Commander is telling me something which is a little bit exaggerated. I went through the file where the inquiry was held and I have quoted from that. Then there was enough reason for them to be suspecting the credentials of the LTTE and they were not willing to be accepting 1.10, because they were suspicious that they will be having problems.

And at the same time with lot of difficulties we gave certain facilities to them. I can remember when Union College premises were asked by Hon. Mavai Senathirajah, Late Raviraj M.P. and Mr. Gajan Ponnambalam, I went there. They were more or less pleading with me, and said “Sir, we want this school somehow, which can take about 2,500 to 3,000 children. They go to schools so many miles away. They spend so much of money. They waste their time; the children can’t eat. Why don’t you give it?” If you are knowledgeable about the geography, it is just near Telippalai Junction. When you stand at Telippalai Junction, you see it 75 meters away. This was not given. It was vacated. The Army camp was vacated and the buildings were there. People were not given that. It was a reasonable request. I can remember then Major General Sarath Fonseka was not willing to do that, but I ordered him to do that and he faithfully carried out. The reasons when I asked Sarath Fonseka was, he said “These people -the LTTE- will come in; creep in; they will do that; they will do this; and, they will take children away.” He had a suspicion that “they will do various nasty things, if you give in.” The LTTE was having the same suspicion. This is the way how the Military looked at LTTE in a suspicious way, and in turn LTTE looked at Military in a suspicious way.  When in Tenmarachchi and Tanankilappu areas when I released about 1,000 acres for cultivation after lot of pressure brought on Major General Fonseka. I found that the LTTE was not willing to do that. They were dissuading people from going and cultivating. And they did not cultivate those lands. And that was the suspicion both parties had.

And then the blatant violations of CFA and the difficulty to act against the violators: what could we do when someone breaks it; if the Military breaks it or if the LTTE breaks it? Because SLMM was a group of people who were very genuinely trying to do some work, but they didn’t have the power or the authority and the resources and they couldn’t use military power on them. I don’t say that every monitor should have a gun in his hand. They were doing it without anything, but there should have been some sort of a power to control them. Sometimes even in the Facilitator, we found that there were certain difficulties for the Facilitator to manage these people.

And then the LTTE attitudes: LTTE had not given up, although they had come into agreement with the Prime Minister of the sovereign state. They were thinking of a separate state and a separate military. They wanted a separate police force to be maintained. They wanted a sea area. They went to the extent of asking for a training area, which we didn’t give. Mr. Bernard Gunatillake and I just phoo-phooed the thing and we just didn’t allow it. That is the type of arrangement they were expecting us to be. That was a very difficult thing. You always start suspecting the other party. Even the LTTE leadership would have been suspecting us and we were also having our own suspicions about them.

We tried to do a little bit of normalization work according to the CFA, where we had the Part II for that. And in that we had the SHIRN; we had the SDN, we wanted to have the Local Authorities elections after Peace Talks. Then the De-escalation Plan. How we tried to do that, of course, the LTTE didn’t like it. This type of thing was not to be accepted and there were so many problems from our end; from the other end. For example from our end we had problems of money sometimes. The Secretary Treasury would not have been having so much of money and the processes of that were there. And from their end I can remember when Sarath Fonseka asked for the De-escalation Plan (of course, which hurt them very badly) it went up and the whole process we have planned to do was forgotten and Anton Balasingham issued a statement saying that ‘We have nothing to do with the SDN and the SDN is closed’ and we did not have any activity thereafter.

Sometimes we had very little co-operation from the LTTE, but it became a big problem especially after President Mahinda Rajapaksa took over; the Mavilaru, then later the Oslo talks where Palitha Kohona went to Oslo and he couldn’t be having these meetings and things like that. And sometimes things were done in such a way that it was very humiliating. For example, when Daya Master was brought with Military assistance from Omanthai to Colombo to be treated here in Colombo for his heart ailment or whatever it was, at that particular time they were taking sniper shots at soldiers. You know the humanitarian aspect of what the President wanted to do was blurred by the shooting of sniper shots taken on soldiers, in Vavuniya or some place like that. When this man is being taken with military intervention- that is the type of uncooperativeness sometimes we saw in some of these activities with the LTTE.  And we were doing it. I think even President Rajapaksa was doing it in the name of CFA, and we were doing certain things in the name of CFA. So that’s it.

Then I take the other third reason as Monitor and Facilitator. I think some monitors were weak, but some of them were very strong. I must say, I take my hat off to late Trond Furuhovde. He was criticized by people, especially in the Sinhala media here, as a man who has done so much of nasty things.  He may have done. I don’t know whether he had done or not. It is immaterial to me now. But, he had the courage to stand against Jon Westborg, the Ambassador. He being a Norwegian, he had the courage to stand up and I could remember when the sea plane incident took place he stood to his guts and he said that LTTE has violated the CFA. There was some sort of correction type of a thing that was tried upon by the Facilitator for which he didn’t give in.

Then at the same time I must say while I take my hat off to late Trond Furuhovde -he died about 2 – 3 years back- his successor created all the problems for the CFA and allowed various things to happen. In fact, his behavior in the case of follow up of Hakone talks, where Commissioner Rohan Perera had been discussing with me those days and with former SCOPP Director General Bernard Gunatillake. We were working on it and he was trying to make it a ‘naval unit’. Then he wanted to have so many things. Even the training excise area was his idea. It was not the idea of the people at Hakone. That was the other end of a Monitor. This was one end; the other one was the other end. Therefore, I think when this type of thing happens, quite naturally the other people- even I was feeling a little bit disgusted about the whole thing. I think definitely the news papers went to town, quite rightly I must say. Then the Military people; they didn’t want to be supportive. They were not trying to be cooperative with SLMM sometimes, so that failed because of the initial mistakes made by some of those people,

And there were other things sometimes. They had the SOMA, i.e. Status of Mission Agreement and it had the ware withal to take up, to be supportive of various organizations, to be supportive of the SLMM. But when they faced some of these difficult situations, there I think the military people were wondering whether it was a case to be handling in that same manner.

And Local Monitoring Committees; they were appointed and some of them were as bad as LTTE thinkers! I could remember when we had the famous case of Kanjirankudah where we appointed late Harry Gunatillake- the present Air Force Commander’s father- as the Chairman of a Committee to go into that, inquire and report.  They wanted a LTTE man (in the Committee) and I said “It’s OK. Come along, let’s have him” and we appointed one and he gave a dissenting view on the Kanjirankudah case, which was a very open case where there were about 15 people crashing into the STF camp at Kanjirankudah with guns in hand and the STF did the correct thing and they shot at the fellows and there were seven people dead- some very young fellows about 18 – 20 years old people. And this attack on the STF camp was being justified by the Local Monitoring Committee man who was appointed from the LTTE side. So the moment you do it you lose respect, you lose the faith in that type of a thing. If you want to have some sort of a build up to come into a reconciled peaceful situation we must have confidence and faith in the other man. But how can we have faith in a set of fellows like that?

Then the internationals; I think most internationals were having very little pressure brought on to be seen by us. But people like Commissioner Palihakkara or Bernard Gunatillake would have known better, because they were in the Foreign Affairs Ministry. I don’t know how the things were, but to my naked eye, I could say that I could not find the foreigners pressing them hard. Perhaps they may have been doing it, but I didn’t see that.

Of course, at a later stage we find towards the end of our term Dollar 4.5 billion support which was pledged at Tokyo. It was a good example of internationals trying to be very supportive of the government that was there. At the same time when the Eelam IV was fought I think the situation was a little different from that once again.

And the other thing is I think the International Net concept, which came up because of the good work done by Minister Milinda Moragoda at that time. That put the LTTE into a fairly difficult situation. And the Donor Meeting in Washington– those are things which went against the thing from their point of view. Terre was some reason for them to do that. In Bangkok when we had the Second Peace Talks we had the Draft Outline of an Appeal for Immediate Humanitarian Rehabilitation of North and East. There is a document which was prepared and this document was to be ‘sold by both parties’ together and they found that it was not been respected by the Government and the Facilitator. That went against them.  I think that may have been the reason which they gave, but the situation would have been a little different, because of the other developments which were coming in favor of the Government, sometimes they may have thought that ‘We should not go on with that.’

With my respect to all the media people I must say that there were[1] (I hope they will not be writing bad things against me) weak responses and criticisms, which sometimes were not factual, and sometimes giving interpretations, which were really nasty and was carried on. I don’t know for what reason.  The negativism shown by some of the media people was completely comparative the other way about when we had the war. During the war time –Eelam IV war- the media supported the issue completely, very heavily, and therefore I think the government was saved from lot of other problems, even if there was justified criticism that was toned down, whereas in our case the criticism were not justified in most cases.  I blame the Government’s media unit also for that matter because they also didn’t take much of serious notice about doing things to suit the peace process. So those are the things.

But I will quote another quotation which you may have heard earlier. This I am taking from President Barak Obama, but before he became President.  This was a testing time for us, I think in the Government and in the Ministry of Defense also. He said -he has given this speech in North Western University Commencement Address “You will be tested by the challenges of this new century, and at times you will fail. But know that you have it within your power to try. That generations who have come before you faced these same fears and uncertainties in their own time. And that if we’re willing to shoulder each other’s burdens, to take greater risks, and to persevere through trial, America will continue on its magnificent journey towards that distant horizon and a better day”.  This is what we were trying to do; going for a distant horizon, which failed of course, unfortunately for us.

Now, when I look at the responsibilities because that is also one of the mandates for the Commission, I find that some of those things as I said earlier -the drafting had weaknesses, the CFA draftsmen and some of them in the LTTE had problems. They were creating problems and even other Tamil and Muslim political groups; they were responsible for not fighting for their cause also sometimes. And provocations by LTTE cadres, not the leadership even the cadres were provoking us and that created negative responses from the military. And for co-habitation for which the Head of State and PM should take the responsibility for whatever failure we had gained from that. We did see some of those government senior politicians were very silent like.  On the other hand the Opposition politicians were, (probably within quotes, with respect to them) I must say “sabotaging the thing”. They were going on criticizing everything. I don’t want to mention names, it’s not fair, but there were people who were coming out with various arguments from the Opposition; the government people by being silent, and the opposition people by being very boisterous for sabotage.  TNA for that matter indirectly supporting the LTTE because the good work the government was trying to do or the internationals were trying to do or the Facilitator and various people were trying to do that was bungled up in a way. And the LTTE leadership was there and sometimes government of Sri Lanka. Take the case of our not giving enough funds for the SIHRN, and all that.

Then, the media as I said earlier for media matters: I don’t say that media was the main cause, but their behavior was sometimes problematic to us. And Local Monitors and the breakdown of local monitor and the internationals not being too hard on some of these things. See the hardness, the way how internationals are trying to take President Rajapaksa to terms. But that was not there during our times.

So therefore these are the areas where the responsibilities were problematic. And then the corrective steps should be for these things, if you are going to do anything of this nature in the future. We must study the situation, have a developed strategic vision for this type of thing and have consensus building from the day one. Otherwise we will not be doing it properly and be comprehensive in whatever you write as a document or letter.  I think I need not remind the Commission because you all know about it better than I do, being lawyers most of you. Provision should be available to ensure mischief making is not allowed. But that provision- we didn’t have anything.  Then inclusiveness politically, then demographically and militarily should be there if you are going to do that.  And civil society also should have been taken into the Agreement.

Then we have the co-habitation of politicians. We can’t correct politicians on this. We always try to do this, but they must look at it. I think it is in the French Constitution if I am right and subject to correction. I must say when there is a President and Prime Minister from two parties and in control, there is provision for them to be discussing issues every two weeks or whatever it is and then try to find it. I think that type of arrangement should be there if we are going to have it, and you cannot be hiding things from the Executive or from the Prime Minister.

And the attitudinal change should be there. Closer monitoring or an evaluation using transparent indicators is important, because the SLMM was sending their reports every week and that’s all we found about the violations and all that, because there was no close monitoring of this, unless we had very serious issues like the sea incidents and things like that. Some sort of moderator attitude should be in the Facilitator to do that.  And firm action has to be incorporated to any tool we are going to have, because if there is no firm action and if it is vague, there’s no way that parties can be disciplined in doing this type of a CFA.

The monitors should be totally independent and strong and respected and should be a pivot for all subject connected activities, which are coming up, which I feel in certain cases we had. And certain cases we didn’t have. Even the Facilitator, we had the same problem.  Facilitator should be totally independent, once again strong, respected and not be moved by some party asking for certain favors. In fact, I remember one case where we caught 42 or 40 Kg. explosives in a boat. And in this particular case we were trying to get hold of all the three people who were in the boat and it was resisted by the LTTE and ultimately we were negotiating through the SLMM and they were agreeable to two and the other one they were not giving in. This was taken up with the Facilitator and the Facilitator was not very helpful in doing that. It was very bad because the Navy Commander was very cut up, I should say about the way how it happened.  So that type of thing when it happens, you lose respect; you lose everything about the Facilitator.  So whether it is Monitor, Facilitator or who ever it is, we should not have that type of thing happening.  And the engagement of the parties by the internationals should have been happening in that way.

I hope I can go on with restitution and the other one also. I am about to walk into the area of restitution.

I have a document prepared which I am going to refer, which I hope it will be useful to the Commission. (At this point the document titled Methodology for Restitution was handed over to the Commission by Mr. Fernando. It is reproduced below along with its Annexes- A and B.)

Shall I read this? I think it is easier than going through the compact document which I have prepared.  It will take about seven eight minutes of course to read three and a half pages.  Or since I have given this in writing shall I basically go through?

METHODOLOGY FOR RESTITUTION

Since the term ‘restitution’ has not been interpreted I may try to explain how one could justifiably understand it in post conflict context.

‘Restitution’ means to me, according to the dictionary explanation, “restoration of a thing to its proper owner or original state”. Legal literature says “The term restitution refers to an equitable remedy (or a form of restorative justice) by which individuals or groups of persons who suffer loss or injury are returned as far as possible to their original pre-loss or pre-injury position.” I prefer to go by the latter interpretation, as it does not limit to “restitution of things.” In human life, especially for the conflict affected, it is necessary to provide for restitution of non-physical needs in addition.

As usual, experts make it more difficult by quoting other references. They quote the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights and Serious Violations of International Humanitarian Law (2005) for further articulation. With legal luminaries sitting as Commissioners I need not waste the time of the Commission on these legal aspects.

Nevertheless, as a layman if I am to understand the above references “Restitution should, whenever possible, restore the victim to the original situation before the gross violations of human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship; return to one’s place of residence, restoration of employment and return of property.” To my mind this is the most appropriate, as it appears to be extremely humanitarian, even though I do not find the term “humanitarian’ in the warrant received by the Commission.

I saw in the Sunday Times last week end that the Chairman of this Commission has stated “You cannot have any reconciliation if peoples’ grievances exist”. I presume he said so. The list starting with ‘restoration of liberty’ to ‘return of property’ in the previous quote and more are the “peoples’ grievances,” as I assimilate. Hence, invariably humanitarian issues related to ‘restitution’ may arise and I pray that this Commission would look at it in this spirit.

The Principles of restitution as stated in the Handbook on Principles on Housing and Property Restitution for   Refugees and Displaced Persons (Pinheiro Principles) take the perspective that neither war, human rights abuses, development projects nor disaster are in and of themselves justifiable grounds upon which to legitimize the arbitrary or unlawful acquisition, expropriation or destruction of homes and lands over which refugees and displaced persons continue to retain rights. It should be so with regard to issues like return to one’s place of residence or restoration of livelihood etc.

Land and shelter are the first concerns of any displaced and affected by disasters, whether man made or natural. If it is agreed, grounded firmly in existing international law, policy and best practices, the quoted Principles recognize the fundamental nature of housing and property restitution as a key concern of States and the international community, and ultimately as a fundamental feature of long-lasting peace and sustainable development, especially after conflicts.

Quite recently I observed many anti government criticisms regarding the resettlement process in the North and East of Sri Lanka. I haste to add that these are most likely exaggerated because they are politically motivated. It is unsurprising therefore to hear issues like demographic percentage changes due to military cantonment establishment highlighted by Tamilnet and TNA politicians because such changes affect their elections. If such cantonments are established to change the demographic patterns the intentions of the government regarding restitution may be suspected too. I checked such media references in the Tamilnet. Out of nearly 190 news items in July 2010 nearly 25 instances refer to problems in resettlement and aftermath. I table a list for one and a half months, as Annex A. I must say that this sort of reporting is not limited to this duration but had been recurring. The Commission could check it if it wishes. If these reports are 20% true it will be extremely powerful ammunition in the hands of the Western critics of the government and the Diaspora, as well as some domestic Tamil groups. This is the political reason to look at the restitution issue more seriously.

I thought that it is important to understand the quoted Principles related to restitution as they are accepted by the UN and are based on wide experiences received in other conflict ridden situations. It is not to suggest that we should duplicate them, but, these experiences could be the lessons learnt and the Principles evolved after time testing. The UN Mission in Kosovo established, administered and managed the Kosovo Housing and Property Directorate and Housing and Property Claims Commission and UN Transitional Authority in East Timor institutionalized adjustment for restitution questions. UN Transitional Administration in Cambodia and UN Assistance Mission in Afghanistan chose not to address restitution issues. These show that there is no mandatory requirement to implement such Principles because it has UN origins. If Sri Lanka wishes to give a square deal to the affected persons these Principles could serve efficiently and effectively. If so, the Commission need not reinvent the wheel and sort out what is applicable and acceptable in our context.

Therefore, as Annex B I table an extract from the Handbook on Principles on Housing and Property Restitution for Refugees and Displaced Persons. I hope this Handbook will be of interest to the Commission to find methodologies for restitution.

These quoted Principles lead us to important aspects of restitution. One important issue is that everyone has the right to be protected from discrimination on the basis of race, color, sex, language, religion, political or other opinion, national or social origin, property, disability, birth or other status and the State shall ensure that de facto and de jure discrimination on the above grounds is prohibited and that all persons, including refugees and displaced persons are considered equal before the law. If one reads the contents of Tamilnet reports he/ she will be displeased whether these principles are adhered by the State. I state that this conclusion could be wrong if the Tamilnet reporting is untrue.

I quote the Tamilnet of August 14th 2010. It stated that Deputy Minister of Resettlement had said that the uprooted Muslims located in other parts of Sri Lanka including Puttalam living in houses given to them by Sri Lanka government should hand them back and the relief measures to them will be stopped if they choose to resettle in Jaffna. Muslim leaders have taken the matter with Northern Province Governor. If again 20% of this news is true it is disheartening because political bias has overtaken the humanitarian consideration, which is against the Principles. The displaced Muslim communities continue (since 1990) to face disproportionate difficulties in securing their housing and property restitution rights. What ought to truly happen as a method of restitution in such case is to permit these Principles to act as an independent normative framework to support the non-discriminatory application of restitution laws.

The affected and displaced in the North and East have vivid backgrounds and different extents of damage, loss, destruction and hence the needs for assistance. Nevertheless, human rights law does not require States to build housing for everyone who may request it or need it. If the government wishes to go by this non-requirement it will be unfair, mainly because the affected are all Sri Lankan citizens. Rather, housing rights provisions require States to create conditions within society – through law, policy, budgetary allocations and so forth – to ensure that everyone can access housing that is affordable, habitable and fully ‘adequate’ in accordance with international standards. Replacement of a house or any other asset is not a must in restitution but improvement of quality and technology is appreciated.

In 1987, as Secretary Rehabilitation I along with Fred Cuny, a USAID consultant drew up the assistance and financing schemes through REPPIA managed bank loans and government grants. Our focus was different and the load was less. Commissioner Chandi Chanmugam as Secretary Finance mobilized funds from the Consolidated Fund and Akiel Mohamed as Director of External Resources found World Bank funds to undertake such schemes. It will be up to the incumbent Treasury bosses to find resources now. Compensation schemes for political hierarchies have been changing in an ad hoc manner but it is noted that for poor, affected, helpless persons successive governments have not been so sympathetic. The latest scheme for the displaced I presume is the scheme that was introduced after the Tsunami. Hence, even without the bond to be guided by human rights laws the government has a path that had been cleared after 2005, from which she cannot withdraw now, and it could be the easiest method to finance restitution of housing and resettlement at present.

Another issue on restitution is the return to original lands which has been made difficult due to the existence of high security zones, especially in the North. I am aware of some Tamil National Alliance politicians who clamor for this, as they are personally affected. The HSZs were a narrow strip of land at the outset. The expansion of the HSZs was appropriate to the enhanced long range fire power of the LTTE and the need to push LTTE, especially from Jaffna Peninsula.

Due to the creation of HSZs there were several communities that were displaced who will seek restitution of their lands, houses and properties. They are: (1) people who lived at the boundaries of the core HSZ areas like the Palaly Air Port or KKS harbor; (2) people whose houses were acquired after paying compensation under the Land Acquisition Ordinance (e.g. some lands and houses nears Palaly and Batticaloa Air Fields); (3) individual houses that were “forcibly acquired’ during the conflict when the owners have fled (e.g. near Chavakachcheri) and later a rent was paid on Divisional Secretary’s recommendation; (4) other different cases of those whose houses are occupied by the security forces. In similar vein I must say that there were lands, properties, houses and even estates that were forcibly acquired by the LTTE in North and East for which there could not have been any representation that could have been made to return them. Those also should revert to the original owners.

The numbers (1) and (2) categories may sometimes fall to the category of assets that cannot be quickly or sometimes non-returnable to their original owners since the defense authorities believe that LTTE might regroup and should be continuously watched and be prepared to react. Now that the LTTE fire power is wiped out the government may reassess the potential threats and decide on the extent of HSZ areas. In that event it is extremely important that this be examined not only by a military decision maker but by a tribunal that could assess the ground situation and make realistic compensation to the owners without undue delay, if the lands are not to be returned. What appears to happen presently is to bulldoze any such demands of the affected.

It must be noted that during the United National Front regime the Army had plans to reduce the Army Camps to around 50 in the Jaffna Peninsula. With gaining control from the LTTE the need to have the same security infrastructure is questioned by the public. Reduction of these camps may be facilitated better by the Army developing cantonments in Vanni area, as reported in the media. Hence, it is advisable to release these lands in none or less security vulnerable areas in the North and East. The category (4) has to be looked at on a case by case status for release or continuation dependent on the threat conception of the military.  The problem is that military decision makers are very specific on their security which cannot be challenged, but sometimes we have seen them overdoing it and the authorities should take care of such aberrations.

Since there was large scale displacement there is every possibility that many persons would have lost or misplaced the documentary evidence of ownership of lands. Due to military and LTTE holding on to lands belonging to civilians the boundaries and landmarks would have been changed during thirty years of conflict. The shortage of surveyors will be a practical issue that has to be faced. Land mines will be another issue which is being addressed now.  All these will require solutions before restitution is administered.  These may require even changes to laws, procedures, institutional rearrangements etc as lending agencies, Local Bodies and Urban Development Authority demand these documentation to administer loans and give permissions to build. Hence, it is necessary that the government commence working on these issues as a matter of priority.

In case if restitution is incomplete due to whatever reason refugees and displaced persons have the right to full and effective compensation as an integral component of the restitution process. The internationally accepted principle of compensation is that it “may be monetary or in kind. States shall, in order to comply with the principle of restorative justice, ensure that the remedy of compensation is only used when the remedy of restitution is not factually possible, or when the affected party knowingly and voluntarily accepts compensation in lieu of restitution, or when the terms of a negotiated peace settlement provide for a combination of restitution and compensation.” This too may not be possible in case of large scale devastation. The principle of assisting the destruction caused by military action or terrorist action and such details have to be worked out by experts, in consultation with the affected, military and other government civil authorities. Certain previous experience in war torn situations may be studied for this matter. The international support for these compensations too could be explored.

Restitution does not end with land, house and property. Restitution includes, as appropriate: “restoration of liberty, enjoyment of human rights, identity, family life and citizenship; return to one’s place of residence, restoration of employment and return of property.” I believe that this Commission will agree with this UN accepted interpretation. I may mention that these will be very important aspects as they could be the foundation for successful and sustainable reconciliation and sustainable peace. I disagree with the present belief that by investing money for development alone could bring about reconciliation.

Hoping that restitution is for areas in addition to land, housing and properties the State has to consider methods of restitution. One item that cannot be restituted is life. But there could be systems of compensating lost life. What has been observed in Sri Lanka is payment of compensation in the form of salary payment for military and Police and lump sum payments in other cases. If peace and reconciliation is aimed at there could be demands from the Tamil community and politicians for compensation for others like public officers, private sector personnel, civilians etc. There are several issues like death certificates, inquiry proceedings etc that could hinder payment of compensation. Required legal measures and propositions should be created in such events.

Another area fro restitution is loss of limbs. Even the military personnel have to delay completing treatment as the equipment used for adjustments to broken limbs are very expensive and have to be imported. In addition it is necessary to find artificial limbs which are costly. There have been non governmental agencies that have been engaging in this activity and bringing them in to the governmental action plans could be considered.

One area where extremely focused attention is demanded is the livelihood improvement programmes and employment opportunities fro the retuning displaced persons. The need to train the displaced has to be supported by employment opportunities which may be connected to marketing issues and financing modes. There could be women headed families, single parent families and families where the elders who have passed the employment age demanding sustained incomes etc. Restitution of these activities with families and individuals have to be considered as a community economically devastated and continuing to be in a worse predicament that will create other social problems if unattended. Engagement of banks, private sector and opening employment opportunities in foreign countries are a few options that could be proposed.

I believe the Commission will give serious thought to these issues which are much deep when implementation takes place. Best recommendation that could be made is to learn from other situations similar to what we have faced in Sri Lanka and to engage seasoned expertise to mange these for which NGOs and civil society organizations could contribute in a large scale.

Annex A

TAMILNET NEWS REPORTS FOR JULY 2010 RELATED TO RESETTLEMENT

31.07.10 SLA appropriates uprooted civilians’ villages in Vanni.

29.07.10 Southern contractors benefit from international funds for development in Jaffna.

28.07.10 SLA interrogates resettled people in K’linochchi following JVP delegation.

28.07.10 SLN constructs new coastal bases in Eastern Province.

27.07.10 Sinhala magistrate to be appointed to Mullaitivu.

27.07.10 SL government suspends WPF relief measures to resettled.

24.07.10 STF appropriates Tamil land to erect Buddhist temple.

24.07.10 SLA personnel to be settled in uprooted civilian’s lands in KLN’.

22.07.10 SLA soldiers continue to plunder abandoned houses

21.07.10 SLA soldiers sexually abuse resettled women in Mannar.

21.07.10 Construction of fishing centre for Southern fishermen.

21.07.10 SLA forces resettled civilians in Ki’linochchi

20.07.10 SLA to construct permanent base in demolished Koapai.

19.07.10 SLA refuses permission of reopen fishing jetties…..

18.07.10 SLA soldiers plunder produce of civilians in Batticaloa.

18.07.10 Families to be resettled suffer without assistance.

17.07.10 SLA installs Buddha statute in Tamil village in Mannar..

15.07.10 SL government intends to keep Jaffna in SLA grip

15.07.10 High Security Zones will not be dismantled says SL..

15.07.10 Drinking water shortage hits resettled families ……

14.07.10 Residents forced indoors as SL armed forces take ….

14.07.10 SLN constructs big base in Batticaloa district

13.07.10 SLA denies irrigation facility to resettled……..

13.07.10 Madu uprooted Tamil families abandoned at school……

13.07.10 Houses constructed for SLA in Vanni as resettled ….

11.07.10 Champoor uprooted Tamil villagers demand early res.

10.07.10 Sexual abuse of resettled women in Vanni by SLA soldiers.

08.07.10 SLA continues fishing ban in resettled areas in Vanni.

01.07.10 Hindu temples in East face forcible removal.

TAMILNET NEWS REPORTS FOR AUGUST 2010 RELATED TO RESETTLEMENT

14.08.10 NP Governor urged to allow Muslims to resettle in Jaffna without restrictions

14.08.10 SLA imposes new restrictions on resettled families.

13.08.10 SLN tightens restriction on Mannar fishermen

12.08.10 Sinhala armed gangs rob Tamil passengers from North…….

11.08.10 SLA in Vanni harass hapless resettled families

11.08.10 EPDP monopoly in the distribution of relief ration…..

10.08.10 New Buddhist temple in Manku’lam in North

08.08.10 Moothoor east uprooted families languish in tempor..

07.08.10 Plans afoot to settle Sinhala people in Thiriyaay ..

06.08.10 Rail-track improvement to force 671 families go home..

04.08.10 SLA exploits Chinese funds meant for resettlement ..

03.08.10 SLA claims Kurunakar HSZ removed

03.08.10 India sending special envoy to assess rehabilitation..

03.08.10 Valikaamam uprooted families abandon protest demon..

02.08.10 SLN reintroduces pass system for fishing in Trinco..

01.08.10 Resettled families in Vanni left abandoned…..

01.08.10 SLA reinstalls checkpoint at Elephant Pass

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Annex B

Principles on Housing and Property Restitution for Refugees and Displaced Persons

Adopted without a vote on 11 August 2005 in Resolution 2005/21 by the UN Sub-Commission on Protection of Human Rights, Geneva. (IDMC, Beau)

Preamble

Recognizing that millions of refugees and displaced persons worldwide continue to live in precarious and uncertain situations, and that all refugees and displaced persons have a right to voluntary return, in safety and dignity, to their original or former habitual homes and lands;

Underscoring that voluntary return in safety and dignity must be based on a free, informed, individual choice and that refugees and displaced persons should be provided with complete, objective, up to date, and accurate information, including on physical, material and legal safety issues in countries or places of origin;

Reaffirming the rights of refugee and displaced women and girls, and recognizing the need to undertake positive measures to ensure that their rights to housing, land and property restitution are guaranteed;

Welcoming the many national and international institutions that have been established in recent years to ensure the restitution rights of refugees and displaced persons, as well as the many national and international laws, standards, policy statements, agreements and guidelines that have recognized and reaffirmed the right to housing, land and property restitution;

Convinced that the right to housing, land and property restitution is essential to the resolution of conflict and to post-conflict peace-building, safe and sustainable return and the establishment of the rule of law, and that careful monitoring of restitution Programs, on the part of international organizations and affected states, is indispensable to ensuring their effective implementation;

Convinced also that the implementation of successful housing, land and property restitution Programs, as a key element of restorative justice, contributes to effectively deterring future situations of displacement and building sustainable peace;

Section I. Scope and Application

1. Scope and Application

1.1 The Principles on Housing and Property Restitution for Refugees and Displaced Persons articulated herein are designed to assist all relevant actors, national and international, in addressing the legal and technical issues surrounding housing, land and property restitution in situations where displacement has led to persons being arbitrarily or unlawfully deprived of their former homes, lands, properties or places of habitual residence.

1.2 The Principles on Housing and Property Restitution for Refugees and Displaced Persons apply equally to all refugees, internally displaced persons and to other similarly situated displaced persons who fled across national borders but who may not meet the legal definition of refugee, (hereinafter ‘refugees and displaced persons’) who were arbitrarily or unlawfully deprived of their former homes, lands, properties or places of habitual residence, regardless of the nature or circumstances by which displacement originally occurred.

Section II. The Right to Housing and Property Restitution

2. The Right to Housing and Property Restitution

2.1 All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/or property that is factually impossible to restore as determined by an independent, impartial tribunal.

2.2 States shall demonstrably prioritize the right to restitution as the preferred remedy to displacement and as a key element of restorative justice. The right to restitution exists as a distinct right, and is prejudiced neither by the actual return nor non-return of refugees and displaced persons entitled to housing, land and property restitution.

Section III. Overarching Principles

3. The Right to Non-Discrimination

3.1 Everyone has the right to non-discrimination on the basis of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

3.2 States shall ensure that de facto and de jure discrimination on the above grounds is prohibited and that all persons, including refugees and displaced persons, are considered equal before the law.

4. The Right to Equality between Men and Women

4.1 States shall ensure the equal right of men and women, and the equal right of boys and girls, to the enjoyment of housing, land and property restitution. In particular, States shall ensure the equal right of men and women, and the equal right of boys and girls, to inter alia voluntary return in safety and dignity; legal security of tenure; property ownership; equal access to inheritance; as well as the use, control of and access to housing, land and property.

4.2 States should ensure that housing, land and property restitution Programs, policies and practices recognize the joint ownership rights of both the male and female heads of the household as an explicit component of the restitution process, and that restitution Programs, policies and practices reflect a gender sensitive approach.

4.3 States shall ensure that housing, land and property restitution Programs, policies and practices do not disadvantage women and girls. States should adopt positive measures to ensure gender equality in this regard.

5. The Right to be protected from Displacement

5.1 Everyone has the right to be protected against being arbitrarily displaced from his or her home, land or place of habitual residence.

5.2 States should incorporate protections against displacement into domestic legislation, consistent with international human rights and humanitarian law and related standards, and should extend these protections to everyone within their legal jurisdiction or effective control.

5.3 States shall prohibit forced eviction, demolition of houses and destruction of agricultural areas and the arbitrary confiscation or expropriation of land as a punitive measure or as a means or method of war.

5.4 States shall take steps to ensure that no one is subjected to displacement by either State or non-State actors. States shall also ensure that individuals, corporations, and other entities within their legal jurisdiction or effective control refrain from carrying out or otherwise participating in displacement.

6. The Right to Privacy and Respect for the Home

6.1 Everyone has the right to be protected against arbitrary or unlawful interference with his or her privacy and his or her home.

6.2 States shall ensure that everyone is provided with safeguards of due process against such arbitrary or unlawful interference with his or her privacy and his or her home.

7. The Right to Peaceful Enjoyment of Possessions

7.1 Everyone has the right to the peaceful enjoyment of his or her possessions.

7.2 States shall only subordinate the use and enjoyment of possessions in the public interest and subject to the conditions provided for by law and by the general Principles of international Principles on Housing and Property Restitution for Refugees and Displaced Persons law. Whenever possible, the ‘interest of society’ should be read restrictively, so as to mean only a temporary interference with the right to peaceful enjoyment of possessions.

8. The Right to Adequate Housing

8.1 Everyone has the right to adequate housing.

8.2 States should adopt positive measures aimed at alleviating the situation of refugees and displaced persons living in inadequate housing.

9. The Right to Freedom of Movement

9.1 Everyone has the right to freedom of movement and the right to choose his or her residence. No one shall be arbitrarily or unlawfully forced to remain within a certain territory, area or region. Similarly, no one shall be arbitrarily or unlawfully forced to leave a certain territory, area or region.

9.2 States shall ensure that freedom of movement and the right to choose one’s residence are not subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with international human rights, refugee and humanitarian law and related standards.

Section IV. The Right to Voluntary Return in Safety and Dignity

10. The Right to Voluntary Return in Safety and Dignity

10.1 All refugees and displaced persons have the right to voluntarily return to their former homes, lands or places of habitual residence, in safety and dignity. Voluntary return in safety and dignity must be based on a free, informed, individual choice. Refugees and displaced persons should be provided with complete, objective, up to date, and accurate information, including on physical, material and legal safety issues in countries or places of origin.

10.2 States shall allow refugees and displaced persons who wish to return voluntarily to their former homes, lands or places of habitual residence to do so. This right cannot be abridged under conditions of state succession, nor can it be subject to arbitrary or unlawful time limitations.

10.3 Refugees and displaced persons shall not be forced, or otherwise coerced, either directly or indirectly, to return to their former homes, lands or places of habitual residence. Refugees and displaced persons should be able to effectively pursue durable solutions to displacement other than return, if they so wish, without prejudicing their right to the restitution of their housing, land and property.

10.4 States should, when necessary, request from other States or international organizations the financial and/or technical assistance required to facilitate the effective voluntary return, in safety and dignity, of refugees and displaced persons.

Section V. Legal, Policy, Procedural and Institutional Implementation

Mechanisms

11. Compatibility with International Human Rights, Refugee and Humanitarian law and Related Standards

11.1 States should ensure that all housing, land and property restitution procedures, institutions, mechanisms and legal frameworks are fully compatible with international human rights, refugee and humanitarian law and related standards, and that the right to voluntary return in safety and dignity is recognized therein.

12. National Procedures, Institutions and Mechanisms

12.1 States should establish and support equitable, timely, independent, transparent and non-discriminatory procedures, institutions and mechanisms to assess and enforce housing, land and property restitution claims. In cases where existing procedures, institutions and mechanisms can effectively address these issues, adequate financial, human and other resources should be made available to facilitate restitution in a just and timely manner.

12.2 States should ensure that housing, land and property restitution procedures, institutions and mechanisms are age and gender sensitive, and recognize the equal rights of men and women, as well as the equal rights of boys and girls, and reflect the overarching principle of the “best interests” of the child.

12.3 States should take all appropriate administrative, legislative and judicial measures to support and facilitate the housing, land and property restitution process. States should provide all relevant agencies with adequate financial, human and other resources to successfully complete their work in a just and timely manner.

12.4 States should establish guidelines which ensure the effectiveness of all relevant housing, land and property restitution procedures, institutions and mechanisms, including guidelines pertaining to institutional organization, staff training and caseloads, investigation and complaints procedures, verification of property ownership or other possessory rights, as well as decision-making, enforcement and appeals mechanisms. States may integrate alternative or informal dispute resolution mechanisms into these processes, insofar as all such mechanisms act in accordance with international human rights, refugee and humanitarian law and related standards, including the right to non-discrimination.

12.5 States should, where there has been a general breakdown in the rule of law, or where States are unable to implement the procedures, institutions and mechanisms necessary to facilitate the housing, land and property restitution process in a just and timely manner, request the technical assistance and cooperation of relevant international agencies in order to establish provisional regimes responsible for providing refugees and displaced persons with the procedures, institutions and mechanisms necessary to ensure effective restitution remedies.

12.6 States should include housing, land and property restitution procedures, institutions and mechanisms in peace agreements and voluntary repatriation agreements. Peace agreements should include specific undertakings by the parties to appropriately address any housing, land and property issues that require remedies under international law or threaten to undermine the peace process if left unaddressed, while demonstrably prioritizing the right to restitution as the preferred remedy in this regard.

13. Accessibility of Restitution Claims Procedures

13.1 Everyone who has been arbitrarily or unlawfully deprived of housing, land and/or property should be able to submit a claim for restitution and/or compensation to an independent and impartial body, and to receive a determination on their claim. States should not establish any pre-conditions for filing a restitution claim.

13.2 States should ensure that all aspects of the restitution claims process, including appeals procedures, are just, timely, accessible, free of charge, and are age and gender sensitive. States should adopt positive measures to ensure that women are able to participate on a fully equal basis in this process.

13.3 States should ensure that separated and unaccompanied children are able to participate and are fully represented in the restitution claims process, and that any decision in relation to the restitution claim of separated and unaccompanied children is in compliance with the overarching principle of the “best interests” of the child.

13.4 States should ensure that the restitution claims process is accessible for refugees and other displaced persons regardless of their place of residence during the period of displacement, including in countries of origin, countries of asylum or countries to which they have fled. States should ensure that all affected persons are made aware of the restitution claims process, and that information about this process is made readily available, including in countries of origin, countries of asylum or countries to which they have fled.

13.5 States should seek to establish restitution claims processing centers and offices throughout affected areas where potential claimants currently reside. In order to facilitate the greatest access to those affected, it should be possible to submit restitution claims by post or by proxy, as well as in person. States should also consider establishing mobile units in order to ensure accessibility to all potential claimants.

13.6 States should ensure that users of housing, land and/or property, including tenants, have the right to participate in the restitution claims process, including through the filing of collective restitution claims.

13.7 States should develop restitution claims forms that are simple, easy to understand and use and make them available in the first language or languages of the groups affected. Competent assistance should be made available to help persons in completing and filing any necessary restitution claims forms, and such assistance should be provided in a manner which is age and gender sensitive.

13.8 Where restitution claims forms cannot be sufficiently simplified due to the complexities inherent in the claims process, States should engage qualified persons to interview potential claimants in confidence, and in a manner which is age and gender sensitive, in order to solicit the necessary information and complete the restitution claims forms on their behalf.

13.9 States should establish a clear time period for filing restitution claims. The time period should be widely disseminated and should be sufficiently long to ensure that all those affected have an adequate opportunity to file a restitution claim, bearing in mind the number of potential claimants, potential difficulties of information and access, the spread of displacement, the accessibility of the process for potentially disadvantaged groups and vulnerable individuals, and the political situation in the country or region of origin.

13.10 States should ensure that persons needing special assistance, including illiterate and disabled persons, are provided with such assistance in order to ensure that they are not denied access to the restitution claims process.

13.11 States should ensure that adequate legal aid is provided, if possible free of charge, to those seeking to make a restitution claim. While legal aid may be provided by either governmental or non-governmental sources (be they national or international), such legal aid should meet adequate standards of quality, non-discrimination, fairness and impartiality so as not to prejudice the restitution claims process.

13.12 States should ensure that no one is persecuted or punished for making a restitution claim.

14. Adequate Consultation and Participation in Decision-Making

14.1 States and other involved international and national actors should ensure that voluntary repatriation and housing, land and property restitution Programs are carried out with adequate consultation and participation with the affected persons, groups and communities.

14.2 States and other involved international and national actors should, in particular, ensure that women, indigenous peoples, racial and ethnic minorities, the elderly, the disabled and children are adequately represented and included in restitution decision-making processes, and have the appropriate means and information to participate effectively. The needs of vulnerable individuals including the elderly, single female heads of households, separated and unaccompanied children, and the disabled should be given particular attention.

15. Housing, Land and Property Records and Documentation

15.1 States should establish or re-establish national multi-purpose cadastre or other appropriate systems for the registration of housing, land and property rights as an integral component of any restitution Programs, respecting the rights of refugees and displaced persons when doing so.

15.2 States should ensure that any judicial, quasi-judicial, administrative or customary pronouncement regarding the rightful ownership of, or rights to, housing, land and/or property is accompanied by measures to ensure registration or demarcation of that housing, land and/or property right as is necessary to ensure legal security of tenure. These determinations shall comply with international human rights, refugee and humanitarian law and related standards, including the right to non-discrimination.

15.3 States should ensure, where appropriate, that registration systems record and/or recognize the possessory rights of traditional and indigenous communities to collective lands.

15.4 States and other responsible authorities or institutions should ensure that existing registration systems are not destroyed in times of conflict or post-conflict. Measures to prevent the destruction of housing, land and property records could include protection in situ or, if necessary, short-term removal to a safe location or custody. If removed, the records should be returned as soon as possible after the end of hostilities. States and other responsible authorities may also consider establishing procedures for copying records (including in digital format) transferring them securely, and recognizing the authenticity of said copies.

15.5 States and other responsible authorities or institutions should provide, at the request of a claimant or his or her proxy, copies of any documentary evidence in their possession required to make and/or support a restitution claim. Such documentary evidence should be provided free of charge, or for a minimal fee. 15.6 States and other responsible authorities or institutions conducting the registration of refugees or displaced persons should Endeavour to collect information relevant to facilitating the restitution process, for example by including in the registration form questions regarding the location and status of the individual refugee’s or displaced person’s former home, land, property or place of habitual residence. Such information should be sought whenever information is gathered from refugees and displaced persons, including at the time of flight.

15.7 States may, in situations of mass displacement where little documentary evidence exists as to ownership or possessory rights, adopt the conclusive presumption that persons fleeing their homes during a given period marked by violence or disaster have done so for reasons related to violence or disaster and are therefore entitled to housing, land and property restitution. In such cases, administrative and judicial authorities may independently establish the facts related to undocumented restitution claims.

15.8 States shall not recognize as valid any housing, land and/or property transaction, including any transfer that was made under duress, or which was otherwise coerced or forced, either directly or indirectly, or which was carried out contrary to international human rights standards.

16. The Rights of Tenants and other Non-Owners

16.1 States should ensure that the rights of tenants, social occupancy rights holders and other legitimate occupants or users of housing, land and property are recognized within restitution Programs. To the maximum extent possible, States should ensure that such persons are able to return to and re-possess and use their housing, land and property in a similar manner to those possessing formal ownership rights.

17. Secondary Occupants

17.1 States should ensure that secondary occupants are protected against arbitrary or unlawful forced eviction. States shall ensure, in cases where evictions of such occupants are deemed justifiable and unavoidable for the purposes of housing, land and property restitution, that evictions are carried out in a manner which is compatible with international human rights law and standards, such that secondary occupants are afforded safeguards of due process, including, inter alia, an opportunity for genuine consultation, adequate and reasonable notice, and the provision of legal remedies, including opportunities for legal redress.

17.2 States should ensure that the safeguards of due process extended to secondary occupants do not prejudice the rights of legitimate owners, tenants and other rights holders to repossess the housing, land and property in question in a just and timely manner.

17.3 States should, in cases where evictions of secondary occupants are justifiable and unavoidable, take positive measures to protect those who do not have the means to access any other adequate housing other than that which they are currently occupying from homelessness and other violations of their right to adequate housing. States should undertake to identify and provide alternative housing and/or land for such occupants, including on a temporary basis, as a means to facilitate the timely restitution of refugee and displaced persons housing, land and property. Lack of such alternatives, however, should not unnecessarily delay the implementation and enforcement of decisions by relevant bodies regarding housing, land and property restitution.

17.4 States may consider, in cases where housing, land and property has been sold by secondary occupants to third parties acting in good faith, establishing mechanisms to provide compensation to injured third parties. The egregiousness of the underlying displacement, however, may arguably give rise to constructive notice of the illegality of purchasing abandoned property, pre-empting the formation of bona fide property interests in such cases.

18. Legislative Measures

18.1 States should ensure the right of refugees and displaced persons to housing, land and property restitution is recognized as an essential component of the rule of law. States should ensure the right to housing, land and property restitution through all necessary legislative means, including through the adoption, amendment, reform, or repeal of relevant laws, regulations and/or practices. States should develop a legal framework for protecting the right to housing, land and property restitution which is clear, consistent and, where necessary, consolidated in a single law.

18.2 States should ensure that all relevant laws clearly delineate every person and/or affected group that is legally entitled to the restitution of their housing, land and property, most notably refugees and displaced persons. Subsidiary claimants should similarly be recognized, including resident family members at the time of displacement, spouses, domestic partners, dependents, legal heirs and others who should be entitled to claim on the same basis as primary claimants.

18.3 States should ensure that national legislation related to housing, land and property restitution is internally consistent, as well as compatible with pre-existing relevant agreements, such as peace agreements and voluntary repatriation agreements, so long as these agreements are themselves compatible with international human rights, refugee and humanitarian law and related standards.

19. Prohibition of Arbitrary and Discriminatory Laws

19.1 States should neither adopt nor apply laws which prejudice the restitution process, in particular through arbitrary, discriminatory, or otherwise unjust abandonment laws or statues of limitations.

19.2 States should take immediate steps to repeal unjust or arbitrary laws, and laws which otherwise have a discriminatory effect on the enjoyment of the right to housing, land and property restitution, and should ensure remedies for those wrongfully harmed by the prior application of such laws.

19.3 States should ensure that all national policies related to the right to housing, land and property restitution fully guarantee the rights of women and girls to non-discrimination and to equality in both law and practice.

20. Enforcement of Restitution Decisions and Judgments

20.1 States should designate specific public agencies to be entrusted with enforcing housing, land and property restitution decisions and judgments.

20.2 States should ensure, through law and other appropriate means, that local and national authorities are legally obligated to respect, implement and enforce decisions and judgments made by relevant bodies regarding housing, land and property restitution.

20.3 States should adopt specific measures to prevent the public obstruction of enforcement of housing, land and property restitution decisions and judgments. Threats or attacks against officials and agencies carrying out restitution Programs should be fully investigated and prosecuted.

20.4 States should adopt specific measures to prevent the destruction or looting of contested or abandoned housing, land and property. In order to minimize destruction and looting, States should develop procedures to inventory the contents of claimed housing, land and property within the context of housing, land and property restitution Programs.

20.5 States should implement public information campaigns aimed at informing secondary occupants and other relevant parties of their rights and of the legal consequences of non-compliance with housing, land and property restitution decisions and judgments, including failing to vacate occupied housing, land and property voluntarily and damaging and/or looting of occupied housing, land and property.

21. Compensation

21.1 All refugees and displaced persons have the right to full and effective compensation as an integral component of the restitution process. Compensation may be monetary or in kind. States shall, in order to comply with the principle of restorative justice, ensure that the remedy of compensation is only be used when the remedy of restitution is not factually possible or when the injured party knowingly and voluntarily accepts compensation in lieu of restitution, or when the terms of a negotiated peace settlement provide for a combination of restitution and compensation.

21.2 States should ensure, as a rule, that restitution is only deemed factually impossible in exceptional circumstances, namely when housing, land and/or property is destroyed or when it no longer exists, as determined by an independent, impartial tribunal. Even under such circumstances the holder of the housing, land and/or property right should have the option to repair or rebuild whenever possible. In some situations, a combination of compensation and restitution may be the most appropriate remedy and form of restorative justice.

Section VI. The Role of the International Community, Including international Organizations

22. Responsibility of the International Community

22.1 The international community should promote and protect the right to housing, land and property restitution, as well as the right to voluntary return in safety and dignity.

22.2 International financial, trade, development and other related institutions and agencies, including member or donor States that have voting rights within such bodies, should take fully into account the prohibition against unlawful or arbitrary displacement and, in particular, the prohibition under international human rights law and related standards on the practice of forced evictions.

22.3 International organizations should work with national governments and share expertise on the development of national housing, land and property restitution policies and Programs and help ensure their compatibility with international human rights, refugee and humanitarian law and related standards. International organizations should also support the monitoring of their implementation.

22.4 International organizations, including the United Nations, should strive to ensure that peace agreements and voluntary repatriation agreements contain provisions related to housing, land and property restitution, including through inter alia the establishment of national procedures, institutions, mechanisms and legal frameworks.

22.5 International peace operations, in pursuing their overall mandate, should help to maintain a secure and stable environment wherein appropriate housing, land and property restitution policies and Programs may be successfully implemented and enforced.

22.6 International peace operations, depending on the mission context, should be requested to support the protection of the right to housing, land and property restitution, including through the enforcement of restitution decisions and judgments. Member States in the Security Council should consider including this role in the mandate of peace operations.

22.7 International organizations and peace operations should avoid occupying, renting or purchasing housing, land and property over which the rights holder does not currently have access or control, and should require that their staff do the same. Similarly, international organizations and peace operations should ensure that bodies or processes under their control or supervision do not obstruct, directly or indirectly, the restitution of housing, land and property.

Section VII. Interpretation

23. Interpretation

23.1 The Principles on Housing and Property Restitution for Refugees and Displaced Persons shall not be interpreted as limiting, altering or otherwise prejudicing the rights recognized under international human rights, refugee and humanitarian law and related standards, or rights consistent with these laws and standards as recognized under national law.

Source: Handbook on Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles)

I consider restitution as a layman. I am not a lawyer and since the term restitution has not been interpreted in your gazette notification, I was trying to understand what it is. And the dictionary meaning is ‘restoration of the thing to the proper owner or to the original state’. Of course, this had been discussed differently by other people and experts and ultimately I take this one as a good reference, which says that “Restitution should whenever possible, restore the victim to the original situation before the gross violation of human rights law or serious violations of international humanitarian law occurred.  Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship; return to one’s place of residence, restoration of employment and return of property.”

To my mind this is the most appropriate, as it appears extremely humanitarian. But, I don’t find the word Human Rights in the warrant. So I don’t know whether I am going something beyond what is expected. But I like this explanation given about restitution.

I saw in the Sunday Times last week that the Chairman of the Commission has stated “You cannot have any reconciliation if people’s grievances exist.”  I presume you have said that and the list starting with ‘restoration liberty’ to ‘return of property’ in the previous quote are peoples’ grievances, I believe in the north and east and even in the south in some of these places.

Then I refer to a book called Hand Book on Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinihero Principles). I have given a chapter from these themes. It is not a summary. It is an interpretation of what these principles are, what it was meant; and I think, this I consider adherence to the principles to the extent possible. I don’t say that everything can be done in Sri Lanka due to various reasons, but adherence to these principles as much as possible.  There are 23 principles. I read through the principles and I find (I think this has been translated in to Sinhalese and Tamil also in Sri Lanka.) and these principles are a good starting point for us to do restitution work for the affected people, especially in the North and East.

And it has to be supportive of the Muslims who have been displaced, it has to be supportive of the Sinhalese who have been displaced. It has to be giving the opportunity for instance to ‘Madel’ fisherman from Negombo and Chilaw who used to go to Nayaru Kokilai area in Mullativu area. Everything has to happen in that manner and you can’t be thinking only of the Tamils. Think about the Sinhalese, Tamils, and Muslims everybody who have to be getting into the facilities of restitution.

Quite recently I observed many anti government criticisms regarding the resettlement process in the North and East of Sri Lanka. And these are heard mostly in the Tamil Net, which is always talking something against the government. Definitely they are exaggerated stories, but their concern about the demographic percentage changes that could take place due to this is a thing which politicians are very worried, because their elections are affected, if they do that.  There are instances in July 2010 -about 25 instances- I have given in Annex A. And even in August for half a month in Annex A. You find these are related to resettlement issues.  Rightly or wrongly, acceptable or unacceptable, but definitely if there is 20% of truth in what they have said, it is a matter of concern for people.

There are organizational activities that have been taken-done- in the international sphere. Of course, I am not  for a moment saying to do all what has been done in Kosovo  or some other place. But in case of UN Mission in Kosovo,  they administered and managed the Kosovo  Housing and  Property Directorate; and, HhhHousing and Property Claims Commission in the East Timor. But at the same time UN Transitional Administrations in Cambodia and in Afghanistan, they didn’t do that. They didn’t take restitution as an important item in their Agendas. So therefore, we also can say “No we don’t want it like the Afghans” or say “We want it like Kosovo.”  I don’t say both are right. I think what we should do is try to adjust ourselves to the 23 principles, which are given in this Hand Book. That will be much useful than doing in a very ad hoc way.

The other thing is housing restitution is not a compulsory thing also. At the same time you must consider that there are difficulties; now for example High Security Zone Areas. How can you release all the high security zone areas and the Military to come back to Colombo?  I think I saw in the newspapers about the Secretary Defense’s concern, which is right. Because he cannot be washing off his hands without looking at the future security situation, whether there is any re-grouping possible.  ‘A’ may have a very difficult feeling about it; ‘B’ may have a very kind feeling. But that is not the most important thing. These possibilities have to be corrected and then only we have to give all those things.

But then if you take restitution, at the same time I must say no government can say no funds, no men; nothing of that sort. Not that this government has said that, but no one can say, just because it is not a compulsory thing; you just can’t be keeping quiet. They must be supported to get back to their own original places, as far as possible.  If you look at restitution in this Hand Book, one important issue is that there is a need for the right to be protected from discrimination on the basis of race, color, sex, language, religion etc. etc. and from which social origin they come up.  So therefore, while those things have to be done, at the same time don’t forget that there is a need to look after the security of the area, security of the people, because civilians in that area are to be looked after by the government, and they have to be having certain, certain things. It may differ from each other. I may look at it in a different way and he may look at it in a different way. But the need is not erased off from the system. So it has to be there.

At the same time I don’t know whether the statement that had been made –but it is on the 14th of August Tamil Net- which quotes that Deputy Minister Resettlement Hon. Karuna had said that the uprooted Muslims located in other parts of Sri Lanka including Puttalam, living in houses given to them by Sri Lanka Government should hand them back and the relief measures to them will be stopped, if they choose to resettle in Jaffna.  I don’t think he would have said that because as a politician you don’t expect him to say that.  But if there is 20% of truth in this, it’s a very difficult situation, because you must not provoke the people who are affected, because they have so much of other problems to face with. If you just say this type of thing- by any chance if he had said it- it’s a very damaging thing.  I don’t think. He is becoming a very seasoned politician.

I am happy that I have been working on the CFA. And he was one person who was breaking the rules, regulations, which were there in the CFA! I can still remember. I don’t mind saying this.  One night a Navy officer rang me up and said “Karuna Amman is coming in a boat and shall I engage him?” I asked him “How is he coming?” He said “In a boat” or something like that.  He asked for permission from me to engage and I said “No’. He said “He is violating the CFA.”  I said “Yes, but still you don’t engage him.” And he broke rules like that!

Of course, he and I have been very friendly in other discussions during the CFA period, but in this type of thing, this is the decision making you had to do in the CFA. And people criticized the decision makers, but over the phone around 1.30 a.m. or whatever time you are sleeping and your bed-side telephone rings up and someone asks, “Shall I kill him?” you say “Yes”,  the whole country is burning. If I say “No,” then everyone is trying to burn me. It is the type of thing. But I preferred the second punishment and I did that. So this is where it’s very easy for people to be critical saying that they have not done this or that. Those are postmortems, which are very easily done, but for the people who have to take decisions, it was a different story.

Once again coming back to restitution, the affected people in the north and east are from very different backgrounds. And if I had a three storied house in Jaffna and if that had been affected, or in Kilinochchi, and to expect a three storied house is not the thing. But definitely there should be some sort of compensation.  At the same time if you can upgrade the housing, that’s a good thing to do. That’s what we tried to do after the Tsunami.  After Tsunami we did that; after cyclone in 1978 we did that. So, likewise we may upgrade the condition of the house, quality of housing and things like that can be done.

And some of these systems which have been used- I can remember in 1987 I was in Secretary Rehabilitation and USAID consultant Fred Cuny and I did the Assistance Programme. USAID was funding him. And we used it from REPPIA managed bank loans and government grants, and Commissioner, Chandi Chanmugam was Secretary Treasury at that time and he found the money from the Consolidated Fund.  And his colleague Akiel Mohamed, Director General, External Resources, he found money from World Bank.  So no one can say ‘We don’t have money and we can’t do anything.’ That’s not the done thing; people have to find the money. The Treasury bosses now may have to do that.  The problem is it is the poor, it’s the weak, women and children who are affected in the disasters mostly- at the very outset and sometimes throughout.  But when politicians have compensation schemes it is done over a Cabinet decision. Of course the numbers are very little, but they are also human beings. I don’t want to mention names once again. Commissioner Chandi Chanmugam may sometimes recall how we had to give money to politicians in 1987 or so. It was very, very tragic- people asking for millions and giving millions, and when it comes to poor people, women, children, we are finding it very difficult to find money. We just try to throw them away.  I am happy that Minister DEW Gunasekera has said that for war widows they are going to give Rs. 250,000.00 on a bank loan at 4% interest.  And that’s a good way of looking at it, because you understand the difficulties of people if you want to have the restitution programmes.  And we have the Tsunami restitution assistance scheme in place, and there is no problem in coming out with that once again.

About the high security zones I must mention since I was former Secretary Defense. And I think incumbent Secretary has said something very positive yesterday. I am very happy with that. There are four varieties I can think of from Jaffna, one are the people who lived at the boundaries of the core  high security zone in Jaffna; that is the top-north area just beyond Telippalai junction and above that  along the sea coast of the north.  Then the second will be the people whose houses had been acquired after paying compensation.  Now if you go to Batticaloa, houses around the airfield have been mostly acquired and we have paid compensation also. Those are the second category.  Third category are individual houses in Chavakachcheri and all that. We have houses that have been taken over when the people ran away and when the military went in.  There are lot of houses that have been taken over. Fourth one is on individual cases here and there they have taken houses. These are the four main varieties I can think of.

Now the first category of houses cannot be released so soon. I don’t think Palaly Airport boundary houses will be given by Secretary, Defense so quickly, and I don’t think he should give it also because those are things that have to be kept for security reasons.  Of course, in Chavakachcheri I think there were about 90 – 100 houses those days when I was there. There was representation made to me at that time.  We were paying some rent on the recommendation of the Divisional Secretary, Assistant Government Agent, but I think those houses will have to be given up having found some other places for them. I think it is not for me to say this, but this has to be done.  I think even the Secretary, Ministry of Defense may sometimes agree to this because I think the situation has come to more or less normalized situation and you can even withdraw a little bit to accommodate lands to be occupied by the people who were original owners.

If the places near the Palaly airfield or something like that I think it should be a military decision. I don’t think others should get involved.  But a place like Chavakachcheri let the people have an opportunity for their problem to be  looked at, giving a hearing to them and then it need not be military decisions, but it can be a civilian participation in the decision making process, so that you bring some sort of a consensual decision making in this whole thing. I don’t know whether it will be done, but it is worth exploring this type of situation in that area. But, if they are not given the houses back, or their property back, or their business premises back, let us have a fair compensation package, because without that it is very unfair to take them. I don’t think anyone would like that. You and I would not like to have that type of situation.

I can remember when I was Secretary Defense, on a request made at the Peace Talks we decided to consider reduction of army camps in the Jaffna Peninsula. I think, if I remember right, it was 142 camps which was brought down to 50 camps or something like that, by General Balagalle, and Major General Sarath Fonseka and people like that. Having got together and they came out with this.  I am not for a moment saying that you do it in the same way because this is a different administration, a different military setup, different Secretary, different Commander, different situation in the country.  But then there can be some sort of  a readjustment in the Jaffna Peninsula. I think that will be pursued definitely by the Secretary. He may  follow it up from what I heard from some of my friends who were here yesterday.

But resettlement / restitution is not an easy thing, because when people run away, few things which they carry without failing will be the identity card, the deeds, education certificates. They are generally taken away along with them. They are very important for them. But still for all, these things  can get misplaced because you run from one place to another place and another place and another place where you are, you are affected once again. These things can happen; so there only we must have some legal provision to accelerate the pace of finding  these documents.  Documentation is a big problem that has to be looked into.  Because the ownership document is being asked by the Pradeshiya Sabha, the UDA, the AGA, the Social Service Department, banks. Everyone wants this documentation. If you don’t have it you are in trouble.  Therefore, it is very necessary that you have that type of a thing being brought in.

Then you take the case of surveying, because LTTE had been holding to large areas and the Army had been holding to large areas. The buildings, the wells, the parapet walls- they are no more there,  if you walk in to those places. Even kovils and temples are not there sometimes. Boundaries are not there.  So therefore, there’s no way of surveying and saying that this area is available for you, as you were originally.  But then without a proper surveyed plan you can’t get a loan, and then are you going to change the laws of the banks or the cooperatives or whatever or the National Savings Bank or the SMIB? It is a thing that has to be looked at on the legal aspect of it and you must get surveyors to go from south, to go and do the surveying and finish it off as soon as possible. Otherwise it will be a problem. Otherwise, they will end up in courts and it will be once again blocking the restitution process.

And restitution does not end with land, house and property. As I said earlier, I like that interpretation of restitution because it has a little bit of humanitarian aspect entrenched into this. It is accepted by the UN and I presume that the government and even your Commission will accept this type of a thing. That is one reason why I wanted to give that document. Perhaps, you may have seen it earlier but I thought I must remind about that particular document.  But of course, whether you are going to be having this humanitarian attitude only for southerners or only for northerners or only for easterners is not going to work.  If you are going to be reconciling and if you are going to be taking part in a process of healing, confidence building, trust building, then in that case you can’t have various things- he is of this race, he is of that race, he is Sinhalese, he is Buddhist, he is Catholic, he is Hindu. You just can’t have it.  Race, religion, caste, origin, all those things have to be forgotten. That is why the importance of looking at these issues in a humanitarian way and according to the human rights laws. It has to be. I would stand for these human rights requirements of these affected people.  Where ever they are -there may be some person in Moratuwa who had got blasted in the Piliyandala bomb blast- that man also has the same thing.  He has the same child; he has the same wife; he is maimed; he is unable to be walking around. So therefore, you have to look at these people in that particular fashion. You can’t be having any discrimination at all in giving damages, compensation. Whether he fought here, whether he fought there is not the most important thing, because it’s a human being and a Sri Lankan who has to be looked after or his next of kin who has to be looked after.

Then life is one item which cannot be reinstated. All the other things may be. Of course, if you have lost your limb it can be replaced only with an artificial one. But life is one thing in that anyway cannot be replaced.  And then in that particular event compensation has to be looked at irrespective of who is the person who is killed and how he was killed; and, where he was killed is not the important thing. Having the death certificate and the person to receive that has to be looked for, looked at, and that is the way it should be placed.  And this I consider as food for thought for the Commission and the Government for that matter, and I hope you will make a fair recommendation to the government on this matter.

I wonder whether you are aware of the loss of limbs. Because we have not lost we don’t feel it.  I had the opportunity to be helping three soldiers who had injured their limbs where an External Fixator was required. It is Rs. 285,000. Once you put it there it can be used for about 10-15 years. But once it is fixed it goes on for about 60,70,80 days continuously and you can imagine the numbers needed. Even the Army Hospital was not having enough to do that.  I was approached by somebody. Of course, I spoke to three businessmen and they gave the money immediately.  Mr. Lalith Kotalawela, Mr. Harry Jayawardena, and Mr. Harsha de Sarem.  And the company gave Rs. 30,000 reduction because I got the money paid beforehand, because the interest which they had to pay was no more there. We got it and three boys were out within 60 days, but the next three boys had to wait for another 60 days. It is not enough. So therefore, I think the government, foreign embassies, private sector, rich people should look at this problem in a very serious manner.

And the livelihood programme is another thing. In restitution I don’t think it’s a house and property alone. It should be for the livelihood and imagine the peace situation in the North and East, especially in the Tiger held areas, where the youngsters didn’t have education. They are not qualified to do any job which is worthy of being done by a youngster in the southern area. And therefore we may have to think of new systems.  The public administration, Government and the private sector and various people will have to look into this area because otherwise you will have unattended social problems due to this. Engagement of banks, private sector, opening employment opportunities in foreign countries is another way.

We live in Colombo. Even people from Jaffna, they have come here and they live here.  People who were in Jaffna who could afford to run away, they are in the West or in Colombo with their relations or they have bought their properties and lived here, but the people up there are not that.  So I believe the Commissioners will give serious thought to these issues, which are much deep when the implementation takes place. Best recommendation that could be made is to learn from the other situations similar to what we have faced in Sri Lanka and to engage seasoned experts to manage these for which NGOs and civil society organizations could contribute in a large scale.

Then I will try to say something about reconciliation.  With that I will finish it. I am sorry I have taken a fair length of time.

(At this stage Mr. Fernando handed over a document titled ‘National unity and reconciliation’ and reading this document he gave evidence.)

Preventing recurrence requires understanding why the core conflict happened.  There should be an open dialogue on ‘why,’ without limiting it to time frames. I find that for your Commission there is a time frame that has been given, but I beg to differ with the mandate with all due respect to you and the President who has issued this and Secretary President who has issued the document. The national unity and reconciliation is a thing which we have inherited from a much longer time period.  And therefore to find ways and means of how to handle the unity and reconciliation part of this particular exercise, to be limited to a time frame, I don’t think I can agree.  But of course, I will be generalizing the things with all due respect to you and trying to say a few things about how I look at it. And we can discuss it at a later stage if you want to get more ideas on that.

In the process of finding who has done right or wrong or responsible is less important. Because as a nation all of us have done wrong. And, only few will not be in the sinners list.  Please touch your hearts, look around, go back the memory lane to fifties to be reminded of Sinhala- Tamil riots, displacement of people on and off, holocaust of 1983, chasing off the Muslims and Sinhalese  from the North, losing great men like Lalith Athulathmudali, Gamini Dissanayake, R. Premadasa, Neelan Thiruchelvam, A. Amirthalingam, Minister Ashroff, deaths of civilians during war and otherwise in the North, East, in the so called border villages like Kebetigollawa, in the city of Colombo, in Kattankudy while praying in a mosque, in Arantalawa when Buddhist Priests were on their way for a religious ceremony, Chief Secretary Herath, GAs Panchalingam and Makbool etc. So many more.

We should be ashamed of ourselves. As a Sinhalese person who has saved Tamil lives, I am a bit happier than many politicians, public officers and civilians.  These crimes should not be repeated if we wish to see non recurrence.

Political hypocrisy has been a great constraint in the search for peace, unity and reconciliation.  I believe even after the ending of the war it has not improved sufficiently.  Politicians are trying to win as an individual group and not as the representative of the nation.  There is no cooperation among them for the national crisis. The rulers wish to be non-inclusive as much as possible and the invites for cooperation is for publicity.  The Opposition is waiting till the government fails and to say with tongue in cheek “I knew the government would fail.”  Their versions are blurred. The best opportunity to market a solution is in their hands and it should be grabbed.

Wars originate in peoples’ minds and peaceful solutions too should originate in peoples’ minds. Therefore, to address the psychological issues it is important to establish trust with dignity towards each other above ethnic groups, religious groups etc. If the psychological demands are not met it may not support sustainable peace or integration, which will affect national unity.

Human factor cannot be ignored. I quote a part of an article I wrote. I was quoting Grace Machel (Mrs. Mandela) who once urged African leaders to learn from the mistakes of Mugabe.  She said “We came together to liberate ourselves but now we show that the power and the way you exercise power can pervert you to become precisely the opposite of what led you to become a freedom fighter.  The manner in which Mandela responded to de Klerk after assuming power to harness White support and the way how Mugabe acted could be lessons and guidance to all Sri Lankan politicians- Government/ Opposition.  It is noted that reconciliation and integration respectively erased divisions in South Africa, and revenge and mismanagement ruined liberated Zimbabwe.”  This was published in the Island Newspaper.

Have we got a role for Civil Society, Media, NGO’s, Clergy, Professionals, Trade Unions, various Associations, Private Sector etc. in the exercise of national unity, reconciliation and peace programmes and projects? One may say “Yes”, but the sectarian manner in which they are treated will frustrate them and this has to be cleared. It does not mean that these organizations should be allowed to trample with the sovereignty and integrity of the country and the nation. Checks and balances have to be developed.  Our language, education, university, employment, foreign policy, etc. have erred for which all political parties, leaderships, and bureaucracies have to be blamed. Therefore, rather than to find who erred, the better option is to find where and how we erred, as a measure to commence reconciliation and maintain national unity.

Restitution of properties, return to origins, enjoying the original environment, improving livelihoods etc. will be required and it will be necessary to ensure peaceful handling of affairs.  Now the war is over, for national unity and reconciliation I wish the political solution filled with magnanimity will be found by those concerned.  Thinking that infrastructure development may heal the wounded hearts and reconcile is a misnomer. Even some multilateral donors, political leaders, media men and women too think in the same manner and I pity them.

Create the political will, social will, ideological stances and financing will, will to develop institutions and mechanisms and take guarded risk to ensure sustainability.  Address the young, youths, under graduates, public service, clergy etc. and create the public will to be an integrated society.  To quote a simple example let us learn from Sierra Leon experience, where they wanted the Truth and Reconciliation Commission report to be incorporated into education programmes from primary to tertiary levels.  Legalize the ideology, mechanisms and institutions and make process and procedures etc. transparent and easily understood.  Do not forget that the worst affected by disasters are the poor, uneducated, the women and the children. The rich and the powerful have already run away to the West or are permanent residents in the capital city and have other connections to deal with their problems. And hence complex knotty processes and procedures will not be welcome.

Laws are not the only way out for reconciliation and national unity. The implementers of law will be really important. The trend after the great heroic war victory as criticized by some in the northern society is the fault of regimentalizing and centralizing every issue, inclusive of human management issues. This will bring in opportunities for new aberrations than peace, unity and reconciliation.  Union College and Cancer Hospital I can remember were not to be given by the military at one time.  I give you one good example on Mr. Paskaralingam who was here. I have been working under him.  We were appointed to the National Reconstruction Steering Committee, headed by him. I was the CEO- 1987 to 1989. The way how he used to take up these issues- he was very quick, and very easily amenable to situations and acting very rightly to assist the people in a different way than an ordinary bureaucrat.

Already the Tamil political groups are at loggerheads arguing on this issue. If the Commission speaks with Tamil politicians who are not with the government and public officers in camera from those areas you may understand the reality. I am sorry to say that, because they speak to us on one to one sometimes.

There is a great role for the religious leaders and media to play in peace, nation building and reconciliation and to stop recurrence of what we have experienced for 30 years.  They should eradicate polarizing thinking in society and give sanity, if reconciliation and unity are to be achieved.

I wish to speak a few words on two things only and finish my presentation.

I quote the preamble to Act No. 34 of 1995 Promotion of National Unity and Reconciliation 1995 in South Africa.  When you listen to this you will see how we should look at this problem. I quote from the Preamble. “To provide for the investigation and the establishment of as complete a picture as possible of the nature, causes and extent of gross violations of human rights committed during the period from 1st March 1960 to the cut off date contemplated in the Constitution, within or outside the Republic, emanating from the conflicts of the past, and the fate or whereabouts of the victims of such violations;  the granting of amnesty to persons who will make full disclosure of all the relevant facts relating to acts associated with the political objective committed in the course of the conflict of the past during the said period; affording victims an opportunity to relate the violations they suffered; the taking of measures aimed at the granting of reparation to, and the rehabilitation and the restoration of the human and the civil dignity of victims of violation of human rights; reporting to the nation about such violations and victims; the making of recommendations aimed at the prevention of the Commission of gross violations of human rights; and for the said purposes to provide for the establishment of a Truth and Reconciliation Commission, a Committee on Human Rights Violations, a Committee on Amnesty and a Committee on Reparation and Rehabilitation; and to confer certain powers on assigned certain functions to and impose certain duties upon that Commission and those Committees; and to provide for matters connected therewith.”

I don’t find the words ‘human rights’ in the Gazette Notification. Once again I say that to this Commission. But every time I open a web site or an office online news sheet, I see human rights as a great concern for foreign governmental, multilateral organizations like the UN.  May be that their contentions are wrong, yet they are clamoring.  It is a pity that concerns on violations of human rights by others are not so badly discussed.  Can we find some solution for this ever nagging problem? It may be by establishment of human rights respecting institutions, mechanisms as one could see from the above.  It may be by getting the Diaspora members involved in the North and East issues so that they may realize the true status.

The second matter I quote is somewhat applicable situation from another country though ours is quite different from it.  It is to suggest that we learn the principles from Liberia and apply because the Tamil Diaspora is still the financing arm for superficial problem creators than the internal Tamil politicians. They are the people who will do this.

Let me speak of the Liberian Diaspora Advisory Board. Its Mission Statement is “to harness resources of the Liberian Diaspora to support “Lift Liberia”. There is a programme, the government’s official poverty reduction strategy. The board members will engage the Liberian Diaspora on four central pillars that correspond with the PRS mandate of the Liberian Government, which articulates the administration’s vision and strategies for moving towards rapid inclusive and sustainable growth and development during the period 2008 to 2011.

It focuses on ; one- expanding peace and security, two- revitalizing the economy, three- strengthening governance  and the rule of law, and , four- rehabilitating infrastructure and delivering basic services to the Liberian people.  Are not those we Sri Lankans are pursuing too?

Challenges faced by the Liberians include – the availability and coordinated disbursement of financing,  leadership administrative and technical capacity, external stability and economic contingent effects,  internal security, and, the realization of economic growth projections.  Are these the challenges we are faced with? If proper respect, dignity and access is provided some of these activities could be in the hands of the Tamil Diaspora.

The Board is tasked with among other things, developing models for the coordinated recruitment of professionals to work for pay or as volunteers in strategic areas and positively impacting Liberia’s administrative and technical capacity in such areas as education, health care, infrastructure development and finance.  Can we learn from this experience? What can we drop from the activities, and what could be expanded or introduced? These are issues that should be considered by this Commission and the Government of Sri Lanka.

Based on research done on Liberia there is a possibility to initiate the process that is ultimate aimed to establish formal institutional mechanisms for linking the Sri Lankan Diaspora­ mostly Tamil to Sri Lanka.  The ultimate goal would be to create by law an institutional mechanism and policy framework that would tap and capitalize on the enormous development  potential of the Tamil Diaspora; bring to the attention of the Government of Sri Lanka, the Diaspora, specific, social, economic  and political concerns inclusive of their inter-ethnic integration to counter any possible future conflicts; create and foster immigrant network for support; enable the development and management of a comprehensive data base on the growing pool of skills and talents in Sri Lanka Diaspora which can be harnessed for development at home; and, ensure the development of policies on innovative and creative ways to encourage and retain active Diaspora interest and investment in Sri Lanka.

The government is trying it through engagement of certain categories of the Diaspora. Is it the most acceptable way? If it is, it is good, but some in the Diaspora think otherwise. Since I have no political or other links with them, my judgment may be wrong, but it is worth the while to look at this further. Can we see some development through these initiatives? The issues are complex and the solutions too are complex, but needed for sustainable peace.

To end my evidence I may quote Nelson Mandela, “There is no way for peace; peace is the way.”

Thank you, Sirs.

Chairman

Now Mr. Fernando, Mr. Anton Balasingham in his book has said that the CFA was drafted by the Norwegians in consultation with him and brought to Sri Lanka. In this background would you say that the CFA was heavily diced in favor of the LTTE?

Mr. Austin Fernando

First of all I must confess that I was not in the drafting team. I was privy to the CFA when the Navy Commander and the Army Commander asked me to take it up with the –

Chairman

No one was in the drafting committee. It is the Norwegians and Anton Balasingham

Mr. Austin Fernando

That I am not sure, I think I read this in Politics of Duplicity. Anyway what I say is, I won’t say that CFA is  ….. You are right in saying that there was some sort of leverage for these people.  As I said earlier when you are asking the temples to be vacated in 30 days, which is a difficult task, it was not in favor of us – the soldiers of the Government of Sri Lanka. When we were asked to leave all the schools within 160 days that was a big task, because we were mostly in schools, because schools were the places where we had all the time available for us to go and occupy, just at short notice.  So that type of thing can be interpreted, one can interpret as very favorable to LTTE.

But I have another point of view now. As a commentator I would say, if we had a totally favorable CFA, which is favorable to the Sri Lankan government, then LTTE wouldn’t have come.  And we wouldn’t have gone if all the facilities were helpful to LTTE. So there were certain compromises that have to come, but the compromises, if someone says that it had been favorable to them sometimes, it is ‘Yes’.

But at the same time there were certain things like for example under 1.2, if I remember right, it said “Neither party shall engage in any offensive military operations. This requires the total cessation of all military action and includes, but is not limited to, such acts…..” and they gave the acts.  Suicide missions were included in, but of course the government gave into the DPA Units.  1-3 said “The Sri Lankan  armed forces shall continue to perform their legitimate task for safeguarding the sovereignty and territorial integrity of Sri Lanka without engaging in offensive operations against LTTE.”  I was also a little bit perturbed how to do it without being in offensive operations.

But there was a Statement of Intent, which was published by the Prime Minister’s office, I think the day after the signing of this, which said that the military has the right to do the correct thing, do their task irrespective of the fact that there is a CFA. And (according to) what I quoted from John Gooneratne earlier, when we attacked some of these ships and killed about 30-40, (I don’t know how many. I can’t remember the exact numbers killed) LTTE cadres they never challenged it and said that we did not have a right.  They always challenged it by saying the ship was 225 miles away from the coast or they were carrying not military hardware but things like food and clothes and things like that.  That shows that what they said….. It is true that what you say is an arguable point but there were certain statements made like the Statement of Intent, which cleared some of those things.

Chairman

Mr. Fernando, now, this Facilitator when there were violations took up the position he was virtually impotent to do anything. He didn’t have any power to do anything to ensure those violations will not occur in the future.  Now, given the role played by Norway would you say that this was willful neglect on the part of Norway, rather than saying we are a Facilitator and we can’t interfere?

Mr. Austin Fernando

In my presentation I said that because they were not a military power or an economic power for that matter, which can deal with these people, they were helpless in a way. And in fact, I think Merril Gunaratne former DIG and the NIB Chief who had written a book, in it he says that if we are going to have a Facilitator or Monitor (I can’t remember exactly) we should have militarily forceful party as the Facilitator or the Monitor. Otherwise you can’t handle it with a group like the LTTE.

Chairman

Now it was reported, actually even Mrs. Hiranthi Wijemanne when she made her representations here said how child soldiers were being conscripted during the CFA.  Did the facilitators at any stage try to bring about international pressure on the LTTE to abandon the conscription of child soldiers?

Mr. Austin Fernando

Yes that’s a very good question. Number one- They tried in a way. At the last negotiations in Bangkok, when you were the High Commissioner, Ambassador in Thailand – when Commissioner Palihakkara was there- the decision was taken that we should engage Ian Martin to prepare a document on this.  And in fact he prepared it and brought it to Tokyo next time in March. And he was personally present, I can remember, and this was discussed at that point. I hope my dates and timing and places are right. I am just telling you on my memory.  It was taken up. But the problem was there we came across the problem of LTTE saying that we should not have the National Human Rights Commission looking into this and some sort of argument like that if I remember right and thereafter we got blocked there. That is internationally how the Facilitator was trying to bring international pressure.  Not pressure really to look into this.

I think what happened was when UNICEF’s Ted Chebim was here,  he wanted to have a programme but I can remember ‘Sunday Leader” went to town on that and it just blasted the programme saying that it was very partial towards the LTTE.

Thirdly, I can remember when Trond Furuhovde was there I wanted this to be checked up and I think they had a camp somewhere off Karadianaru in Batticaloa and I wanted SLMM to report to me on what’s happening.  Mr. Karuna Amman at that time was in the LTTE and I don’t think he allowed them to go in and see this place even. So we had the difficulty- yes.

Chairman

Now in that connection, I think it was Mr. Balasingham who said that they don’t want international scrutiny of human rights, but they had confidence in the National Human Rights Commission. And the writ of the National Human Rights Commission did not lie in those areas. So wasn’t that a ploy on the part of Balasingham and the LTTE to ensure that there was no monitoring of Human Rights violations by the LTTE.

Mr. Austin Fernando

I agree with you

HMGS Palihakkara

Mr. Fernando first of all please forgive me for addressing formally since this is a —.  First of all let me thank you for your comprehensive documentation provided on restitution and reconciliation as well as CFA.  I have an observation and two questions. The observation is that I do not agree with you that the human rights issues cannot be addressed in the Commission. Commission warrant says that conflict recurrence of areas relevant to prevention of recurrence of conflict and all attendant concerns.  So it’s wide enough and I would invite you to address them liberally, if you have them.  That’s the observation.

My two questions are that you have brought out this very useful information about the Liberian Diaspora Advisory Board and in fact a number of comments have been  made here on the desirability and the need to engage the Diaspora because reconciliation has to take place at home and abroad in our case, because of the very proactive and sometimes disruptive Diaspora activity that is going on.  I am not sure whether I agree here when you say that the government is trying to engage only one group, section of Diaspora. The problem with the engaging Diaspora it seems is that one section of the Diaspora is trying to reinvent the LTTE abroad, whereas Tamil people have rejected the LTTE here in Sri Lanka. So that’s the difficulty that arises there.  So I suppose what one can do is to try and see those who want to promote reconciliation to be engaged first. What are your thoughts on that? That is one question.

Second question is, now this is – I’ll try to rephrase it. Now there is general agreement that this cease fire agreement- even in your own observations- it was a failure for a number of reasons, and that in hindsight. Since you were very forthright in your comments which I really appreciate, in hindsight what are your thoughts about “this as a model for negotiations between a state and a violent non state group” as a model? Since we are about lessons learning we would like to have your thoughts in hindsight. Thank you.

Mr. Austin Fernando

I take your first remark about the human rights. When you listened to my presentation with the preamble of the South African law, the usage of the terminology ‘human rights’ was more than any other thing or restitution or something like that, or confidence building or some sort of a thing. Probably I am not for a moment saying that you copy the South African one because you can’t, because our society, our culture, our way of thinking, our particular conflict is not exactly the same thing. So therefore we can’t be copying.  But we can be taking some of the principles behind it. Why human rights are such an important thing in that?  So what I say is rather than as the Chairman said, as you said it is “attendant” etc. etc. type of thing- rather than putting it that way (faking it is very obvious!)- because there was criticism made as you all were appointed to the Commission- I can’t remember who did this comment, because there are some commentators who are really nasty, anything done by the government is wrong like you know, I am not one of them- I can remember  saying that “They are not interested in human rights”, but I am not a person who says that knowing some of you personally so well. I know that you will not overlook the value of human rights in the Sri Lankan context. But what I say is, it’s true that it’s available but it’s very much hidden type thing rather than straight forward.  Be straight forward- because you have been very straight forward about the CFA, about the failures, about the responsibilities. I am not for a moment blaming you all because you have been appointed, you are carrying out a task under the Presidential Commission Act. So that is what I said. Personally speaking I have been telling many people that I have full confidence in a team like you, because out of you gentlemen and Lady, I think I know about four or five of you personally well, at least we have heard and seen.  So therefore, I have my confidence in that.  It’s not a matter of my not having to do with or you not having anything to do with human rights. You are interested. What I say is I harped on that when I handed over that particular document about the Hand Book.  It is harping on human rights. It’s the UN. What I say is when it is harping on human rights in all those cases, when you are putting it as an attendant type of thing it looks a little soggy. That’s what happened to me on this comment.  Thank you for that.

Second thing is Diaspora. I have not said that government is going with one party. I repeat it “The government is trying it through engaging certain categories of the Diaspora”. It’s well known; I don’t want to hide it that the government is trying to do it with KP. I know that  government is working with Lenin Benedict, then Asoka there is some Sinhalese gentlemen, three people who are working in Canada.  And I know that Lenin Benedict comes here and discuss this; and the speech made by Dr. Rohan Gunaratne last week, I think at the Nandadasa Kodagoda Memorial Lecture.  So those are all ways of telling us what the government is doing.

What I say is we have our own Tamil friends who are living abroad for a long time and some of them were of course I know that they would have been sympathetic towards LTTE at that time. Some of them shall I say at a very low ebb of thinking on that type of thinking.  Now when you speak to them, (very rarely we meet them), we feel that there should be a little more widened scope, widened clientele to be brought in rather than some few people who come up and down, go away and speak on behalf of the Tamil Diaspora.  I don’t mind speaking to you personally because I don’t want to be speaking to you in public, and I don’t want to make it a camera issue either. So therefore that is that number two.

No. 3- I think you must look at the background. This is not to whitewash the CFA or the then UNF government, because I am not a politician to whitewash anybody.  What I want to say is, must look at the background situation for the CFA. We had a minus 1.4 GDP growth in Sri Lanka; we had we had more than 60,000 deserters; we didn’t have money to buy our own stuff’; and the stuff which was in the military, we couldn’t manage it; we couldn’t give body armour, we couldn’t give tennis shoes, we couldn’t give banyans, T-shirts, and things like that for soldiers. We were at a situation like this.  I know one country, that ambassador was coming to me asking me for USD 400,000 to be paid on loan. Fellows were begging.  And there was another Company which was asking for 125 million dollars from me for the purchases made during President Kumaratunga’s time for the war.  So in that background I justify going into some sort of political solution in this manner . I agree with the then government.  The reason is I still remember the Secretary, Treasury at that time was insisting that we save money from this because we couldn’t manage the budget over there.

So in that background we had to have a document and a CFA is a basic document which should be there, because if you go to Mozambique, if you go to Philippines or if you go to any place like that, Sierra Leon, if you had to be having this type of a background, we have been having this type of a situation.  And then in that background we had to do it but the only thing is we were I think rushing a little too fast to go for negotiations based on a document like this. That I believe was not very good. I think you will agree with me. Every month to go somewhere and discuss and hardly anything happens here. That gave the feeling to the LTTE that we are not doing something.  That gave the feeling to the people here, media and all that, anti government forces- they felt that we were rushing through.  I think of course people do that and on the same CFA even President Rajapaksa, he came into power in November he went for talks in February or March. But he was continuing something which was done by the previous government. Even under President Kumaratunga though there were no negotiations as such Vidar Helgesen and all these people were meeting her and discussing things about the peace process.  So therefore, I have agreed the CFA had its own weaknesses in certain areas and with that weakness if we are trying to rush through peace negotiations that won’t work.

I think that happened to President Rajapaksa also. That was on a different background because the situation was that they were attacking our Dvora crafts, they were closing Mavilaru water, and so many things were done. That’s a different way, but with us also they were doing it, their ships were attacked and they were killed and like that.  So I think that one has to be careful when going for negotiations based on this type of thing when things were going a little bit haywire  at the field level.

Dr. Rohan Perera

Mr. Fernando, let me thank you very much for making representations before this Commission in a very comprehensive and structured way, which will certainly help our work. I have two questions. One is I think you just referred to it again in your response to my colleague.  At the very beginning you spoke of the weaknesses in the agreement and you cited these particular articles, which involve the time lines, vacating of schools and public buildings, places of worship, the opening of A9 and you did also mention the fact that there were some consultations before the Agreement was signed.  Now as Secretary, Defense were you satisfied, because these are areas where the defense input or the input of the security services were critical?  As you said unless the military was in a position to vacate within that stipulated time frame it was a non starter.  Now were you satisfied as Secretary Defense that those consultations with the military and the Defense establishment were substantial? Because again I am harping back to what you just mentioned, there was urgency, there was a rush. Now in that background were these consultations within the Defense establishment substantial? And did the security forces have the opportunity to make a distinct impact on these particular provisions of the agreement, which was critical?

Mr. Austin Fernando

This particular information about the CFA coming into being was not official intimation to anyone of us- to the Commanders, or to me, or anyone.  But when we heard about it from whatever source I think it was the Army Commander or the Navy Commander who brought it to my notice.  When it was brought to my notice, immediately I said “Well, if something is going against your establishment, we cannot agree. Let’s discuss” and the discussion was (I think that particular day the discussion would have gone with Prof. G.L. Peiris and the Minister Mr. Tilak Marapana) for about 1,1/2 hours or 2 hours we were arguing. And I think the case was well established (At least I think in our own minds we felt the case was well established.) because we were given a copy of a draft, and then once we have read it we found that it has to be changed, and then we made our points clear to the two politicians.

Dr. Rohan Perera

When you said case was well established what you mean the case for change or amendment or revision.

Mr. Austin Fernando

Yes, we requested revision.

Dr. Rohan Perera

So as Secretary Defense you would have been satisfied that you had the opportunity of making your side of the argument.

Mr. Austin Fernando

When we spoke to them, at the end of the day they said “Well we will look into this and your grievances will be looked after.”  I can’t tell you exact words which I remembered at the time when I wrote the book that is something to that effect I can’t remember the exact words.  So when your own Minister and a senior Minister tells you that it will be looked at and something will be done, we accepted it.  You have been a public servant, I have been a public servant we know that sometimes when these people say that we agree, and sometimes it may be we have done the wrong thing by agreeing.  But we agreed with them and we said “OK, then what else to do?” When we saw the document in public we found that our requirements have not been satisfied. By that time it was too late.

In fact Bernard Gunatillake who was I think much more closer to than me for this one- I don’t know whether he was involved or not- he had said this that hasty decision, his words used in a speech which he made in USA in some university or some place like that. He said it’s a hasty thing but I thought he was in a better position than me to correct it if it was because he was more or less in and out of this thing, I presume. I don’t know whether he was also like me- knowing and not being heard- you seem to be very close to power, but really you are far away from power, in changing. We don’t know whether it was the case in Bernard but I am sure I am that because we had told them and if it had not happened what can a Secretary do when the government has taken this decision?.

Dr. Rohan Perera

Now this is not a question of apportioning of any blame but just to find out the institutional …..

Mr. Austin Fernando

We were not involved at all in the preparation of the document and I don’t know who was involved either.

Dr. Rohan Perera

The second question I would like to raise is you did also touch on the positives of this?

Mr. Austin Fernando

Yes

Dr. Rohan Perera

Now we have also heard of the views expressed that despite the obvious lack of bone-fides on the part of the LTTE, despite all the violations, their reaction to the human rights being put on their agenda, the  government persisted with the process for the reason that there was a belief or expectation ‘the longer you keep the LTTE at the table, there could be certain implosions or internal contradictions within the guerilla group, who is away from active combat and that could lead to certain break-ups or internal contradictions’.  And is also sort to argue from that point of the  defection of the Karuna faction was the outcome or the CFA was a contributory factor. Now as a person who has maintained the close working relationship with Karuna would like to hear your views on that line of argument.

Mr. Austin Fernando

I can’t be giving a view on what the government was intending to do by delaying it or what ever. It was a political decision which I was not privy to  and I didn’t get involve in that type of a discussion or no one asked me for my observations either.

But the second question related to that about the breakaway of Karuna Amman from the LTTE, I have my different opinion on this.  Karuna Amman was, I think, his breakaway from LTTE, the reasons are best known to him.  Some of the UNP MP’s taking the credit for his breakaway, I very much doubt that it was such an important thing.  But, this I can say- that Karuna Amman would have opened his eyes; and found things done in a different way. As far as I understood him he is a very energetic young man who wants to go very fast.

I’ll tell you one example, once I met him in Vavunativu in Batticaloa. And while having lunch he said- we were seated opposite- and he had a man called Varthan who was his interpreter, Varthan said that Karuna Amman wants to know whether I can make arrangements for a Technical College to be given to Batticaloa.  In fairness to me you must understand that when such a request is made you don’t budge; you have to do that, because that because that’s a part of the game. So I said “Yes, we will try, its not coming under my purview, but let’s try”. And the first thing I did when I was in Colombo was-(there was Mr. Saman Ediriweera who was the Secretary, of the Ministry Tertiary Education ) I rang up and said “Saman I want this done”. I didn’t ask him whether it can be done, I said “I want this done.”  He said “Yes Sir, no problem we’ll do it and the only thing is, give me a little time. I have to find out.”  Then when I found out that it was OK, after about a month or so I met Karuna Amman again, but he was not asking me the question, and he was not telephoning me and asking me whether his request is coming.  I am just giving an example . And, then since he was not asking me at one stage I said ‘I say, Karuna I forgot about it to tell you that this is what happened, it’s through, you can do it.’  You know what he said? He said ‘I want to ask TS.’  I am sure Tamil Selvam understood what I was aiming at. He didn’t want Karuna Amman to have his own way. And Karuna Amman is a smart man and he wouldn’t have thought, he would have sometimes asked him, and Tamil Selvam would have said “No, nothing doing”. He didn’t want Karuna Amman to have direct relationship with us,  because that was one way of fishing him into the other side. That’s how you would do and I would do.  Therefore, Karuna Amman would have been frustrated about this type of situation. Everything you have to ask them. And he considered him as a great warrior.  I can remember Shantha Kottegoda, former Army Commander telling me that he was a wonderful fighter.  So a man who had been fighting like that to be asking Tamil Selvam[2] everything wouldn’t have been so satisfactory to him.  So I think the motivation for him to breakaway would have been coming straight from LTTE and we don’t know what was happening between him and Prabakaran, for that matter -whether there was any allegations and things like that whether it was there we didn’t know.

Prof. Karu Hangewatte

Thank you Mr. Fernando for being here and making a presentation to us. I have a few questions. First of course to start off by saying that listening to your presentation on the CFA- that part sounded to me at least more like an indictment of the Sri Lankan bureaucracy, which even at the highest levels would just succumb to political pressure and knowingly would commit mistakes, as you admitted. “We have done wrong, because the Minister asked us to do” and that’s a little bit bothering at least to me and also about the CFA.

I wonder if the CFA had any provision for making rules to regulate contingency situations as you went on, as everything could not be provided in one document.  If that was the case the bureaucrats took any measures any steps to correct mistakes through regulation, on a contingency basis.

And the question No. 2 is I understand the part about the CFA helped in terms of I mean financially to this cash trapped government at that time. But one must also ask the question at least you as the Secretary Defense whether it helped us money- for the government (not individually), whether that was a good reason morally to subject a population, the people to a group that was terrorizing them. So that is also. I would like to briefly get a response to that.

No.  3 as regards accounting I think you made somewhat clear but just be on the latter part of the presentation.  Would you agree that the accounting means punitive measures or whether such measures lead to reconciliation or even further misery?

Mr. Austin Fernando

First thing, about the public servants. I agree with you the public servants of the good old days are no more in Sri Lanka. With lot of pity I say that. The public servants of Commissioner Chandi Chanmugam’s time are no more.  Public Servants of my time, now I am 68 years young- public servants of my time are no more here.  And if you are trying to find public servants I think we had the courage to stand back and tell the Ministers where to draw the line. We have been doing that at our own level. We have been handling ministers and we may have another Commission to look into this I think, if you want that. For hours I can tell you stories about public servants.  And right now that is not there. I don’t know how many of them are there, if you count it only with one hands fingers you may find.  That’s a pity and I sympathize with the public service and the country and people like you who are quite interested in knowing what it is. Number one.

No. 2. I think the CFA was signed on the 22nd of February and by about September 19th we were going for talks. We did certain changes. Now for example in the CFA you don’t have anything to say about transfer of LTTE cadres from one place to another place; sometimes disabled cadres. We did that. We transferred LTTE cadres by sea, not in our boats.  I think Commissioner Rohan Perera knows about this. We have been discussing these issues so there were so many things: transfer of Karuna from Colombo to Batticaloa or Tamil Selvam from Batticaloa to Trincomalee on certain times. We did that. And those were not in the CFA, but by agreement by using the SLMM as the – and even other things.

Very serious things like the Rules of Engagement at sea; we got the Rule of Engagement prepared and discussed with SLMM; SLMM carried it to Kilinochchi. They brought back with agreement then we said “OK, then here after we agree and we adhere to this.”  And I can remember when Karuna Amman came one night and where I ordered him to be saved, and he was saved.  On that particular day I told the SLMM “I have agreed to this type of agreements because not because it is in the CFA because we wanted to create some sort of an agreement and hereafter I am not there.” And if you go through the papers, that is the only determination which has been sent to Vida Helgesen, Eric Solheim all these people by the SLMM.

Because we had a rule and that was accepted, and it was known to people that is why that particular Navy officer asked me ‘Sir he is violating the CFA, he is violating the rules of engagement, shall I shoot him?’  I said “No”.  People knew about it also. Not only we made those things we shared it with our officers, we shared it with the LTTE, because that is as I said like Barak Obama we had to take risks, we had to find solutions. These things you know you take lot of risks in this. I did that.

And the 3rd question, I am sorry?

Now financial benefits would have come to them in different ways.  I think it was Prince Aga Khan who said in the book called Refugees, he said when the word ‘disaster’ is written in Chinese language it has two meanings.  One is danger, other one is opportunity, well that would have been, I don’t deny that. That’s a part of the game. If UNHCR Chief Aga Khan can say that what can I say?

And the other thing is people in the areas the economic grew within 2 years the GDP contribution from Northern Province was increased up to about 12% or 10% or something like that from zero like; in Eastern Province it came up to about 13% or 14% from 4% or so.  Where did that money go? It went to the people. So financially it was there. But at the same time some other people would have got it and it happens even here in the South, not only in the North.

Chairman:

I must on behalf of the Commission thank you for the wide canvas of views that you articulated and I think some of the views that you articulated on principles of housing and property restitution of refugees and displaced persons and reconciliation would be of immense value to the Commission in formulating our recommendations.  Thank you.

So once again I thank you for having come over here and spend time with us and your contribution was most valuable and appreciated.

Mr. Austin Fernando

Thank you, it was a pleasure to be meeting you.

Chairman:

Thank you again Mr. Austin Fernando.


1 I have while giving evidence said “wasn’t” instead of “were” at this point. It is a mistake I have made for which I regret.

[2] Here instead of “Tamil Selvam” I have said “Karuna Amman,” which is a slip for which I regret. It is correctly stated here, which is quite apparent from the evidence that followed and preceded.

  • TT

    “And the Muslims: they were mentioned in the CFA. But they were, shall I say, (if you permit me to use that) ‘a secondary type group’ and this was not liked by the Muslims at all.”

    This is really worrying. Why was it signed this way?

    Restitution includes resettling all displaced who are living in Sri Lanka which essentially includes Sinhalese and Muslims too. Natural growth rate of the displaced populations must be included.

  • punitham

    ”then later the Oslo talks where Palitha Kohona went to Oslo and he couldn’t be having these meetings and things like that”

    Austin, pl elaborate a little bit.

  • punitham

    Some parts of this presentation have corollaries here:

    Development Dilemmas: Challenges of Working in Conflict and Post Conflict situations in South Asia, DFID Conference, 5 – 6 March 2007: ‘’Economic growth is not an alternative to political conflict resolution. In Sri Lanka donor pressure to address development issues and post conflict reconstruction in 2002/3 could not make up for the lack of political progress in dealing with the central issue of the conflict. Aid became a distraction from the peace process, and then a point of division. Donors had inflated ideas about the importance of economic incentives, whereas for the LTTE the political factors were far more important.”

  • ordinary lankan

    As a venerable public servant – whose tribe as you say is becoming extinct I would like to suggest an angle that you might want to explore – perhaps in another book you could write in your well earned retirement.

    all things said and done LTTE Terrorism was defeated – and many human beings contributed towards its downfall. To me there is a story here – and one which is relevant for posterity.

    That story is about the way the men and women in the armed forces – the public service and society – reviewed past mistakes – past personal shortcomings and rectified these mistakes for the final showdown to ensure the defeat of the LTTE. There are people who claim that the last phase led to human rights abuses – if so that is a negative – but we are interested in people who changed themselves to respond to this challenge – and were thus able to effect a transformation that touched their inner being in the process.

    are you interested in such an inquiry? do you think the LLRC is?

  • punitham

    Austin
    What’s the title of your book please?
    Thanks.

  • ordinary lankan

    MY BELLY IS WHITE …

    that is the title Punitham

    so just to press on with my previous point – are we as a nation interested in personal or just academic learning? Does the personal learning dimension exist anymore – does it exist at all in the LLRC

    and finally is Mr Fernando interested in a dialogue with ordinary citizens like us?

  • punitham

    Thank you, ordinarylankan.