Image courtesy Centre for Human Rights
“Reconciliation requires changes of heart and spirit, as well as social and economic change. It requires symbolic as well as practical action” – Malcolm Fraser
Once again Sri Lanka is in the thralls of yet another ethnic conundrum. It would seem that Sri Lankans like to live dangerously, in the midst of controversy, conflict and violence. Why else will we on the eve of the Human Rights Commission sessions coming up in March 2013 impeach our chief justice raising issues of the independence of the judiciary followed much too soon by sundry chauvinist organizations such as the Bodhi Bala Sena, Hela Sinhala Hiru mushrooming and being dialogued with at the highest political levels. Even more disturbing is the police inaction in the face of communal agitation lending credence to theories of compliance at high political levels. It is a tragedy that many of these organizations with offensive and objectionable agendas that create ethnic and religious hostilities draw their inspiration by prefixing the names of their organizations with The Buddha as their ‘patron’. Obviously none of them have studied the Buddhist philosophy of tolerance and compassion and more specifically the Buddhist philosophy’s special message exhorting people to look upon the human race without the labels and narrow distinctions of race, caste or religion.
Hot on the heels of these disconcerting events within the country, Sri Lanka will be confronted with yet another resolution introduced by the US calling for response to charges of accountability during the last stages of the war. The focus of the people in the country is also on the response that the government of Sri Lanka will offer to the Human Rights Commission based on the progress made through the National Action Plan formulated by the Government to implement the LLRC recommendations to provide some of the answers to the domestic and international queries on rights violations and action for reconciliation.
The difficulty in reviewing the progress on the National Action Plan is the non-availability of information on any kind of assessment on the movement forward in the implementation of the LLRC recommendations. The comments on this paper are therefore based on random reporting in the media as well as conversations with individuals from the North and the East. While it is necessary to state that the observations below are based on unsubstantiated evidence, the comments made are in the best interests of the Nation. It is nonetheless necessary to point out that the authorities have been remiss in not feeding the public with information regarding the progress made in the implementation of the National Action Plan.
Even as the country moves into the dawn of 2013, in Sri Lanka too, a persistent perception prevails that there is an unhurried approach by the authorities to implement the findings of the LLRC Commission. In the post conflict period, to the average Sri Lankan the most pertinent part of the Commission’s mandate is the area that concentrates on reconciliation for ethnic harmony and nation building. As a prelude to the healing process it was recommended that “a collective act of contrition by the political leaders and civil society of both Sinhala and Tamil communities” be declared for their failure to forge a consensus for a political solution to the ethnic problem. The blame falls jointly on the Government, the opposition and the minorities who have failed to make the necessary accommodation essential for movement forward. Leaders from the majority and minority ethnic groups have jelled once again into the familiar track of non- accommodation and emotional diatribe with very little convincing effort made to find new approaches for serious analysis of the causes that led to the conflict and its possible resolution.
Cited below are some policy decisions that have failed to receive sustained attention in implementation and progress assessment in the national Action Plan. For instance, promotion of trilingual policy was recommended and despite the fact that this policy has been formally adopted, its implementation by The Official Languages commission in many of the language provisions remain incomplete; training Tamil speaking officers to be in all public offices was seriously undertaken with the training of Sinhala officers in Tamil and vice versa (with substantial monetary incentive to motivate participants) has been discontinued with the change of Minister; the teaching of all three languages in schools has become a non –starter without the serious intent to find the required staff for training; the request to sing the national anthem in the two languages, Sinhala and Tamil has been denied, although the practice already existed; attempt to come to a political settlement between the Government and the TNA remains a protracted process yielding no results; the two essential tools for effective negotiation, a formal agenda and a time schedule were never conceptualized; the suggestion for a Parliamentary Select Committee to arrive at a resolution of the ethnic problem has still not been appointed months after the suggestion was mooted. Part of the problem seems to be the inability of the Sinhala leaders to gauge southern opinion on these matters. There is a nagging fear that active move to take any ‘just’ action will be interpreted as concessions to the minorities. Therefore the preferred choice is to play safe and do nothing to sustain their electoral strength. Consequently even the simple gesture of appeasement recommended by the commission as “a commemorative gesture” to be held on an important national day to give “the necessary impetus to the reconciliation process” has not been possible even though victory celebrations have been conducted annually. The 65th Independence Day was celebrated without any input from the recommendations of the LLRC.
Deterrent Legislation to prevent ethnic and racial hostilities
Quite frequently speeches that border on expressions of hostility towards minorities have been voiced and gone ‘uncensored’. Recent expressions of hostility towards the Muslim minority, to their religion and economic interests appear to become the next contentious issue in ethnic and religious rivalry. Attempts to create communal disharmony between the Muslims and the Sinhalese have been observed and the alarming stance of police inertia to curb such demonstrations that will destroy the hard won peace in the country is alarming. The recommendation of the commission that “deterrent laws” be enacted “to deal with such practices and these laws should be strictly enforced” has gone unheeded. The Commission has also suggested that inter faith groups, facilitate the establishment of a mechanism that serves as an early warning and early diffusing system to ensure that communal or religious tensions or friction does not lead to conflict has not been acted upon as well. The response in the Action Plan has been to continue with the implementation of the existing Civil Defense Committee program of the Police and Community Policing program as well as to implement capacity building programs for the Police Officers in CDCs. While this mechanism has by and large failed to deliver, the Commission has suggested that in consultation with the inter faith group a mechanism designed that serves as an early warning and early diffusing system to ensure that communal or religious tension or friction does not lead to conflict. This is a softer, more spiritual approach that will link the communities through better understanding of their mutual concerns. It is disconcerting to note that this has also been ignored.
Power sharing for conflict resolution
Other important issues on which the Commission has made recommendations are on the need to go into the root causes of the conflict and as one of the tools of resolution take meaningful steps to devolve power in the North and East. The Commission was keen that the government spells out the form and content of what it envisages as an acceptable solution for devolution. Elections to the Eastern Provincial Council has been held but a valuable chance of forming a balanced administration with shared power by all three communities was missed by the government brokering a deal with the Muslim party and forming a government excluding the Tamil elected representatives. The Muslim minority also did not try to make an inclusive package with the Tamil minority in the formation of the administration that would have been a big step towards reconciliation. The postponement of the Northern provincial council elections for 2013 has contributed to re-kindle feelings of distrust and suspicion over the intent of the government. Devolution was introduced to decentralize the administration and devolve power to the provinces as a power sharing mechanism to appease minority aspiration. On the basis of this serious concern has been expressed over the Divineguma legislation since it not only moves towards centralization of power but also draws from the powers of the provincial councils. Apart from these intrusive moves there is also growing concern that in the absence of a Provincial Council in the Northern Province a ‘top down non- participatory approach to reconstruction and development ‘is taking place which does not help the reconciliation process. In fact the fate of the Provincial Councils remain contentious with many sound bites on 13+ ,13- , substitution for the provincial council with other grass roots organizations have all contributed towards misgivings regarding government’s intentions on power sharing with minorities. This matter has been referred to the Parliamentary Select Committee and remains under the purview of the Presidential Secretariat. This further postpones a decision on devolution.
Report of the Board of Officers established by the Army commander
It has been reported in the media of 24th January 2013 that a Board of Officers to study the LLRC recommendations has been appointed by the Commander of the Army to identify areas relevant to the army and to work out a plan of action to address the areas so identified. Their report has endorsed that the resettlement of the IDPs, rehabilitation of ex- LTTE cadres, disarming of militant groups and de-mining have already been successfully implemented. They also referred to the reduction in the numbers from among the forces in the conflict areas; however their overwhelming visibility and involvement in the affairs of the community has been looked upon as a situation that detracts from progress in the reconciliation process. While there is appreciation of the work done by the forces in collaboration with civil society in the construction of houses and digging of wells etc the sentiments expressed at the Bishop’s Conference was that the “frequent presence of troops among the war affected people does not create an atmosphere conducive to the restoration of normalcy as there is a sense of sub- conscious fear of the uniform’. Their suggestion was also that local government institutions should be established and strengthened including the Provincial Council.
Disarm persons with unauthorized weapons/ prosecute offenders
Along with the recommendation to reduce armed forces LLRC recommended that illegal armed groups be disarmed as they contribute to an environment of impunity and affect the peace and security of the place. Despite the claim by the Government that militant groups have been disarmed, ground situation speaks to the contrary. Incidents of attack on the Uthayan newspaper office, acid attack on late MP Maheswaran’s brother and more recently the “invasion” on the university and attack on the Tamil students(having segregated the Tamil students from the Sinhalese students) , some of whom continue to be detained for rehabilitation without court order, are examples of the presence of armed groups legally or illegally constituted. Crime and acts of intimidation are on the increase as reported in the media. Recurrence of such incidents reminiscent of the ‘conflict period’ is what the Commission recommended should not be allowed to occur. Groups with agendas of their own destroy the peace in the country while they escape accountability. On this subject National Action Plan states that the strict enforcement of the provisions of the Offensive Weapons Act/ the firearms and explosives Act and the successful prosecution and legal action against offenders will be taken. This is the reach in the action undertaken by the authorities.
Enshrine the Supremacy of the Rule of Law
The Commission reiterated in consonance with the views elicited from the interviews with the public that the end of the war must see the application of normal laws of the land that uphold the supremacy of the law. In this regard, the withdrawal of the emergency Laws were welcomed by many and at the time the expectation was that the PTA too will be withdrawn soon after. This did not happen. In fact legislation was passed recently permitting the detention of persons for more than 48 hours without reference to the Court which is a further regressive step.
The Commission also observed that ‘political interference adversely affected criminal investigations. Ineffective law enforcement and poor investigative procedures have led to serious concerns regarding the independence of the criminal justice system. The US delegation that is visiting Sri Lanka at the moment has also “noted with concern the impeachment that was carried out in defiance of a Supreme Court order” and added that “it calls into concern the separation of powers in Sri Lanka.” A general trend of impunity is detected all of which affects the accelerated progress to achieve lasting reconciliation, a durable peace and the investment climate.
In many high ‘profile’ criminal investigations not much movement is seen; in fact investigations of attacks and disappearances have remained inconclusive. It has been a matter of concern that no attempt is made to investigate the killing of 600 policemen or the border village killings in order to provide support to the concerned families. The recommendation by the Commission to delink the police department from the armed services and to establish a permanent Police commission to ensure the maintenance of professional conduct by the police officers has been rejected by the Board of Officers constituted by the Army Commander. While conceding that in many countries Police come under the Home Ministry or Provincial Administration it was their considered opinion that since Sri Lanka faced ‘widespread internal disorders’ the police force had to be placed under the Ministry of Defense.
Judicial Review of Legislation/Independent public Service Commission
The recommendation to establish a constitutional provision for judicial review of legislation introduced after reaching a consensus on an appropriate constitutional amendment to provide for an adequate time frame to challenge proposed legislation has also been set aside as another item on the agenda for the Parliamentary Select Committee when it is constituted. The need to have an independent Public Service Commission to remove political interference in the functioning of the service by enabling recruitment and promotions in the service in conformity with the equity provision in the constitution is said to be ensured by the establishment of the public service commission. Time will be the judge of its independence.
Minimalist Approach in the Action Plan
In general, the shortcoming observed in the action program is that contrary to the recommendations of the Commission calling for new procedures and institutions, the government has placed faith in the existing institutions as well as the established procedures. The preference appears to be to make ad hoc changes to support the implementation of the recommendations. For example, LLRC calls for the establishment of Special Commissioner of Investigations to investigate alleged disappearances whereas the NPA invokes the existing procedures to enhance the government procedures. Again, LLRC calls specifically for legislation to criminalize enforced involuntary disappearances. The NPA does not envisage the formulation and presentation of legislation to Parliament.
In this context Malcolm Fraser’s quote becomes appropriate to Sri Lanka’s experience. The Commissioners may well have taken inspiration from the quotation of Malcolm Fraser citied on the first page. In its recommendations one clearly finds the unbroken plea for ‘changes of heart and spirit” which is really the magic wand to accelerate the reconciliation process. The government has stumbled on to development as the modus operandi for the integration of the nation state, while reconciliation and healing of the wounds of war that require ‘symbolic as well as practical action’ have remained under emphasized. ‘Symbolic and Practical’- ‘symbolic’ because familiar place and persons and institutions will be therapy to the community that has undergone severe trauma; and ‘practical’ to act on the needs of a post conflict society- the simple building blocks necessary to ‘breathe and live, yet again’ in a peaceful environment with a fall back to the old routines in their daily life; life together with whoever is alive from among their family and friends. In this context schools and playgrounds play a prominent part to provide a semblance of normalcy to the lives of their children so that in time they can work their way out of the morass of complications – conflict, violence and trauma and focus on aspirations for a hopeful future for their progeny. In such a path suspicion and mistrust, threats and intimidation, misinterpretation and misunderstanding and above all inequity and lawlessness will have no place. This has to be the path for reconciliation and this moment in history is precious for the victims of violence in the entirety of the country. The recommendations of the LLRC map out in detail directions of how it can be achieved.
Reconciliation is a process that calls for people to people understanding to build trust and remove distrust and anger as part of the healing process. While the State can facilitate the process it is the involvement of civil society that can bring about the transformation from the hostile polarized state to one of amity. The joint effort of all the communities to build the nation together as equal partners will be the catalyst necessary. Creating new enemies and new phobias will be suicidal. This calls for political leadership and commitment that should come from policy makers to knit the nation together and make it a vibrant entity, bonding and facilitating the growth of a plural society and taking the people along this path of social integration conscious of the different identities in the multi- cultural polity.
A gleaning of confidence in the progress made in reconciliation can be cited from two attributions from international sources. One, the US sponsored ‘procedural resolution’ on accountability issues in Sri Lanka (for the March Human Rights Council sessions )and the Catholic Bishop’s Conference in Colombo, both refer to the significant progress made in certain areas as in infrastructure development, demining and rehabilitation and release of former combatants. The UN in June this year delisted Sri Lanka from “List of Naming and Shaming list” because Sri Lanka has “successfully completed Security Council- mandated programs to end the recruitment and use of children” and that children in armed conflict is no longer an issue in Sri Lanka as they have been successfully rehabilitated and reintegrated into the daily life in Lankan society.
However the US Resolution refers to the lack of information on missing persons and the continuing trauma for the families as they are unable to bring a closure to their grief. The resolution states “there is a desire for accountability with regards to extrajudicial killings. There needs to be healing and there cannot be reconciliation without accountability”. Most importantly media must have free access in the North and the East and people must be assured of the right to information. Legislation has to be enacted to ensure right to information, a legitimate entitlement of the people in a democracy denied for too long.
Two, the grant from Japan of US$445,000 for the Family Tracing and Reunification Unit FTRU is for the use in the documentation and tracing of missing children, to support their parents and relatives, as well as to provide psycho- social support for the families and to build capacity of probation and childcare services to enable them to create commitment in the tracing and reunification of missing children and build awareness among communities. The fund will be the joint responsibility of both the UNICEF and the government of Sri Lanka. This unit was setup in 2009 to help families of children who were displaced and went missing during the conflict. The FTRU has so far recorded 2,431 persons tracing applications, of which 745 are related to children. To date 148 children, most of them between the ages 16- 18 years have been matched and referred to probation for tracing, verification and reunification. Although the success rate is not significant it is still encouraging that there is institutional support available and that with additional funds from the Japanese grant of US$445,000 and the joint participation of UNICEF the Sri Lankan government will be able to accelerate progress in this program.
This article is part of an initiative to document and share the progress of the Sri Lanka government’s official reconciliation process. If you are interested in finding out more about the implementation progress of the LLRC recommendations, please visit Vimansa, a website independent of Groundviews.