Photo courtesy REUTERS/Dinuka Liyanawatte
Despite the many limitations and criticisms levied at the final report of the LLRC, it must be recognized that in the presentation, the report reached a level of professionalism, objectivity and breadth in scope, within the relatively short period of time mandated to the Commission.
The much talked about Truth and Reconciliation Commission of South Africa was not without its critiques. Many felt that the TRC was “weighted in favour of the perpetrators of abuse.” The ‘highest – profile of these objections’ was filed by the family of prominent anti – apartheid activist Steve Biko who was killed by the secret police and whose story was featured in the film ‘Cry Freedom.’ The family felt the TRC “was a vehicle for political expediency” which denied them their ‘right to justice’. Opposing amnesty for his killers, they brought legal action against TRC as unconstitutional. There will be no report that will be free of criticism or be able to satisfy everyone.
There are several recommendations made by the LLRC if/or when implemented will set the nation more than half way to building trust and confidence among the parties to the conflict and bring about peace through improved governance resolving some of the urgent problems facing the country. It is time that Sri Lankans learn to use the conflict situation the country has gone through as a ‘catalyst for discovering and creating resolutions’ to promote understanding within and among the communities. Obviously the responsibility to implement the recommendations within an agreed time frame rests squarely with the government. It is hoped that the government will have the political will to implement the recommendations presented by the Commission mandated by the President himself. If the implementation is perceived to be tardy, then it will be up to the religious leaders and civil society to alert the government to the urgency for implementing the recommendations.
The recommendations touch on most of the important aspects essential for reconciliation and good governance.
Although the end of the war points to the State as the victor, a sober reflection of the post war scenario will reveal that wars do not end in victors and losers. This war is no different; the victor will emerge only when reconciliation, rehabilitation and reconstruction processes have achieved their targets and discussions on the war and the post conflict period becomes a thing of the past. The victors must emerge from both sides, from the majority and the minority communities looking to the future with a common vision for harmonious relationships, shared powers and shared resources that would bring progress to the people. Constantly looking out for divisive politics will get the country nowhere. The country must learn to make compromises and get over the ‘ugly patches’ (the world is full of them) and look to give the next generation better opportunities so that they will become achievers and not losers.
The nation must note the positive features of the report and adopt a multi- pronged attack in the implementation process. There must be just one focus, that of building a united community of people living together as equal partners within the country. What better way to begin this process than by addressing the issues on moral introspection? The LLRC has placed moral responsibility for the origin and the continuation of the conflict on both the political leaders and the civil society of both Sinhala and Tamil communities; the political parties for their failure to reach a consensus and arrive at a solution acceptable to the Tamils; the Tamil political leaders for promoting and supporting a violent armed campaign to secede employing terrorist methods against both the Sinhala and Tamil people. The fault lines are highlighted not to critique the offending parties but to fix culpability as a way of cleansing the guilt and ensuring that it will never be repeated again. The Commission has called for a joint declaration of apology to the country from leaders from all sides with “forgiveness and compassion” in the minds and actions of all the stakeholders.
The Commission has recommended that a ‘‘commemorative gesture’ be made on the national day, to express solidarity and empathy with all the victims of the tragic conflict and “pledge our collective commitment to ensure that there shall never be such bloodletting in the country again”. They obviously believe that this gesture “would produce the necessary impetus to the reconciliation process the nation as a whole is now poised to undertake.” Sadly, in the ongoing dialogue between the government and the TNA the country is witness once again, to the politics of brinkmanship. It is clear that the stakeholders have to become better learners of the past history and the mistakes they have committed to move forward.
The Commission has also recommended the removal of ethnic classifications on Sri Lankan identity cards and the singing of the national anthem in the two languages to help project a Sri Lankan identity. Ethnic identification has been a bone of contention because of the many instances of discrimination and positive hostility created through ethnic identification on the identity cards. If this is adopted at least one source of possible discrimination will be removed. That we lost the opportunity to utilize the occasion presented at this year’s National Day to sing the national anthem in the two languages is to be lamented, while still holding on to the hope that this can be changed in the future.
Sri Lanka’s communal history of hostility and violent upheavals has been almost always fuelled by irresponsible speeches inciting or actively provoking hostilities among the ethnic groups. The Commission has directed that deterrent laws to prevent ‘hate speech’ be enacted and that the laws be strictly enforced.
In this connection attention is directed to some members of the diaspora, drawn both from the supporters of the LTTE and the Sinhala Buddhist lobby who continue to work towards dissension despite the conclusion of the war. To bring about reconciliation with these groups the Commission has recommended that the government and other stakeholders engage with the ‘hostile diaspora’ to mute the growing animosity and to constructively address their concerns in order to harness the ‘potential’ of the expatriate community. This will also help the country to improve its profile internationally as well as with those countries where the diaspora groups are domiciled. The recommendations of the LLRC calling for action to facilitate easy travel, dual nationality status, and the dispatch of remittances, all of which disproportionately affect minority communities, are matters that can be adopted without difficulty.
To strengthen the reconciliation process and reduce tensions amongst the men and women who were with the LTTE and who have since passed through the rehabilitation program, the Commission has recommended that they be effectively integrated into the life of the community. Some progress has been made in this area already and it is predicated that giving priority to this aspect would bring about restorative justice to the ‘war victims.’ There are also in the North and the East, women, war widows, children, elderly, disabled and internally displaced persons who have no access to basic needs. Relief is suggested through livelihood programs, child friendly environments, support the elderly and disabled, assistance with housing and clear title to land. These are all areas of utmost importance to the people and will give them a chance to pick up their lives and with personal progress they will move gradually towards reconciliation.
Media Freedom and Right to Information Law
Several inhibiting features that diminish the quality of democracy within the country have been observed, commented upon and recommendations suggested. The Commission by several direct and indirect ways has made reference to the ongoing violation of democratic rights by the state, the administration and by powerful individuals with political patronage. In any democracy media is an important player and is considered the guardian of people’s interest. In the post conflict period media has a particular role as “Freedom of expression and right to information …universally regarded as basic human rights play a pivotal role in any reconciliation process….” The incidents of human rights violation such as physical attack, killing and kidnapping of media personnel and destruction of media property have been far too many to be overlooked. The Commission has pointed out that almost all of the investigations remain unresolved, with the perpetrators continuing to be free without any serious attempt made to subject them to the judicial process. They have stated that it is the responsibility of the state to ensure that the freedom of the media is not tampered with. They have suggested that attacks on the media should carry deterrent punishments; that investigations, prosecution and disposal of cases should be relentlessly pursued to build public confidence; that the government should ensure free media movement in the North and East to help in the exchange of information, and that the government should enact legislation to ensure the right to information. These have been comprehensive, constructive recommendations, made to sustain an independent media, in “keeping with democratic principles and relevant fundamental obligations.”
Despite the withdrawal of emergency laws and the possibility to return to governance under normal laws of the country, there still exist fear and insecurity both in the south and in the conflict areas where several disappearances have occurred following surrender/arrest, abductions, and arbitrary detention under emergency or Prevention of Terrorism Act. The field visits by the Commission also provided them with sufficient evidence on human rights violation in the conflict area. The Commission took the onus to hold the state accountable for persons taken into custody and suggested institutional support to investigate the charges of rights violations. A Special Commissioner of Investigation to be appointed to look into alleged disappearances and pass the evidence gathered to the Attorney- General and if the evidence is admissible to initiate criminal proceedings; appoint an Independent Advisory Committee to monitor status of anyone taken under Public Security Ordinance or the PTA as well as those held for long periods of time;
Information on missing persons to be made available to the public, a centralized data base of detainees and a household survey of the dead and injured civilians as well as damage to property were recommended.
The Commission also recommended that IHL be made applicable at all times and those arrested be produced before the courts with the follow up of legal proceedings; compulsory directive to notify families of place of detention and all releases to be effected through the courts; legislation to be enacted to criminalize enforced or involuntary disappearances; island wide human rights education programs targeting schools, youth, members of security forces, and the police; strongly advised that law enforcement authorities in cooperation with ICRC take the responsibility to trace the whereabouts of missing persons and keep relatives informed.
The pressure on the next of kin, not knowing whether their loved ones are living or not is another aspect of this problem addressed by the Commission. They recommended that where death could be confirmed death certificates should be issued which will help to bring about closure as well as give them compensation if the claim is justified; in cases where the breadwinner is detained it was recommended that financial aid and legal assistance be given to the families.
If these recommendations are implemented much of the anxiety faced by the relatives from lack of information can be reduced. The possibility of the rule of law prevailing will help to build trust and confidence in the minds of the people.
Illegal Armed Groups
It is widely accepted that these armed groups are responsible for abductions, wrongful confinement and extortion. They move around freely creating fear, threatening the safety and security of the people and denying to them their space for peace. The Commission has reiterated its Interim Recommendations, that these groups be disarmed; that criminal proceedings be taken against offenders found guilty; that crimes allegedly committed by criminal elements have not been taken to bring about closure. The Commission urges that a full investigation for example of the Trincomalee massacre of five students in 2000, and 17 aid workers from ACF in Muttur in 2006, of Karuna and Pillayan’s involvement in the killing of 600 surrendered police officers in 1990 should be undertaken primarily because of the nature of the crime and its bearing on reconciliation. This also includes the alleged extortions by EPDP members, conscription of children by LTTE and TMVP. Wherever evidence is available they have recommended that the accused be prosecuted. They also made the pertinent comment that had these groups been restrained it would not have been possible to carry out the attack on the Editor of Uthayan newspaper.
The Commission has also raised the issue of disappearances and asked that investigation be undertaken and if evidence is available punish the offenders. If the government is to appear fair they must act fast and put all these matters to rest.
Independence of the Judiciary and the Rule of Law
Many persons making representations to the Commission have stated that justice is the casualty in cases where crimes have been committed by persons with political patronage. The deterioration in the rule of law is clearly visible; this has created a high degree of inequity and impunity in the system. The failure of the authorities to conduct conclusively investigation of criminal actions, to the politicization of the law enforcement processes particularly in police administration. The Commission is of the view that the matter warrants a full investigation of the judicial system. This has destroyed people’s faith in the legal process and the independence of the judiciary; as this is also seen as a major denial of the fundamental rights of the people, the Commission has recommended that the judiciary should remain an independent body with transparent legal processes with strict adherence to the rule of law. The recommendation for the establishment of the Public Service Commission and of an independent Police Commission, both of which were a part of the now defunct 17th Amendment, is a welcome step. It was also suggested that the Attorney General’s Departments be set up in the provinces to advice the police department on the legal processes in criminal investigations, prosecutions etc. However this will work well only if and when the legal processes can be free of political interference. There are significant recommendations and should be put into effect with the urgency Lankan situation demands.
Return to Civilian Administration
The Commission has made a categorical statement that it is important that the Northern and Eastern Provinces revert to civilian administration on matters relating to the day to day life of the people. They therefore recommended that there should be demilitarization and the phasing out of all involvement of the security forces in the civilian activities in the North and East particularly in agriculture, fisheries and land utilization. It is also recommended that Human Security Zones be ‘rationally reduced’ to enable people to return to normal civilian life that would ensure free movement and greater security. The Commission has also stated that the police department being a civilian institution should be maintained as such and recommended that the police department be delinked from the institutions dealing with armed services.
Devolution of Power
To hasten the peace process the Commission has noted that serious and structured dialogue with all political parties and the minorities has to be undertaken based on carefully formulated proposals by the government. The Commission advocates a political settlement based on devolution of power within the unitary system with its territorial integrity secured. People centric devolution (with the shortcomings of the provincial council system removed), will empower local government institutions to ensure greater people’s participation at the grass roots level. The Commission commented negatively on the attempts by the Tamil leaders to internationalize the ethnic issue as counter-productive achieving nothing except to exacerbate the problem resulting only in impeding progress towards reconciliation and an acceptable solution.
The LLRC report underlines the need to get on to a fast track to come to a settlement on the devolution issue and hasten the establishment of sustainable peace. It is suggested that serious and structured dialogue with all political parties and the minorities be initiated. Progress in the areas mentioned above is critical and overdue as no part of the interim report of the Commission has been tackled to date. To work out an acceptable solution to devolution the cooperation of all parties to the conflict is sought. The proposed Parliamentary Select Committee should conduct its discussions on the basis of carefully formulated proposals worked out by the government together with technical advice from competent persons. The Parliamentary Select Committee must not be seen as a delaying tactic but should be used to clarify issues of the conclusions arrived at the dialogue between the government and the Tamil representatives.
In today’s context land has become a source of conflict; while it is difficult to immediately restore pre-conflict status, it is suggested that a defined land policy accepted by all political parties be worked out with a proviso that it should not be used to change the demographic patterns of a given province, a longstanding fear of the minorities. The establishment of a National Land Commission has been suggested to draw guidelines for land policy. This has been a part of the 13th Amendment although it has not been implemented. It is however important to see that “illegal land transfers and alienation triggered by violence, intimidation and ethnic cleansing are not perpetuated or institutionalized”. Even in instances where land was acquired it was stated that a definite time period be allotted for its use.
Language has been an issue for too long. To bring about a closure trilingulaism, mixed schools with children from different ethnic backgrounds, school curriculum to include compulsory learning of the two languages, Sinhala and Tamil for all; government offices to have Tamil speaking officers, police stations to have bi-lingual officers, National anthem to be sung in both languages are some of the recommendations to bring about ethnic harmony.
As seen in the text of this paper the LLRC Report contains observations and recommendations on a wide range of subjects which cover good governance, devolution and civilian administration, language rights, rights violations and application of HRL and recommendations to lighten the burden of the families of missing persons, restoration of the rule of law and the independence of the judiciary, de-politicization of governance processes etc. It is true that most studies commenting on the report concentrated on the accountability issues, but in this paper a conscious effort is made to limit the analysis very narrowly to the positive aspects in the report which lends itself to quick implementation. If the recommendations referred to here are implemented within a limited time frame there is no doubt that a great deal can be achieved to bring about healing of wounds, restorative justice and reconciliation, a big step towards nation building.