Northern response shows need for prior consultations

By Jehan Perera

The government’s Adhikaranabhimani programme went to the North of the country,last week, to a mixed reception. In Mullaitivu in the Wanni area, where the last battles of the war took place, the public reception had elements of hostility. Families of missing persons protested and it required police intervention to enable the programme to move ahead. Although intended to promote the concept of “access to justice” the focus of the protests were on the issues of missing persons and those detained for long periods without trial. Both of these have been longstanding and highly publicized issues, which have included public protests, on a daily basis, that have lasted for years at a time.

However, the scope of the programme was much larger than these two intractable issues with a large number of government institutions participating in the four days set aside. These were the Legal Aid Commission, Office for National Unity and Reconciliation, Office for Reparations, Victims and Witness Protection Authority, Department of Debt Conciliation Board, Department of Community Based Corrections, Bureau of the Commissioner General of Rehabilitation, Mediation Boards Commission, Department of Prisons, Department of Registration of Persons, Department of Registrar General, Provincial Department of Lands, Palmyrah Development Board, Small Enterprise Development Division and the Vocational Training Authority.

One of the highlights of the programme was an interaction at Jaffna University which was attended by Foreign Minister Prof G L Peiris and Justice Minister Ali Sabry. These two ministers are championing the reconciliation process, within the government, in which they appear to be in a minority. At this meeting there was a dialogue between the ministers and the university faculty members and students. Among the issues discussed were allocation of more resources for infrastructure and curriculum development. Interestingly, students brought up the issue of engagement with their counterparts in other universities. There was interest on the part of the students to engage on inter-ethnic and other issues with students in other parts of the country.

Speaking to faculty and students at Jaffna University, Minister Ali Sabry queried whether the politics of confrontation, as manifested in the protests against the ongoing programme, had yielded a satisfactory outcome. The implication was that the path of cooperation with the government would be the more beneficial one. In his recent policy statement to Parliament, President Gotabaya Rajapaksa made an appeal to the politicians of the North and East to support the government’s efforts to improve the living conditions of the people rather than engage in divisive ideological politics. However, the need for a recognition of the political rights of minorities to equality as citizens and equity as communities for which power sharing in the political system is also essential.

REVITALISING INSTITUTIONS

The mixed reaction that the Adhikaranabhimani programme received from sections of civil society in the North would be a cause for disappointment in the government team that organised the programme. The Justice Ministry, in particular, had expended a great deal of effort to organise the four- day programme. They mobilised as many as 16 government institutions to go to the field and explain their mission and make preliminary contact with potential service recipients. They had even prepared compensation cheques for those who had applied for such compensation in the past. Organising the logistics for the programme and obtaining the participation of people was an achievement considering both the economic and Covid-related crises that beset the country and make public engagement more difficult.

The mixed reaction to the Adhikaranabhimani programme is one that might have been anticipated. Sections of the Tamil polity, especially in the Diaspora, have seen the reconciliation mechanisms that were developed by the previous government in terms of the commitments made by co-sponsoring UN Human Rights Council Resolution 30/1 of 2015 as being essentially in the nature of charades. From the time of its inception in 2017, the Office on Missing Persons (OMP) came under attack, both physical and verbal, when they attempted to meet people in the North. There was suspicion that the OMP was only a ploy to convince the international community that the government was serious about dealing with the past. Only the Office for National Unity and Reconciliation (ONUR) which was headed by former President Chandrika Kumaratunga took on an active role in engaging with civil society in creating awareness and advocating for reconciliation.

The future of these reconciliation mechanisms appeared to be in doubt when the government changed in November 2019 in the aftermath of the presidential election. One of the first major decisions of the government was to announce its withdrawal from the co-sponsorship of UNHRC Resolution 30/1 due to it being perceived as biased and demeaning to Sri Lanka’s sovereignty. This seemed to suggest that mechanisms such as the OMP, which could potentially be used to pursue claims for justice and accountability, would be abolished. Indeed, the functioning of the Office of National Unity and Reconciliation was suspended. However, all of the mechanisms have been reactivated under the leadership of Justice Minister Ali Sabry and those newly appointed to take charge of them have demonstrated commitment to take forward their mandates.

SHORT BRIEFINGS

The government’s approach to reconciliation appears to be shaped by the need to forestall international action in the form of UN monitoring, EU economic sanctions and the US and the UK travel bans. The latest UNHRC Resolution 46/1 sets up a special UN monitoring unit on Sri Lanka. The EU Parliament in their Sri Lanka resolution of June 2021 threated to withdraw the GSP Plus tariff privilege unless the Prevention of Terrorism Act (PTA), among others, was brought into conformity with international standards. In a meeting with the diplomatic corps, Foreign Minister Prof G L Peiris explained the significance of the reforms. He explained that substantive reforms to the PTA include amendments to the sections on detention orders, restriction orders and expressly recognising judicial review of orders, among others.

Despite the efforts taken by the government to reform the PTA, the civil society response so far has been critical and lukewarm at best. While the amendments are welcome after over four decades they are still inadequate. Without a proper and internationally accepted definition of the word “terrorism” it enables the government to use the term indiscriminately, as occurred recently when a government member threatened to use the PTA to arrest striking train engine drivers. Second, the powers of arrest and detention need to be confined to the Judiciary and extrajudicial powers as vested at present with political and administrative authorities and with the security forces need to be subject to judicial review from the time of detention onwards. Third, the legislation pertaining to the revised PTA needs to be vetted by the Supreme Court.

The problem with the government’s initiatives, both with regard to the Adhikaranabhimani programme and PTA reform is that there were hardly any consultations by the government with either civil society or with those who would be the beneficiaries of those mechanisms.  Foreign Minister Prof Peiris and Justice Minister Ali Sabry did have meetings with the Bar Association and a section of civil society on the reform of the PTA, but they were more in the nature of short briefing sessions rather than being consultations.  While the government’s initiatives may or may not impress the UNHRC and EU, the primary focus should be to win the hearts and minds of the war-affected and other violated people, countrywide, and their local champions, to bring reconciliation to the nation.