Draft National Policy On Reconciliation: Sri Lanka – Working Document

By Prof Rajiva Wijesinha and Salma Yusuf

Office of the Presidential Advisor on Reconciliation, Presidential Secretariat, The Government of Sri Lanka

Note: Current status and future plans: The National Reconciliation Policy drafted by Presidential Advisor on Reconciliation Prof Rajiva Wijesinha and Sri Lankan Human Rights Lawyer Salma Yusuf was circulated a couple of weeks back for observations to political party leaders, to discussion groups covenened by the Office of the Presidential Advisor on Reconciliation, with the hope of having a cross-party and civil society consultation next week, and work on consensus and how to move forward. Following is the draft document.

Background and History of the Conflict

The conflict in Sri Lanka can be traced back to the perception of its Tamil population of discrimination and unequal treatment by the State. Many Tamils believed the State and its structures favoured the interests of the majority community, and several changes in state practices were seen as discriminatory and unjust. The Tamil community’s campaign was against State structures and policies considered discriminatory of the Tamils rather than against the Sinhalese. The failure of the dominant sections of the Sinhala polity to address these grievances, the failure to rigorously examine changes in policy and practice by successive governments, so as to take into account possible adverse impacts on minorities and avoid these, the subsequent creation of the Tamil political leadership in asking for reform of unrealistic expectations among the Tamil youth, all contributed to the birth of Tamil militancy. Finally the democratic Tamil political leadership lost control and the LTTE hijacked the Tamil struggle, with disastrous consequences for Tamils as well as the country as a whole.

In its assessment of relations between the different ethnic groups in Sri Lanka the Soulbury Commission referred to a permanent Sinhalese majority of more than two thirds of the total population, with the next largest segment (Tamils exclusive of up-country Tamils) being around ten percent. The Commission argued that the character of majority-minority relations was shaped by these demographic realities and governed by deep seated predispositions entrenched in the consciousness of both majority and minority which led to apprehension and distrust.

Though some Tamil grievances were expressed early on, it was only after 1956, following the Official Languages Act, that the political agenda of the Tamil parties underwent a fundamental change. For the first time after independence the statement of Tamil grievances is clearly presented in the Bandaranaike–Chelvanayakam Pact and explicitly linked to the need for political power at the regional level.

The Bandaranaike–Chelvanayakam Pact was unilaterally abrogated by Prime Minister Bandaranaike. Thereafter, broken pledges on the part of successive Governments became a recurrent feature of the Sinhala–Tamil relationship and an overriding Tamil grievance. The Dudley Senanayake–Chelvanayakam Pact on District Councils had to be laid aside. Then the 1972 Constitution consolidated the unitary nature of the constitution and failed to provide any form of devolution. But the decisive rift in the inter-ethnic relationship came with the anti-Tamil riots of 1981 that were accompanied by a government motion of No-Confidence in the leader of the democratic Tamil opposition. When this was followed by the Black July of 1983, and the failure of the then Government to provide adequate protection to Tamil citizens, while driving the main Tamil political party out of government, militancy took over as the preferred option for many Tamil youngsters.

With the emergence of armed groups in support of Tamil demands the conflict took a different complexion with attacks and counter attacks resulting in the deaths of large numbers of civilians. This allowed the government to refer only to a terrorist problem and ignore the cause, thus contributing to the continuing political problem receiving less attention. Attitudes began to harden amongst many on both sides of the communal divide, making it difficult for moderates to push for a just solution through negotiations.

Successive Governments of Sri Lanka attempted negotiations with representatives of the Tamil people which broke down for multiple reasons. The Liberation Tigers of Tamil Eelam (LTTE) took advantage of such negotiations at times in its campaign to establish dominance and decimate all other Tamil groups and persons advancing a Tamil voice in national politics.

All this led to what is inevitable in armed conflict, the loss of civilian life on both sides. With the defeat of the LTTE in May 2009 the armed conflict came to an end. However, the root causes of the conflict remain and have to be addressed in order to prevent the recurrence of the past in whatever form.

Further, the war caused additional negative fallouts such as physical destruction to infrastructure and an amplification of socio-economic deprivation in the war-torn areas of the country. It also led to increased suspicion and resentment amongst the three main ethnic communities in the country, and widened the gap in trust and understanding.

The Sinhala Community

In trying to bridge this gap, the Sri Lankan State must not lose sight of the need to allay the fears and anxieties of the Sinhalese who, though a majority, have their own share of concerns, both real and imagined. Many actions that discriminated against minorities sprang initially from a widespread perception amongst the Sinhalese that they had been discriminated against by the British. Assertion of the need for government to function in the language of the majority, positive discrimination to compensate for perceived educational inequalities, land redistribution to make up for the expropriation of peasant lands for plantations with the concomitant importation of labour from India, all sprang from the need to make up for deprivations imposed by government. In the process however, they led to deprivation of the minorities because of failure to explore comprehensively the implications of any actions. Similarly, any solution meant to resolve the problems of Tamils and Muslims now must not be at the expense of the Sinhalese. That is not only unfair and unjust, but it would make such a solution unsustainable in the long run.

With regard to specific grievances of Sinhalese in villages adjacent to former conflict areas, the LLRC Commission notes that the Government has tended to overlook those who lived in villages such as Weli Oya, Moneragala and Kebethigollawa, who survived the terror perpetrated by the LTTE. The people in these villages continued to live under tremendous threats to their lives without migrating to safe areas in the South. They faced security risks, hardships in education, disrupted and fractured livelihoods, paucity of health care and transport facilities. Moreover, the Sinhalese who resided in the Eastern Province faced inadequacies of the administrative system. For instance, Weli Oya is categorized under a number of districts, a section under the Mullaitivu district, a section under the Vavuniya district and another under the Trincomalee district. As a result numerous difficulties were faced by people in the areas where work is done in Tamil, whereas people living in Weli Oya are predominantly Sinhalese.

The Tamil Community

The perception of discrimination and unequal treatment within the Tamil population arose from a series of administrative changes, such as discrimination against the use of the Tamil language in a context where education was segregated by language. This contributed to deprivation in regard to jobs, which was exacerbated by the State being the predominant employer in the context of Statist economic policies. Positive discrimination policies in education struck hardest at the well educated Tamils in the North. The perceived discrimination was seen as arising from the fact that central government and its decision making processes were far removed from the needs and aspirations of the Tamil people. The many youth rebellions all over the country testify to the sense of alienation felt generally by the rural population, but in the North and East this sense was increased by the absence of representation at decision-making levels in government. In addition, there arose resentment over total State control of lands and colonization schemes which seemed disproportionately beneficial to the majority community.

The Muslim Community

The Muslims, though not direct protagonists in the armed conflict between the LTTE and the Sri Lankan State, have undergone considerable suffering during the years of fighting in the North and East. The forcible eviction of the entire Muslim community from the Northern Province by the LTTE, the massacre of hundreds of Muslims while worshipping in mosques in Kattankudy and Eravur, the takeover of lands belonging to the Muslims in the Eastern Province, the deprivation of the livelihoods of Muslims in the conflict areas and the lack of adequate security to the Muslims were a few of the phenomena that contributed greatly to the sense of insecurity and unease that Muslims faced because of the conflict.

Unlike the Tamil community which challenged State structures as a means of addressing grievances, the Muslims took a separate political path and preferred to engage with the State and work within the mainstream of Sri Lankan politics. This created a great deal of misunderstanding between the Tamil and Muslim communities and caused a strain in their relationship.

Problem Analysis

Discrimination against the Tamil population which is seen to lie at the root of the three-decade conflict has been attributed to the struggle between a majority community and a minority community, where the latter seeks space to operate within a larger polity. The notion of democracy dictates that a balance must be achieved for this in a manner that is not at the expense of any community.

The balance to be found would need to be premised upon the common need for integration. In negotiating such a balance, trust is a prerequisite. There currently exists a trust deficit which has contributed to the view that, as the minority moves towards advocating geographical separation, any concession by the State will be detrimental to the majority community. Conversely, the Tamil minority is labouring under a lack of confidence and trust as a result of failed aspirations and expectations.

The Challenge

As a result of the long-standing strife and struggle, two key challenges remain to be addressed so as to propel the country towards enduring and sustainable peace and prosperity. First, the root causes of the conflict need solutions which are satisfactory to all the communities and peoples of Sri Lanka. Second, there is a need to dispel suspicions and weld all communities into and within the fabric of one nation. The LLRC report of November 2011 states that ‘…despite the lapse of two years since the ending of the conflict, the violence, suspicion and sense of discrimination are still prevalent in social and political life. Delay in the implementation of a clearly focused post conflict peace building agenda may have contributed to this situation.’

The Vision

To build a shared future for the people of Sri Lanka based upon equality, justice and dignity.

To ensure that all citizens have equal opportunities without alienation and discrimination of any kind.

To wholeheartedly accept individual idenity and respect cultural diversity within a united Sri Lanka

To acknowledge and address the needs and aspirations of all communities residing in the country

To encourage a sense of caring to be shown by the State to all citizens and communities and acknowledge and address fears and insecurities of all communities residing in the country.

To foster a sense of belonging in all peoples and communities irrespective of language, ethnicity, race or religion.

The Goal

Harmony and reconciliation for sustainable peace and prosperity through improved inter-communal relationships based on trust, equality, confidence and mutual benefit

The Opportunity

The end of the armed conflict has opened up space to address the task of nation building unhindered by pre-occupation with a debilitating armed struggle which was a drain on the nation’s resources. The decimation of the LTTE has created a vacuum that long dormant economic forces have moved in to fill. With the Sri Lankan Government’s efforts to ensure large infrastructure development in the past two years, healthy growth rates have been achieved. There remains a need to take further steps so that economic achievements may be translated into meaningful and equitable benefits that will impact on the life of every Sri Lankan. In this context, there remains a need for political reforms that entrench empowerment and a willingness to bring closure for the suffering of individuals and communities as a whole. The LLRC report of November 2011 states that ‘people from all corners of the country who came before the Commission gave an almost palpable impression that this is Sri Lanka’s moment of opportunity for Sri Lankans to chart a vision for a harmonious future for our nation and a wholesome Sri Lankan identity.’

The Strategy

Interdependence between the three communities and the role of the State

The three communities must also work hard to create governance, administrative and social structures that create and foster interdependence among themselves. This will help create the feeling in each of the communities that their progress or downfall is inextricably linked with the progress or downfall of the other communities and thus help to inculcate a strong sense of nationhood among Sri Lankans.

The addressing and resolution of political issues affecting the minorities is an important part of a strategy to achieve national reconciliation leading to nation building. In this task the Sri Lankan State must play a critical if not a lead role. It must be realized that although the majority of the Tamils did not support and or approve the LTTEs resort to an armed struggle, as a result of the defeat of the LTTE and the fallout of the military campaign to achieve that end result, the Tamils are a demoralized and wounded community.

The LLRC Report of November 2011 states that ‘Many who appeared before the Commission emphasized that what had been achieved by the Security Forces should be invested in a political process…The Commission again found significant common ground among a broad spectrum of persons who made representations that this task can and and should be achieved whilst upholding the territorial integrity and sovereignty of the nation and safeguarding the long cherished Sri Lankan values of democracy, tolerance and power sharing.’

The Strategy

A Recovery and equitable development

It is acknowledged that a sense of grievance that led later to separatism arose through perceptions of discrimination and inequitable treatment. Government schemes to promote infrastructure and employment opportunities seemed confined to Sinhala majority areas. Whilst this may have been due to populist policies based on electoral considerations, it created a strong sense of deprivation.

Most upsetting perhaps was the introduction of a language policy that, whilst maintaining segregation in education on the basis of language, privileged those who knew Sinhala with regard to state employment as well as dealings with officials. This extended later to restrictions on educational opportunities based on language distinctions. Though initially intended as a means of positive discrimination, implementation was callous, and in one instance the system was changed after unfair allegations with regard to Tamil language examiners, who were cleared following inquiry.

Though measures have been taken to promote equity in development, and language policies have been revised, there is still need of greater committed concern to ensure equity.

For this purpose

• The State shall work towards inculcating a culture where each citizen becomes an active participant in society and feels a sense of belonging and of being Sri Lankan. To this end, the State shall make every effort to identify and address the social, economic and political structures which caused dissension between communities.

• The Government shall undertake an in-depth study to identify the needs of the people in the North and East to address the question of improving their livelihoods

• The Government will commit to making every effort to ensure equitable resource allocation and development of villages, bearing in mind that the reverse could lead to frustration and communal tension in clusters of villages dominated by different ethnic communities, particularly in the Eastern province.

• The Government will make every effort to ensure that all future development activities are carried out in consultation and with the participation of the local people so as to build ownership to the development activities, as well as give them a sense of participation in nation building.

• Cognizant of the sense of marginalization expressed by Tamil people due to long-standing language policies, and deficiencies in the implementation thus far of changes, and further being sensitive to the perception prevailing among the Tamil people of being second class citizens, the Government shall adopt urgent measures to ensure that the current language policy is satisfactorily implemented, and developed to promote equity as well as mutual understanding.

• Measures shall be taken to take further current measures for recruitment of Tamil speaking police officers, Recruitment to the police and armed services of Tamils and Tamil speaking citizens, with particular attention to officer cadres, should be fast forwarded.

• Recognizing that an independent permanent Police Commission is a pre-requisite to guarantee the effective functioning of the Police and to generate public confidence, the Government shall make every effort to empower such a Police Commission to monitor the performance of the Police Service and ensure that all police officers act independently and maintain a high degree of professional conduct. This will also increase the confidence of the minorities in the impartiality of the Police. Police training shall be given the highest priority, with a change of culture required to emphasize the legal and moral responsibilities of the force and its accountability to citizens.

• The Government will make every effort to promote professional skills training and activities that bring about the necessary attitudinal changes in the public service. Public servants should be guided by criteria, norms and conduct sensitized to the concerns and apprehensions of all citizens, particularly the minorities.

• Bearing in mind the significant lapse of time since the introduction of standardisation as a means of affirmative action by the State to mitigate the imbalance in educational opportunities afforded to different communities, the State shall in the best interests of future generations undertake a careful review of this quota system and work towards the introduction of a merit based admissions system.

• The Government shall pursue actively a programme of equitable distribution of educational facilities and make a concerted effort to minimize any feeling of discrimination felt by the minorities. Further, the Government shall make every effort to ensure that the inequality in the availability of educational facilities in different areas of the country is reduced and eventually eliminated.

• The Government strongly discourages disqualifying students on ethnic or religious grounds, in respect of admission to schools, as being a significant impediment to reconciliation. The Government strongly declares its commitment to developing a pro-active policy to encourage mixed schools serving children from different ethnic and religious backgrounds. Such a policy will be implemented so as to facilitate the admission of children from different ethnic and religious groups to these schools.

• Government shall ensure the return to their original places of inhabitation of all those displaced, Tamil and Muslim and Sinhala, and shall promote living conditions, including access to educational and health and transport facilities, in advance of those available previously. Government shall fast forward the process of ensuring title for such returnees. Where such return is not possible, for reasons based on clearly enunciated national policies, equivalent lands in nearby areas should be provided with appropriate title deeds and facilities. The Government shall in particular facilitate the early return of the displaced Muslims to their places of origin in the Northern Province. Closely associated would be immediate steps to assist in re-building of the mosques, houses and schools destroyed or damaged by the LTTE.

• It is recognized that all victims of the conflict merit compensation, but provision of this through financial grants may not be possible, given practical limitations on state funds. Instead the needs of victims may be addressed through preferential policies, which may include scholarships, loans on easy payment, etc

B Political Participation and Administrative Accountability

It is acknowledged that grievances have been exacerbated by a sense of frustration that the political process has been hijacked by those in power. This contributed also to two youth insurrections in the South, but this sense in the North has been reinforced by the absence of political leaders from that area contributing to decision making, with regard both to national questions as well as those affecting the regions.

In addition, it is generally accepted that decision making on many matters cannot be left to central government, which is often unaware of the ground situation, and has little political incentive to provide swift solutions to problems. This makes both devolution, with regard to policy decisions in certain matters, and decentralization, to ensure swift responses in most areas, a matter of urgency. The ideal therefore is three tiers of government, with clear cut responsibilities, and systems of accountability, to ensure the best possible service to the people.

As a matter of urgency therefore, political negotiations should lead to a readjustment of the Constitution, to promote empowerment of the people. Whilst some matters, in particular those pertaining to national security, interpreted in the broadest sense to ensure financial and food and environmental security etc in addition to physical security, must be the preserve of the Centre, but it is therefore important that the regions too should have a voice in decision making in this regard.

With regard to other matters, it is important to ensure maximum flexibility and safeguards for the citizens of any particular area, whilst preventing hijacking of decision making by parochial considerations. It is therefore vital to formulate, with full consulation, national policy on vital issues such as land and land alienation, education, environmental protection, etc, but to promote decision making at the smallest appropriate levels, in accordance with the doctrine of subsidiarity.

For this purpose the three communities must work hard to create governance, administrative and social structures that create and foster interdependence among them. This will help create the feeling in each of the communities that their progress or downfall is inextricably linked with the progress or downfall of the other communities and thus help to inculcate a strong sense of nationhood among Sri Lankans.

For this purpose

• The Constitution shall be amended to provide for a Second Chamber of Parliament based on the principle of equal representation for all Provinces. Legislation in particular areas should require the consent of two thirds of the Senate in addition to two thirds of the First Chamber, to facilitate a check on legislation that might seem majoritarian in intent. Ordinary legislation shall require to be passed in the Second Chamber too, with provision for joint sessions to resolve any dispute after the passing of a prescribed period.

• Recognizing that the current time frame provided in the Constitution of Sri Lanka for canvassing constitutionality of proposed legislation before the Supreme Court is grossly inadequate, and further recognizing that public intervention regarding proposed legislation is an integral part of a vibrant democracy, the Government shall make endeavours to reach a consensus on an appropriate constitutional amendment, to provide for an adequate time frame to challenge proposed legislation. Post-enactment judicial review for a prescribed period of time after the passing of legislation shall also be made possible, to ensure conformity with the Constitution and its provisions regarding Rights

• Discussions with a prescribed time frame shall be held to remove current ambiguities with regard to the Concurrent List as provided for in the current Constitution. It should be reduced as much as possible, with most functions being allocated to the Province or to smaller units with close systems of public accountability. Provision should be made for working according to National Policy in some particulars, and in others according to Provincial Policy. Where concurrence seems essential, there should be clear mechanisms for resolving disputes based on consultation.

• Financial provision should be clearly made for Provincial authorities by the Centre, and for local authorities by the Province, with autonomy as to usage subject to established guidelines.

• In order to ensure that there is no political interference in the public service and that recruitment and promotions in the public service are in conformity with the equality provisions in the Constitution, the Government shall work towards the establishment of an Independent Public Service Commission without delay. Measures shall also be taken to ensure the independence of the judiciary and the police with regard to the appointment process as well as in their functioning

• Efforts should be made to make the public service and the police inclusive of all communities with special attention to ensuring adequate representation of the population in any area. Though this should not take away from the principle of merit based recruitment and promotion, positive discrimination may be necessary for a limited period to restore the balance with regard to services where currently such balance is lacking

• Ensuring at least bilingualism in the public service and other professions serving the public should be ensured, whilst nationally the culture of trilingualism should be fostered by making passes in any two of the National Languages compulsory, along with Mathematics, at the GCE Ordinary Level Examination

C Justice and Truth and Understanding

It is acknowledged that on all sides there are particular grievances arising from personal loss. Though the attribution of particular responsibility for such losses will not be easy, it is important to look into matters where there is already basic knowledge on which investigation can proceed. However it must be noted that this should not be done in any spirit of retribution. It is vital that the government recognizes that many of those who engaged in acts of terrorism did so under compulsion, and whilst particular deeds may warrant investigation and judicial action, in general perpetrators should be given the benefit of the doubt. Conversely, whilst in a war situation excesses may have occurred, government should, whilst looking into cases where detailed evidence has been presented, avoid a witch hunt.

Equally importantly, it should set in place mechanisms to provide for ready redress, with regard both to the sufferings of the years of conflict, as well as for other problems that might arise.

To these ends

• The Government shall make every effort to give full effect to the Interim and Final Recommendations of the LLRC so as to maintain the confidence of the people in the reconciliation process.

• The Government shall work comprehensively and cohesively to implement the National Action Plan on Human Rights that has been adopted by Cabinet, with particular attention to improving the capacities of and faith in the police, to ensuring better protection mechanisms for women and children, and to streamlining the judicial system to promote confidence in its operations and a reduction of rote remanding.

• The State shall put in place mechanisms that facilitate the acknowledgement of losses and suffering on all sides, accompanied by expressions of empathy and solidarity. Examples of specific mechanisms include recording of all losses, with provision for the issuing of certificates and the bestowal of compensation as appropriate. Declaring that the process of reconciliation requires a full acknowledgement of the tragedy of the conflict and a collective act of contrition by the political leaders and civil society, of both Sinhala and Tamil communities, and that reconciliation can take root only if there is forgiveness and compassion, the Government calls on leaders on all sides to reach out to each other in humility and make a joint declaration, extending an apology to innocent citizens who fell victim to the conflict. Additionally, the State makes a special call to the religious leaders of all communities and civil society to work towards reconciliation, bearing in mind the healing impact such interventions could have.

• Acknowledging the need for the nation to collectively empathize with all victims of the conflict, whether civilian or soldiers, or whether they belong to Sinhala, Tamil, Muslim or other communities, the State should set apart a separate event on Independence Day to express solidarity and empathy with all victims of the tragic conflict and to pledge a collective commitment to ensure that there is no return or relapse to such atrocities ever again.

• Recognizing that the ensuing minority grievances stem from deficiencies in the system of administration and lack of good governance that affect all citizens regadless of ethnicity, will ensure that every citizen who has a grievance out of any executive or administrative act, particularly those based on ethnicity or religion, should have the right to seek redress before an independent institution.

D Implementation

• A multi-stakeholder institutional mechanism shall be established to promote and monitor the reconciliation process. The work of this mechanism shall be reviewed by a Parliamentary Select Committee. The mechanism shall cease to exist at the end of three years unless Parliament decides otherwise.