By Bhavani Fonseka, Luwie Ganeshathasan and Mirak Raheem
Since its establishment in May 2010, the Lessons Learnt and Reconciliation Commission (LLRC) has generated significant national and international interest, especially following the presentation of its final report to President Mahinda Rajapaksa in November 2011and the subsequent tabling of the report in Parliament in December 2011.
The LLRC was brought back into focus in March 2012 when the United Nations Human Rights Council (UNHRC) passed a resolution at its 19th Session, which called on the government to implement the LLRC recommendations.
While it was unclear at the outset as to whether the government would take substantive steps to respond to the recommendations in the resolution and implement the LLRC recommendations, the subsequent presentation of the National Plan of Action to Implement the Recommendations of the LLRC (Action Plan) has increased expectations that the government is committed to reviewing the findings of the LLRC and acting on some of the recommendations.
Although various government ministers and officials have commented on the implementation of the LLRC, there has been no substantive official statement regarding progress made so far. This is in the context of numerous commissions and committees that have been established in the recent past, where follow-up action has been limited at best.
Since the LLRC report was made public seven months ago, the government has made a series of pledges to implement the LLRC recommendations. Contradictory statements have also been made by government ministers creating confusion as to the government’s overall stance on the LLRC, including whether the government endorses the findings and recommendations of the final report.
Hence, the endorsement of the Action Plan by the Cabinet in July 2012 can be seen as a significant move in terms of the government publicly accepting at least a portion of the LLRC Report and committing to implementing these recommendations, even while there continue to be concerns as to whether the government is genuinely interested in implementing the recommendations of its own volition and as to whether it has the political will to follow through.
For example, the absence of clear information regarding the status of implementation of the Interim Recommendations which the commissioners of the LLRC considered important to engender a sense of confidence among the people affected by the conflict and also provide an impetus to the reconciliation process, raises questions about the commitment of the government to implement the recommendations of the LLRC including those which are not contained in the Action Plan and to move forward on a wider reconciliation process.
CPA has followed the LLRC process, made statements on the process and the Final Report, and proposed ways forward for implementing key recommendations of the LLRC. An overall concern with the LLRC process, including the LLRC final report and now the Action Plan, is the accessibility and dissemination of these key documents to the public, including the timely availability of these documents in Sinhala and Tamil. CPA continues in its endeavour to increase public understanding of and debate on the LLRC process, findings and implications.
This commentary is the most recent initiative in a process of engagement with the government and other key stakeholders to develop and implement the recommendations and provide constructive criticism and suggestions.
This document takes note of the larger problems in implementing the Action Plan and the implications these may have on issues of justice, accountability, peace and reconciliation in post-war Sri Lanka. The table that accompanies this commentary examines each of the issues in the Action Plan, commenting on the proposed actions, raising questions and concerns relating to the implementation and pointing out aspects that are missing.
It needs to be noted that this commentary is an initial response to the Action Plan and does not substantively address issues, including those relating to accountability, justice, peace and good governance, many of which are only partially addressed in the LLRC final report.
Given the limitations and the gaps in the Action Plan and the LLRC process at large, CPA reiterates the importance of re-visiting these issues in a more comprehensive and participatory manner in order to ensure meaningful progress.
The Action Plan
The Action Plan is the first, official document by the government that details its plans to implement some of the LLRC recommendations. It identifies activities, actors and time frames with the maximum time period for implementation being 36 months.
A Task Force was established to formulate the Action Plan and to supervise its implementation but there has been no public statement on its composition, including ethnic and gender representation.
While some have welcomed the publication of the Action Plan, several questions have been raised, including on the proposed actions, as to what the government has done since the final LLRC report was submitted to the President (eight months period) and tabled in Parliament (seven months period) and why many of the LLRC recommendations have been left out of the Action Plan.
Some key concerns regarding the Action Plan are:
Selection of Recommendations: Neither the Action Plan nor any other official statement provides a rationale for the choice of the particular recommendations included in the document as opposed to all of the 285 in the LLRC report.
While it is practical that the government selected a small number of recommendations to implement in the short-term, there are some serious limitations in the Action Plan. In most cases it does not build on nor expand the recommendations. If it had done so, the Task Force could have provided a more comprehensive series of action to address critical problems.
In some cases the selected recommendations and proposed actions are more restrictive than what is in the final report of the LLLRC. For example:
a) No special commission to investigate alleged disappearances is to be appointed under the Action Plan. Instead it states that dealing with disappearances will ‘involve present procedures’ despite the LLRC pointing out fundamental problem with existing modalities.
b) On detention a variety of recommendations are excluded, including specific suggestions on procedures to be taken during detention.
c) The focus in the Action Plan is on disarming individuals rather than on armed groups.
There is an obvious question as to what happens to the remaining recommendations that have not been included into the Action Plan. There is no information as to whether the government will implement these recommendations at a later date or as to whether they are to be completely disregarded.
Recommendations and Actions suggested do not match: In certain instances, the Action Plan lists an action that does not fully address the problem and recommendation made by the LLRC. For instance, the final report of the LLRC recommends tracing (9.81) of children who are missing. The action mooted in the Action Plan is rehabilitation and reintegration of child combatants.
Lack of Clarity: There are a number of areas in the Action Plan where more information is required in order to avoid confusion and to provide clarity on the current status and next steps to be taken.
- Number of recommendations in Action Plan: While Lalith Weeratunga, Secretary to the President and head of the Task Force, states that only 33 of the 285 recommendations listed in the LLRC have been included into the Action Plan, CPA’s own study of the Action Plan and the LLRC report indicates that 82 recommendations contained in the LLRC final report have been included in the Action Plan. This creates significant confusion as to how the Task Force understands the final report.
- Timeline: When does the clock start ticking for the implementation of the Action Plan?
Is it to be assumed that the Action Plan commenced from the date of Cabinet approval (July), which means that activities with a 3-month time frame will be completed by the end of October?
- On-going activities: What is the status of activities identified as ‘on-going’? As the Task Force will be monitoring progress it would be useful for the government to provide information as to what progress has been made.
- Replication of Recommendations: While the Action Plan seems to combine some
LLRC recommendations, in other instances certain recommendations are listed twice in the Action Plan. This has resulted in different actions and time lines to deal with the same problem.
- Confusing terminology: On some issues, the Action Plan uses vague terms resulting in confusion. For instance, on land issues, it calls for implementing policies and circulars without clearly stating which ones. In addition, the Action Plan refers to a Parliamentary Select Committee (PSC) being the relevant implementing agency on six issues but it does not specify whether this would be the same PSC that is proposed to devise a consensus on the political solution or another one.
- Lack of awareness regarding current status of issues: At least in one instance the Action Plan indicates a lack of awareness as to the status of a key issue on which several recommendations have been made. For example, the LLRC recommends a range of activities related to the Land Circular (2011/4) which was challenged in the Court of Appeal in 2011 and subsequently withdrawn by the government in 2012. Regardless of the undertaking given by government actors to withdraw the Circular, the Action Plan provides for the implementation of the now withdrawn Circular.
- Lack of synthesis between the activities set out in the Action Plan and those included in the National Human Rights Action Plan (NHRAP): The Action Plan only mentions the NHRAP with regard to two activities.
However, given the overlap of issues in the Action Plan and the NHRAP there are related questions, including how will the two mechanisms complement each other so as to ensure clarity with regard to which mechanism takes the lead in implementing each activity?
Investigations of violations of International Humanitarian Law (IHL): The Action Plan identifies the armed forces as the primary agency in charge of carrying out investigations into allegations of violations of IHL and the Defence Ministry is listed as the agency, in charge of or overseeing the implementation of these activities. The issues to be investigated include:
- Incidents of attacks on civilians detailed in the LLRC. (9.9 and 9.37a)
- Disappearances of persons after they surrendered/ were arrested. (9.23)
- The Channel 4 video in order to establish the truth or otherwise of the allegations arising from the video footage. (9.39).
The Action Plan like the LLRC final report is selective in identifying activities related to violations of IHL as well as in identifying incidents. The grounds for such selectivity are not provided. The role of the Defence Ministry and armed forces in such processes also raises questions of impartiality and independence. There is also a related question of whether those accused of or complicit in grave violations can investigate the conduct of their own.
CPA reiterates the need for independent investigations of all allegations of IHL violations involving all actors and the need to take steps to hold to account all those who are accused of grave violations. Absence of progress in this area will be a key impediment to achieving justice, accountability and reconciliation in Sri Lanka.
Action Plan ends up contributing to and/or exacerbating problems: In specific cases the Action Plan could end up exacerbating existing problems. For example, although the LLRC report and the Action Plan call for the limiting of the security forces in civilian administration as a specific recommendation, the Action Plan lists the Defence Ministry in a number of action areas thereby making clear that it will continue to have a significant role. Similarly, the Action Plan sustains institutions and mechanisms which should be phased out in the post-war context.
For example, the Action Plan identifies the Presidential Task Force (PTF) for the North and the East as the entity responsible for implementing activities with time frames extending up to months.
In other instances, the actions and recommendations ignore existing problems, thereby impairing the effectiveness of these actions. For instance, while there are a number of actions to strengthen the independence of key oversight institutions, given the politicization of State institutions (including the police and judiciary) and the implications of the 18th Amendment, it is difficult to strengthen the autonomy of these institutions without amending the existing constitutional framework and fundamental changes in the manner these institutions function.
Action Plan does not address fundamental problems: In response to certain issues the Action Plan suggests a series of measures that do not wholly address the fundamental problems as they exist on the ground. For instance, with regard to missing individuals, the next of kin have found existing procedures for tracing their family members (including to verify if these individuals are being held in detention) extremely difficult and the State authorities to be unco-operative.
Hence, the Action Plan’s suggestion of using existing procedures (LLRC Action Plan 9.63) is inadequate. Given the continuing problem of abductions, and in specific instances abducted individual re-appearing in the custody of State actors, there has to be action to ensure procedures are followed and strengthened in order to safeguard the rights of those being detained and reduce the likelihood of subsequent disappearances.
Passing the Buck: In several instances the Action Plan passes on the decision of moving forward on a recommendation to another institution, rather than suggesting a way forward to implementing the recommendation within a specific time frame. In dealing with complex issues such as finding a consensus on the political solution this is understandable, on other more straightforward issues this is problematic. There are three main mechanisms to which recommendations are forwarded for further deliberation and possible action:
- Parliamentary Select Committee (PSC): Six recommendations have been passed onto the PSC for further deliberation. The PSC that has been referred to by government actors and in the media as the mechanism that is to address the ethnic question. It is yet to be constituted and a number of opposition parties have raised objections.
Furthermore, given the complexities and problems relating to achieving consensus on a political solution, adding more issues to the PSC would further burden the mechanism.
Some of the activities identified do not require to be sent to a PSC but can be implemented immediately and directly by the government such as the singing of the national anthem in both official languages.
- Cabinet: The Action Plan indicates that the Cabinet is to decide on a time frame to draft legislation on the right to information but there is no indicator as to the status of previous drafts and why such initiatives cannot be revived as opposed to initiating a whole new drafting process.
- Setting up of other mechanisms: Some recommendations call for a committee to review problems. While addressing some of the problems may require a specific report or study with more detailed recommendations, this suggestion raises obvious questions of effectiveness and can be seen as a more symbolic rather than substantive effort to address problems, especially given the lack of reference to follow-up action once the reports and reviews have been completed. This is problematic especially given the history of commissions and committees and reports of such initiatives, which are yet to be made public and implemented.
Problems with monitoring implementation: Even while the Action Plan claims that some recommendations have been wholly or partially implemented, there are questions as to how these claims can be verified. For instance, according to the Action Plan the military has withdrawn from 95% of civilian activities. This raises the question as to how this figure has been calculated. This also raises a further question of the reliability of the information provided and whether verification of the information provided is necessary and possible.
The Action Plan calls for disarming individuals, rather repeating a key recommendation made in the Interim Report and the Final Report, that of disarming illegal armed groups, as it claims that illegal armed groups are no longer operative, without clarifying how this has been achieved. It is imperative that the government provide credible and substantive information as to progress made in the implementation of recommendations. The Action Plan indicates that a number of recommendations have been completed but in some instances this can be contested, for instance with regards to the claim that illegal armed groups are not operative.
In several activities, the Key Performance Indicator (KPI) does not capture the issues identified and is not a comprehensive tool for determining whether the recommendation has actually been implemented. For example, there is no information in the Action Plan regarding the number of investigations launched, completed and indictments filed, when assessing the activities which call for investigations and for perpetrators to be brought to justice.
In other instances the KPI is vague, with questions as to how progress of a particular activity can be monitored. For example, monitoring and verifying the actual status of the following activity – reducing the involvement of security forces in civilian administration (LLRC Action Plan 9.171, 9.227) – is extremely challenging.
Listed in this document are initial reactions to the Action Plan document. They highlight the need for greater clarity as well as cognizance and incorporation of fundamental concerns from the perspective of democratic governance and meaningful reconciliation. It is hoped that in moving forward, the key government actors involved in the implementation of the LLRC and other related initiatives such as the National Human Rights Action Plan (NHRAP) and the Universal Periodic Review (UPR) engage in a broad discussion with stakeholders, especially affected communities and those who testified before the LLRC.
Increasing public awareness and engagement in this process is essential. In August 2012 the government made public a Sinhala and Tamil translation of the LLRC final report. It is important that the government also translates the Action Plan and takes steps to disseminate these documents widely including through the State media.
CPA recommends that the Task Force established to oversee the Action Plan meet with the former LLRC members to clarify issues and recommendations in the interim and final reports. It is also opportune for the Task Force to engage with other actors involved in initiatives, which have a bearing on the Action Plan such as the NHRAP and UPR.
In order to increase public confidence in the process there needs to be continuous reporting by the government on progress in the implementation of the said activities. Given the time frames provided in the Action Plan, it may be useful for the government to provide regular progress reports, including to Parliament. Furthermore, the implementation of the Action Plan could be strengthened by an Oversight Mechanism, comprising of civil society and representatives from all major ethnic communities that could assist in the monitoring of the plan.
CPA reiterates that the present process of implementing the LLRC recommendations and similar processes is the primary responsibility of the government. CPA hopes that the recommendations made in this and other documents produced by CPA in the recent past are taken on board in the spirit in which they have been presented – that of constructive engagement. More than three years after the end of the war, it is now critical for the government to demonstrate its willingness to fully implement the recommendations of the LLRC and to sincerely engage in processes to achieve justice, accountability and long-term reconciliation in Sri Lanka. courtesy: CeylonToday